Rainer v. Community Memorial Hosp.

• Decision Date: 21 June 1971
• Citation: 18 Cal.App.3d 240,95 Cal.Rptr. 901
• Court: California Court of Appeals Court of Appeals
• Parties: Mary Margaret RAINER et al., Plaintiffs and Appellants, v. BUENA COMMUNITY MEMORIAL HOSPITAL et al., Defendants and Respondents. Civ. 33881.

Page 901

95 Cal.Rptr. 901

18 Cal.App.3d 240

Mary Margaret RAINER et al., Plaintiffs and Appellants, v. BUENA COMMUNITY MEMORIAL HOSPITAL et al., Defendants and Respondents.

Civ. 33881.

Court of Appeal, Second District, Division 5, California.

June 21, 1971.

As Modified on Denial of Rehearing July 8, 1971.

Lillian Finan, Beverly Hills, and Edward L. Lascher, Ventura, for plaintiffs and appellants.

Archbald, Zelezny & Spray and Malcolm Archbald, Santa Barbara, for defendant and respondent Community Memorial Hospital, sued as 'Buena Community Memorial Hospital.'

Overton, Lyman & Prince, Alan L. Rushfeldt, and Fred Lack, Jr., Los Angeles, for defendant and respondent Dr. Fainer.

Benton, Orr, Duval & Buckingham and Edwin Duval, Ventura, for defendants and respondents Drs. Moore and Gstettenbauer.

AISO, Associate Justice.

Plaintiff Mary Margaret Rainer and her parents ¹ brought this action for medical malpractice claiming damages as the result of a colectomy ² and an ileostomy performed on plaintiff on June 20, 1960, and seven subsequent operations from February 28, 1962, to, and including, September 4, 1962.

The case was tried to a jury on plaintiff's first amended complaint, as amended, which purported to plead various theories of recovery in seven counts against various combinations of defendants, which included defendant Community Memorial Hospital (erroneously named 'Buena Community Memorial Hospital' in the complaints; hereafter 'hospital') and defendants Drs. David C. Fainer, James W. Moore, J. F. Gstettenbauer, Woodrow W. Schmela, Henry J. Rulfo, and W. E. Peterson. ³ The jury returned a verdict which awarded plaintiff $7,500 against defendants hospital, Dr. Moore, and Dr. Gstettenbauer 'in connection with the issues involving the sponge left in the May 24, 1962 surgery,' but found against plaintiff and her mother, Mrs. Sarah Rainer, on every other issue submitted to it. Plaintiff and her mother ⁴ appeal from the judgment entered on the jury verdicts.

I.

Plaintiff ⁵ advances the following contentions of error: (1) The trial court erred in foreclosing from jury consideration (a) the issue of 'informed consent' as to (i) the initial operation of June 20, 1960, and (ii) the coccygectomy ⁶ in course of the May 24, 1962, operation, and (b) the question of the independent negligence of the hospital by denial of plaintiff's requests to amend pleadings, exclusion of evidence proffered thereon, and refusal of certain instructions requested by plaintiff. (2) The trial court erred in giving erroneous instructions. (3) It erred in interjecting the 'danger to the doctors' reputations' into the case. (4) The verdict forms and lack of instructions concerning them confused the jury.

We have concluded that plaintiff should have been permitted to have her claims of lack of 'informed consent' litigated, but that all the other contentions of error are not well taken.

II

The factual and evidentiary matters necessary to the understanding and disposition of the points raised on appeal are set forth below, but the narrative is not intneded to be exhaustive. ⁷ Matters relevant to the issue of whether plaintiff should have been permitted to amend pleadings will be detailed when we treat that issue.

Plaintiff Mary Margaret Rainer, born August 11, 1946, commenced having bowel problems in May 1957. Her pediatrician referred her to defendant Dr. James W. Moore, a surgeon, in September 1957. He examined plaintiff physically and diagnosed her problem as ulcerative colitis. ⁸

Ulcerative colitis is a disabling disease characterized by periodic flare-ups and remissions. Its cause is unknown. Drugs and medication palliate the symptoms, but have no perceptible effect upon arresting progression of the disability nor upon minimizing the likelihood of its recurrence. Symptoms of cancer, perforation, and other complications, which may be fatal, are frequently not recognizable until it is too late. There is no known 'cure' short of removing the afflicted organs by surgery; it is undisputed that surgery is required in about 15 percent of all such cases. Whether surgery is necessary in any given case depends upon the facts and circumstances peculiar to that case.

Dr. Moore referred plaintiff to defendant Dr. David C. Fainer, an internal medicine specialist with a subspecialty in gastroenterology, ⁹ who was plaintiff's treating physician from September 1957 to June 1960. After her first visit to Dr. Fainer, plaintiff was placed on a diet and given azulfidine as medication. When she returned on September 21, 1957, Dr. Fainer performed a sigmoidoscopy, which is an examination of the colon between the descending colon and rectum by means of a speculum. A speculum is an appliance for opening a passage of the body to view.

