Sanchez v. Rodriguez

• Decision Date: 20 April 1964
• Citation: 38 Cal.Rptr. 110,226 Cal.App.2d 439
• Parties: Maria SANCHEZ, Plaintiff and Appellant, v. Raimundo RODRIGUEZ, Defendant and Respondent. Civ. 20911.
• Court: California Court of Appeals Court of Appeals

Page 110

38 Cal.Rptr. 110

226 Cal.App.2d 439

Maria SANCHEZ, Plaintiff and Appellant, v. Raimundo RODRIGUEZ, Defendant and Respondent.

Civ. 20911.

District Court of Appeal, First District, Division 2, California.

April 20, 1964.

As Amended on Denial of Rehearing May 20, 1964.

Elmer P. Delany, Hugh B. Miller, San Francisco, for appellant.

Peart, Baraty & Hassard, Robert D. Huber, San Francisco, for respondent.

TAYLOR, Justice.

This is an action to recover damages for injuries to the plaintiff's left arm sustained as the result of alleged malpractice and negligence in the performance of certain emergency procedures to save her life after she suffered a vascular collapse following abdominal surgery. The plaintiff settled with the defendant, Mt. Zion Hospital, and the only issue on this appeal is whether the court properly granted a nonsuit at the trial of the remaining defendant, Dr. R. Rodriguez.

A nonsuit may be granted only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn therefrom, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. A legitimate inference must be founded on a fact legally proved (Code Civ.Proc. § 1960). In this light, we examine the evidence in this case (Kopfinger v. Grand Central Public Market, 60 A.C. 895, 896, 37 Cal.Rptr. 65, 387 P.2d 529).

In 1956, appellant, Maria Sanchez, was 32 years old and had several operations durign the preceding year, including an appendectomy, tubal ligation, cholecystectomy and hemorrhoidectomy, all performed by other doctors. As she was still suffering from severe abdominal pain and nausea, she was admitted to Mt. Zion Hospital in November for observation and tests under the care of Dr. Rodriguez, a surgeon. The tests confirmed his preliminary diagnosis of pancreatitis due to biliary tract disease resulting in a partial intestinal obstruction.

On December 7, appellant was readmitted to Mt. Zion Hospital for a laparotomy, an abdominal operation to explore and correct her condition. Respondent Rodriguez, assisted by two staff doctors, Dr. Shapiro and Dr. Spiro, and the anesthesiologist, Dr. Krutchkoff, performed the operation on December 10. Before the operation, appellant was in good condition and had a blood pressure of 90-100/60, normal for a woman of her age and size. During the operation, she received a blood transfusion of 500 cc's in her left arm to replace the normal amount of blood lost. The operation lasted from 12:30 p. m. to 4:45 p. m. The anesthesiologist's records show that at the conclusion of surgery, appellant's condition was satisfactory, with a blood pressure of 90/60. Respondent left the hospital after placing appellant in the care of the anesthesiologist in the recovery room.

The nurse's notes show that at the time appellant was removed to the recovery room at 4:45 p. m., ¹ appellant's blood pressure was down to 60/?. At 4:46 p. m., on the orders of Dr. Krutchkoff, appellant intravenously received caffeine and desoxyn, and 'shock blocks,' or elevation of her feet. All of these measures were designed to raise blood pressure. At 4:48 p. m., appellant was conscious and talking; her blood pressure was 80/70. At 4:55 p. m., her blood pressure dropped to 60/?, and at 5:00 p. m., she was given 500 cc's of whole blood under pressure. At 5:15 p. m., 2 cc's of the drug 'Levophed' were administered by Dr. Krutchkoff and other staff doctors who ordered another 4 cc's at 5:50 p. m. 'Levophed,' the trade name for norepanefrin, a substance chemically similar to the secretions of the adrenal glands, is an exceedingly potent drug used for major shock. The drug functions by radically constricting the arteries and veins and may produce undesirable side effects. Necrosis (death of tissue) in the immediate vicinity is a well recognized complication of the use of the drug. The drug and other substances were administered intravenously through appellant's right arm.

