Rimmele v. Northridge Hosp. Foundation

• Decision Date: 17 March 1975
• Citation: 46 Cal.App.3d 123,120 Cal.Rptr. 39
• Parties: Minoko RIMMELE, Plaintiff and Appellant, v. NORTHRIDGE HOSPITAL FOUNDATION, a nonprofit, charitable California Corporation, erroneously sued and served herein as Northridge Hospital Foundation, a California Corporation, et al., Defendants and Respondents. Civ. 44111.
• Court: California Court of Appeals

Page 39

120 Cal.Rptr. 39

46 Cal.App.3d 123

Minoko RIMMELE, Plaintiff and Appellant, v. NORTHRIDGE HOSPITAL FOUNDATION, a nonprofit, charitable California Corporation, erroneously sued and served herein as Northridge Hospital Foundation, a California Corporation, et al., Defendants and Respondents.

Civ. 44111.

Court of Appeal, Second District, Division 1, California.

March 17, 1975.

[46 Cal.App.3d 125] Milan Moacanin, Hollywood, for plaintiff and appellant.

[46 Cal.App.3d 126] Early, Maslach, Boyd & Leavey and Harry Boyd, Los Angeles, for defendant and respondent Northridge Hospital Foundation.

Dale D. Billips and Howard E. Hirsch, Hollywood, for defendants and respondents Sheldon Schein, M.D. and Paul M. Greenberg, M.D.

Shield & Smith and Richard B. Castle, Los Angeles, for defendant and respondent Herbert J. King.

THOMPSON, Associate Justice.

In this appeal from a judgment for defendants in a medical malpractice action, appellant contends: (1) the trial court erroneously directed a verdict in favor of defendants Greenberg and King; (2) the court improperly instructed the jury on the doctrine of res ipsa loquitur as applicable to defendant Northridge Hospital Foundation; and (3) the court improperly limited the effect of an answer to interrogatories filed by Northridge. We conclude that the trial court prejudicially erred in instructing on the applicability of conditional res ipsa loquitur to the case at bench and accordingly reverse the judgment as to Northridge Hospital. We affirm the judgment in favor of Greenberg and King.

On August 24, 1969, appellant was admitted to Northridge Hospital for delivery of her second child. She was under the care of Doctors Schein and Greenberg. Dr. Greenberg administered a saddle block anesthetic which proved ineffective. Herbert J. King, a registered nurse anesthetist, administered a general anesthetic. Appellant was delivered of a healthy baby girl by Dr. Greenberg without apparent complications. In the course of her confinement and after delivery, appellant was administered several injections in her right buttock by nurses, agents of Northridge Hospital and solely under its control. Appellant was discharged from the hospital on August 27.

On August 30, appellant experienced severe pain in her right hip which prevented her from walking. The pain became worse and appellant developed chills and fever. Dr. Greenberg readmitted her to Northridge Hospital that day. Appellant's temperature was 101 degrees. She had objective evidence of induration and marked tenderness in the right buttock and a slight 'shift of blood count to the left.' A tentative diagnosis of postpartum pyelonephritis was dispelled by testing, and Dr. Greenberg requested consultation of an orthopedist. His tentative diagnosis was that appellant had developed 'a small deepseated abscess in the region of the previous injections into the right buttock.' Treatment with antibiotics reduced the fever, and appellant was again discharged from the hospital. Dr. Greenberg's diagnosis upon appellant's discharge was 'acute peripheral neuritis, probably secondary to injections that she received in the right buttocks (sic) during labor and postpartum.'

Treatment of appellant continued after her discharge from Northridge Hospital. Dr. Greenberg and a treating radiologist, orthopedist, and neurosurgeon agreed that appellant suffered from spinal osteomyelitis (degeneration of the bone) and probable involvement of the sciatic nerve due to an infection originating in the tissue of the right buttock and spreading to the bone. All agreed also that the probable cause of the infection lay in the injections administered to appellant while she was in the hospital.

