Salgo v. Leland Stanford Jr. University Bd. of Trustees

• Decision Date: 22 October 1957
• Docket Number: No. 17045,17045
• Citation: 154 Cal.App.2d 560,317 P.2d 170
• Court: California Court of Appeals Court of Appeals
• Parties: Olga SALGO, Administratrix of the estate of Martin Salgo, deceased, substituted in the place and stead of Martin Salgo, Plaintiff and Respondent, v. LELAND STANFORD JR. UNIVERSITY BOARD OF TRUSTEES, Stanford University Hospitals, Frank Gerbode, et al., Defendants and Appellants.

Page 170

317 P.2d 170

154 Cal.App.2d 560

Olga SALGO, Administratrix of the estate of Martin Salgo, deceased, substituted in the place and stead of Martin Salgo, Plaintiff and Respondent, v. LELAND STANFORD JR. UNIVERSITY BOARD OF TRUSTEES, Stanford University Hospitals, Frank Gerbode, et al., Defendants and Appellants.

No. 17045.

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

Oct. 22, 1957.

Rehearing Denied Nov. 21, 1957.

Hearing Denied Dec. 18, 1957.

Joseph Rankin, Oakland, for appellants Board of Trustees of Stanford.

Peart, Baraty & Hassard, George A. Smith, San Francisco, Richard G. Logan, Oakland, of counsel, for appellant Gerbode.

Thomas J. Cunningham, Mark Owens, Jr., Berkeley, for Regents of University of California as amicus curiae on behalf of appellants.

Lawrence Howe, Jr., Paul G. Gebhard, Chicago, Ill., Vedder, Price & Kaufman, Chicago, Ill., of counsel, for American College of Surgeons as amicus curiae on behalf of appellant Gerbode.

Fitz Gerald Ames, Sr., George Olshausen, San Francisco, for respondents.

BRAY, Justice.

In a malpractice action the jury awarded Martin Salgo ¹ the sum of $250,000 against defendants Leland Stanford Jr. University Board of Trustees, Stanford University Hospitals, ² and Dr. Frank Gerbode. The trial court reduced the award to $213,355. All defendants appeal from the judgment entered thereon. ³

Questions Presented.

1. Was res ipsa loquitur applicable, and if so, were the instructions thereon proper? ⁴

2. Liability of Dr. Gerbode for negligence of hospital team.

3. Instructions on alleged other negligence of defendant Gerbode.

4. Experimentation and the manufacturer's brochure.

5. Instructions on (a) duty to call specialist; (b) physician's duty to disclose; (c) failure to produce evidence.

6. Medical texts as evidence.

7. Reference to malpractice judgments.

Evidence.

Dr. Gerbode has been licensed to practice medicine in California since 1937. He specializes in surgery, surgery of the heart, major vessels, and in thoracic surgery, with a special interest in cardiovascular surgery. He is recognized as an outstanding authority and is a professor of surgery at Stanford Medical School. Plaintiff was 55 years of age, with a history of eye condition indicating premature aging. About two or three years prior to the occasion upon which this suit is based, he had developed cramping in his legs upon walking and for approximately a year had been treated with drugs by a physician. This doctor referred him to Dr. Gerbode as a specialist in the surgical treatment of arterial diseases. December 31, 1953, at Stanford Hospitals, Dr. Gerbode examined plaintiff. His chief complaint was cramping pains in his legs, mostly in the calves, causing intermittent limping. This condition had started gradually, becoming increasingly more severe. He complained of pain in his hips and lower back on exercise. He also had right side abdominal pain. Dr. Gerbode's examination found a man who looked much older than his stated age. Both legs were atrophic in the thighs and calves. The right leg was blue. No pulses below the femoral pulse on each side were palpable. There was a weak femoral pulse on the left and none on the right. Upon raising the legs they blanched. This is a characteristic of advanced arterio insufficiency. Dr. Gerbode then diagnosed a probable occlusion of the abdominal aorta which had impaired the blood supply to the legs and other areas and an advanced arteriosclerosis. Dr. Gerbode was uncertain whether the decreased circulation was limited to the legs alone, or to something blocking the blood higher up. Plaintiff's blood pressure was 180/90, which Dr. Gerbode felt was due to the generalized arteriosclerosis. The latter is a serious disease and one which might cause a stroke in the brain or a coronary occlusion to the vessels of the heart.