In December 1958 and January 1959, plaintiff suffered flare-ups requiring her hospitalization. She was treated with depomedrol, the preferred drug for conditions such as manifested by plaintiff, but it had to be discontinued because it caused mental disturbances in plaintiff. During this hospitalization, Dr. Fainer performed another sigmoidoscopy and he recorded that plaintiff had chronic ulcerative colitis. It appears that no subsequent sigmoidoscopy was performed prior to the colectomy; Dr. Fainer testified that plaintiff objected to such an examination because of the discomfort it caused her.

X-ray studies made between September 1957 and April 1960 indicated a steady progression of the pathologic condition, plaintiff's colon continuing to shrink, shorten, and become more rigid and narrow. In December 1959, the possibility of a polyp in the descending colon was noted on some of the X-rays then taken. In April 1960 a radiologist's report indicated '(t)hree filling defects, having the appearance of polyps, are noted in the descending colon.' By April, it appeared that the 'polyps' were growing rapidly and that the growth might be cancerous. Dr. Fainer felt there was a possibility that these 'polyps' were harbingers of cancer. Plaintiff's colon contiued to shrink considerably during this four-month period during which she continued to have low-grade symptoms. The April 1960 X-rays were the last taken prior to the colectomy.

In the opinion of defendants Drs. Fainer and Moore, surgery to remove the pathologic colon was now necessary. Accordingly, they recommended it to plaintiff's mother. Plaintiff, in her first cause of action, charged the several defendants named therein (including Drs. Fainer and Moore) with having 'negligently advised plaintiff that she needed surgical treatment consisting of a colectomy and an ileostomy for her condition.' There is no allegation that the surgical operation itself was negligently performed.

While the evidence on whether the advice relative to the need for surgery comported with the learning, skill, and care of physicians and surgeons of good standing under similar circumstances is disputed, the finding of the jury that the advice was within that standard ¹⁰ finds support in the testimony of four non-party doctor witnesses, as well as in the testimony of several doctors named as defendants. Dr. Wiley F. Barker, a practicing surgeon and a full professor of surgery at U.C.L.A. Medical School, testified: The development of a mass lesion (i.e., the polyp) was indicative of the possible development of cancer. This possibility made an operation mandatory, since in his opinion the whole colon was diseased calling for its total excision. He also testified that no medication would provide protection against such a mass in the colon. Dr. Morton Grossman, who also taught in the field of gastroenterology at U.C.L.A., testified that in instances such as that manifested by plaintiff, he would recommend surgery because of the increasing danger of the disease to the patient's life and health. The possibility of cancer, he also pointed out, is very greatly increased in persons with ulcerative colitis; and if cancer does develop, it is usually fatal. Drs. Leo J. Tauber and George E. Scott, internal medicine specialists from the Santa Barbara-Ventura area, also testified that in their opinion surgery was the proper procedure given the symptoms exhibited by plaintiff.

In the hospital report, Dr. E. F. Ducey, the hospital's pathologist noted that the 'inflammatory process ends rather abruptly at the edge of the inner muscle layer.' He further reported that 'three small polyps noted grossly do not represent true neoplasm (new tissue), but simple redundant folds of mucosa and submucosa * * *.' Dr. Ducey concluded: 'The picture is that of subacute and chronic colitis of idiopathic nature, without any ulceration at the present time; the extreme degree of edema and eosinophilia (rose colored stain) suggest an allergic response.' Diagnosis: 'Colitis, chronic, idiopathic, active, with pseudo-polyp formation. Mesocolic lymph adenitis, ¹¹ secondary to above. Fecal stasis in appendix.' Dr. D. Gordon Johnston, a pathologist called as a defense witness, testified that he had made an examination of the preserved specimen and disagreed with Dr. Ducey's conclusions. He was of the opinion that the colon was ulcerated. Dr. Ducey was no longer in the Ventura area at time of trial.

On February 28, 1962, after plaintiff had sufficiently recovered from the June 20, 1960, operation, her ileum was reconnected to the rectal stump. Plaintiff did not allege any negligence with repect to this operation.

A short time later, on March 14, 1962, a loop or venting ileostomy was performed to divert the fecal matter from the rectum because it was being driven into the vagina from the rectum through a rectovaginal fistula ¹² (the suture line) which needed time to heal. Plaintiff charged that this operation was negligently performed by defendant hospital, Dr. Moore, and Dr. Gstettenbauer. However, the jury's finding of non-negligence is supported by the evidence. Dr. Barker testified that the operation was appropriate and...