As appellant's blood pressure and pulse continued to recede, the hospital got in touch with Dr. Rodriguez at his office around 6:00 p. m. He arrived at the hospital at 6:20 p. m. Appellant's condition continued to decline. At 6:35 p. m., she was given the Last Sacraments with members of her family present. At 7:30 p. m., appellant had no blood pressure or pulse. Dr. Rodriguez, in an attempt to save her life, did an arterial cut-down on her left wrist while fluids and other substances were intravenously fed through the right arm. After applying an antiseptic solution to the wrist, Dr. Rodriguez performed the cut-down with a special kit provided by the hospital to introduce blood directly into the wrist artery to increase the pumping of the heart. The procedure involves various risks including gangrene and the loss of the hand because of the necessary binding or ligation of the arteries and because the blood supply to the extremity is temporarily cut off. A special hollow needle is used, then closed with a stylet and left in the artery, with a corner of the wound open, pending further developments.

Immediately after the cut-down, appellant's condition improved. By midnight, she was out of danger. The evening of December 10 and again the next day, she complained of pain at the cut-down site. Dr. Rodriguez assumed that the pain was caused by the cut-down and the presence of the needle which, pursuant to the usual procedures, had been left in the artery and so informed appellant. As appellant continually complained of pain in the left wrist in the area of the cut-down, she was given pain killers. Antibiotics were administered on December 11 and again on December 12, after the removal of the needle. The wound was dressed. Appellant first noted After appellant's return home, the arm was very painful and appeared leathery and black in color and began draining. Respondent Rodriguez treated the arm at his office. Appellant also saw several other doctors and on February 7, 1957, was admitted to the French Hospital under the care of respondent. At respondent's request, Doctors Levin and Feinstein examined appellant to determine the appropriate course of treatment. After appellant had been at the French Hospital for about 11 days and before respondent had been able to complete the surgery and other contemplated treatment, appellant left the hospital without his knowledge and permission. She was taken home by her husband and subsequently seen by several other doctors.

discoloration of her left arm on the 13th and early in the morning asked a staff doctor to look at it. On the 14th, Dr. Rodriguez noted the discoloration and that evening prescribed drugs and heat treatments to the cut-down site, which were continued until her discharge. By December 16, appellant's arm had improved and appeared well healted on December 21, the day before her discharge.

On February 22, appellant saw Dr. Erskine who first treated her at the Stanford Hospital from February 27 to March 2. By March 29, the wound was completely healed but her finger sensations and movements were restricted. Dr. Erskine stated that it was difficult to determine the cause of this neurological defect. For a period of time, there was evidence that the nerve was recovering. Then appellant fell on the stairs at her home, grabbing the banister rail rather forcefully. After the banister incident, Dr. Erskine concluded that the recovery of the nerve had apparently been arrested.

On July 12, appellant was readmitted to the Stanford Hospital under the care of Dr. Erskine who performed exploratory surgery to ascertain the nature of the nerve difficulty. He exposed the median nerve, found it to be completely normal, and not damaged in the cut-down or buried in scar tissue. The cut-down site was 1/2 to 2 inch from the nerve. Dr. Erskine, however, noted that appellant was suffering from a clinical condition called 'transverse carpal syndrome,' i. e., a tightening of the ligament across the wrist which impairs the functioning of the nerve. He split the ligament and thereafter the wound healed and appellant recovered almost full use and sensation of her hand and fingers. Appellant was discharged from the hospital on July 15 and saw Dr. Erskine only once more, on July 24. In 1958, appellant was admitted to the San Francisco Hospital for slashing her wrists with a razor in order to 'cut out the pain.'

RES IPSA LOQUITUR

We first consider whether this is a proper case to invoke the doctrine of res ipsa loquitur. The negligence of a physician or surgeon will not be assumed but must be affirmatively proved by the plaintiff unless the doctrine is applicable (Stephenson v. Kaiser Foundation Hospitals, 203 Cal.App.2d 631, 21 Cal.Rptr. 646). Res ipsa loquitur creates an inference of negligence '* * * where the occurrence of the injury, 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.' (Davis v. Memorial Hospital, 58 Cal.2d 815, 817, 26 Cal.Rptr. 633, 634, 376 P.2d 561, 562). This inference will, of course, actually support a judgment against the doctor unless he is able to disprove the charge of negligence.

Appell...