Dr. Gerbode advised plaintiff that he had evidence of serious circulatory disturbance, that the examination indicated that plaintiff might have a block in his abdominal aorta, and that there was something else wrong as shown by the pain in his right side and back. Dr. Gerbode told plaintiff of the seriousness of his condition and that plaintiff should enter the hospital for a thorough evaluation of his condition; that one of the things the doctor wished to have done was a study of plaintiff's aorta, which would entail an anesthetic and an injection of some material in the aorta to localize the block; also x-rays of his gastro-intestinal tract would be taken. Dr. Gerbode stated that if his clinical findings were borne out by the further examination contemplated his condition would be helped by an operation removing and replacing a segment of the aorta. Such an operation would improve the circulation to the legs and back and prolong his life. Dr. Gerbode did not explain all of the various possibilities to plaintiff of the proposed procedures but did say that his circulatory situation was quite serious. Dr. Gerbode reported to the referring physician and recommended the performance of an aortography in order to locate the block and its extent so that proper surgery could be done. A study of the gastro-intestinal tract was also necessary. An aortography consists of injecting in the aorta an x-ray contrast medium and then taking x-ray pictures of the abdominal aorta and its branches to discover the block, if any.

At Dr. Gerbode's suggestion plaintiff entered the hospital on January 6, 1954. That afternoon Dr. Gerbode ordered, among other things, x-rays of the chest and abdomen after a barium swallow. The x-rays were taken and showed marked calcification in the abdominal aorta, iliac and femoral vessels. This presence of calcium indicated that the illness was of long duration. Dr. Gerbode requested in writing that the aortography be performed by the hospital's x-ray department.

The normal procedure is for the attending surgeon to tell members of the house staff team who are to perform the procedure basically what the problem is. Dr. Gerbode did this with Dr. Ellis and Dr. Andrews of the staff. Dr. Ellis was to perform the aortography. Dr. Ellis had five years practice in surgery and was in charge of all special diagnostic procedures at the hospital, such as aortographies, that had to do with the injection of radio-opaque or contrast material in various arteries and blood vessels of the body.

On January 7th Dr. Ellis called on plaintiff in his hospital room and informed him that he was to do the aortography and would do it the next afternoon. He explained that he would inject some material into the aorta and take films at that time to see if they could ascertain the precise condition of plaintiff's circulatory system. The next afternoon Dr. Ellis saw plaintiff and informed him that the procedure had been postponed until the following day because plaintiff still had some barium in his intestines from the first x-ray study.

On January 6th Dr. Howard, an anesthetist, saw plaintiff and examined him to determine if he was fit to receive the anesthetic. When the procedure was postponed, Dr. Clark saw the patient on January 7th and informed him the procedure would take place on the next day.

On the afternoon of January 8th Dr. Ellis went to the x-ray room where plaintiff was lying on a table. Present were the anesthesiologist, Dr. Bengle, Dr. Andrews, a radiologist, and several technicians. Dr. Gerbode was there at the beginning of the procedure but gave no instructions and did not participate in the procedure. Plaintiff was already anesthetized and asleep. Dr. Ellis was inserting the needle in plaintiff's aorta when Dr. Gerbode came in the room. As the patient was apparently in good condition Dr. Gerbode left and did not see the patient again until the next morning.

An aortography is a procedure requiring an anesthesiologist, a radiologist and a surgeon. The function of the surgeon (Dr. Ellis) is to insert the needle necessary for the injection of material into the aorta and to discuss with the radiology department the materials used and the timing. A hollow No. 16 or No. 18 needle is used. The hollow is closed with a metal rod or stylette. It is approximately 1/32nd inch in diameter and 6 inches long. The patient is placed on his abdomen, face down on the table, and given a general anesthetic. A sensitivity test is then done to determine if the patient is sensitive to the radio-opaque material to be used. The needle is inserted to the left of the spinal column approximately 3 to 4 inches to the left of the midline of the back underneath the 12th rib. The needle is inserted in an upward direction toward the front of the body so as to enter the aorta which lies in front of the spinal column. The material used here was 70 per cent sodium urokon. This under an x-ray will appear in contrast to the body tissues. One c.c. of it was injected into a vein in plaintiff's arm. He appeared not to be sensitive to it. After the surgeon feels the needle penetrate the wall of the aorta a metal rod is removed from the needle and blood flows from the aorta through the hollow needle. A syringe is then attached to the needle. In this case 30 c.c.'s of sodium urokon were then injected at a fairly rapid rate. Defendants' witnesses testified that there was no difficulty in inserting the needle on the first attempt and that it was only inserted once. (Plaintiff contends otherwise, as will hereafter appear.) The injection took only a few seconds and then a series of x-rays were immediately taken by a machine already in position. While the films were still wet Dr. Ellis and the radiologist, Dr. Stone, examined them. They showed that the descending aorta in the abdomen just below the vessels leading to the kidneys was blocked. In a consultation between Drs. Ellis, Stone and Andrews (another radiologist) it was deemed desirable to take additional x-rays in order to determine the extent or length of the block. During this time plaintiff...