Appellant filed a complaint in malpractice commencing the case at bench. She named as defendants Northridge Hospital, Drs. Schein and Greenberg, and Mr. King. Her evidence at trial consisted of testimony of the various treating physicians in the tenor of the facts recited above. She also produced competent testimony that an injection given in the right buttock would not, without negligence, result in the condition from which appellant suffered. The trial court limited the admissibility of an answer to interrogatories filed by Northridge Hospital to the effect that Dr. Greenberg had supervised and controlled the conduct of the nurses in administering the injection. It ruled that the answer was admissible against the hospital but not against Dr. Greenberg. The trial court granted a nonsuit as to Dr. Schein which is not questioned on this appeal. It heard evidence presented by Northridge Hospital in the form of expert opinion of an internist who had not examined appellant that appellant did not acquire the infection as a result of an injection. The expert opinion was based upon the assumption that an injection would not be given by a competent nurse in an area of the buttock in which the infection occurred. The expert called by Northridge Hospital presented the thesis that the injury to appellant was probably caused by an infection of the uterus incident to childbirth.

The trial court granted a directed verdict as to Dr. Greenberg and Mr. King. Over appellant's assertion that she was entitled to an unconditional res ipsa loquitur instruction or, alternatively, that if a conditional instruction were given the only condition to the application of the doctrine not established as a matter of law was whether the injury is of a kind which ordinarily does not occur in the absence of negligence, the trial court instructed the jury in terms of BAJI Nos. 6.35 and 4.02 (1970 Revision). ¹ Those instructions permitted the jury to infer negligent conduct on the part of Northridge Hospital from the injury to appellant only if the jury first found that the injury was of a kind that ordinarily does not occur in the absence of negligence, the injury was caused while appellant was under the exclusive care or control of the hospital, and the injury was not due to any voluntary action or contribution on her part.

After it had retired to deliberate, the jury asked that it be read the answer of Northridge Hospital to interrogatories propounded to it by appellant. One of those answers claimed that the nurses were 'under the direction or supervision' of Dr. Greenberg in administering the injections. The answer was read to the jury in response to its request and over appellant's objection. The jury returned a verdict for Northridge Hospital and against appellant. This appeal from the judgment entered on that verdict and the directed verdicts in favor of Dr. Greenberg and Mr. King followed.

No error is present in the judgments for Dr. Greenberg and Mr. King. Appellant's sole theory of recovery is that her injury resulted from the negligent administration of injections to her right buttock. Neither Dr. Greenberg nor Mr. King administered any injection there and there is no evidence that either was the principal of any nurse who administered that treatment.

Nor did the trial court err in excluding as evidence against Dr. Greenberg the interrogatory answer of Northridge Hospital which, if admissible against him, would have cured the fatal deficiency. 'The answers of one party . . . elicited in response to interrogatories . . . cannot be used as evidence against (another) party . . ..' (Petersen v. City of Vallejo, 259 Cal.App.2d 757, 776, 66 Cal.Rptr. 776, 787; Code Civ.Proc., §§ 2030, subd. (b), 2016 subd. (d).) ²

The court, however, erred in instructing the jury on the application of the doctrine of res ipsa loquitur.

The doctrine transfers to the defendant the burden of producing evidence negating negligence or proximate cause, and permits an inference of negligence and proximate cause even in the situation where the defendant carries his burden. (Evid.Code, § 646.) In California, the doctrine is applicable where: (1) the injury is of a kind which ordinarily does not occur in the absence of negligence; (2) the injury is caused by an instrumentality within the exclusive control of the defendant or group of defendants; and (3) the injury was not due to any voluntary action or contribution by the plaintiff. (Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258.) Stated less mechanically, a plaintiff suing in a personal injury action is entitled to the benefit of res ipsa loquitur when: 'the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.' (Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446, 247 P.2d 344, 349; see also Bardessono v. Michels, 3 Cal.3d 780, 788, fn. 5, 91 Cal.Rptr. 760, 478 P.2d 480.)

'Where the facts giving rise to the doctrine (of res ipsa loquitur) are established as a matter of law but the defendant has introduced evidence sufficient to sustain a finding either of his due care or of a cause for the accident other than his negligence, the presumptive effect of the doctrine vanishes. Except in those rare cases where the inference is dispelled as a matter of law, the court may instruct the jury that it may infer from the established facts that negligence on the part of the defendant was a proximate cause of the accident. . . . ( ) . . . The defendant may introduce evidence that both attacks the basic facts that underlie the doctrine of res ipsa loquitur and tends to show that the accident was not caused by his failure to exercise due care. Because of the evidence contesting the presumed conclusion of negligence, the presumption vanishes, and the greatest effect the doctrine can have in the case is to support an inference that the accident resulted from the defendant's negligence. ( ) In this situation, the court should instruct the jury that, if it finds that the basic facts have been established by a preponderance of the evidence, then it may infer from those facts that the accident was...