Seneris v. Haas

• Decision Date: 23 December 1955
• Citation: 291 P.2d 915,53 A.L.R.2d 124,45 Cal.2d 811
• Parties: , 53 A.L.R.2d 124 Jessie SENERIS and Jesus Seneris, husband and wife, Plaintiffs and Appellants, v. Dr. George S. HAAS, Dr. James S. West, and Methodist Hospital of Southern California, a corporation, Defendants and Respondents. L. A. 23750
• Court: California Supreme Court

Page 915

291 P.2d 915

45 Cal.2d 811, 53 A.L.R.2d 124

Jessie SENERIS and Jesus Seneris, husband and wife, Plaintiffs and Appellants, v. Dr. George S. HAAS, Dr. James S. West, and Methodist Hospital of Southern California, a corporation, Defendants and Respondents.

L. A. 23750.

Supreme Court of California

Dec. 23, 1955.

Rehearing Denied Jan. 18, 1956.

Pollock & Pollock, Edward I. Pollock, David Pollock and William Jerome Pollack, Los Angeles, for appellants.

Hibson & Horn, Theodore A. Horn, Edward M. Raskin, Samuel A. Rosenthal, Leonard G. Ratner, Los Angeles, Boccardo, Blum & Lull, San Jose, Ashe & Pinney, San Francisco, Richard L. Oliver, Ben C. Cohen, Lionel Campbell, Rose, Klien & Marias, Los Angeles, Elmer Low, Pasadena, Marion P. Betty, Eugene E. Sax and Myron L. Garon, Los Angeles, as amici curiae on behalf of appellants.

Hunter & Liljestrom, Harold J. Hunter, De Forrest Home, Reed & Kirtland and Henry E. Kappler, Los Angeles, for respondents.

CARTER, Justice.

Plaintiffs, Jessie and Jesus Seneris, husband and wife, appeal from judgments of nonsuit entered in favor of all three defendants, Dr. George S. Haas, Dr. James S. West, and Methodist Hospital of Southern California, in an action for damages for malpractice.

On March 22, 1951, plaintiff Jessie Seneris, 37 years of age, and the mother of four children, was admitted to defendant Methodist Hospital as a routine obstetrical case. Some nineteen hours after her admission, plaintiff was administered ether and other drugs which rendered her unconscious (618, 619, Pl.Ex. 1). The record shows that defendant hospital, through one of its nurses, selected defendant Dr. West, one of a panel of six anesthesiologists, to administer a spinal anesthetic to Mrs. Seneris. Within approximately twelve minutes after the anesthetic was administered (Pl.Ex. 1), plaintiff gave birth to a daughter. The delivery was spontaneous and uncomplicated. Plaintiff awakened the following morning and complained that 'she couldn't move her legs; that she had pain in her back, neck, head, arms and wrist.' Plaintiff left the hospital five days after the birth of the baby, but returned for examination and X-rays. She was then given a back brace and crutches and later a leg brace. Within two or three months she regained the use of her right leg but at the time of the trial was still suffering pain in her left hip and had limited use only of her left leg.

Plaintiffs brought this action on the theory that Dr. West was negligent in administering the spinal anesthetic; that Dr. Haas, the obstetrician, was liable in that he knowingly permitted Dr. West to administer the spinal anesthetic; and against the hospital on the theory that it was liable under the doctrine of respondent superior. Plaintiffs contend that all three defendants are liable under the doctrine of res ipsa loquitur; as joint venturers; and because they failed to call in a neurosurgeon and arrange for a laminectomy after discovering the paralysis.

Plaintiffs contend that the trial court committed error in granting nonsuits in favor of all three defendants in view of the evidence adduced; that error was committed in excluding the expert testimony of Dr. Webb, now deceased, offered by them in the field of anatomy, biology, pathology, histology and causation. (Dr Webb's testimony was rejected on the ground that he did not qualify as an expert on the standard of care.) It is also contended that the doctrine of res ipsa loquitur is applicable under the facts here present. We are compelled to agree with these contentions.

Evidence:

The following sketch is taken from Plaintiffs' Exhibit 5 and is set forth to illustrate the testimony of defendant doctors on which plaintiffs rely to show that the motions for nonsuit were improperly granted.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In contending that the spinal cord was injured, plaintiffs rely on a hospital record (Pl.Ex. 2) which contained the following written report made by Dr. Nathan E. Carl, defendant hospital's staff neurologist: 'The patient's (Mrs. Seneris) subjective complaints are seemingly warranted on the basis of the positive neurological findings. There is sensory loss, motor weakness and reflex change in the left leg, indicating cord damage on the left in the lumbar region. Patient's responses are constant and are not indicative of functional disorder.' (Emphasis added.) Plaintiffs argue that had the spinal anesthetic been administered in the position contended for by defendant West, no damage to the cord (as distinguished from the nerves) could have resulted since the cord is not present in that position.

Dr. Haas Testified as Follows:

'Q. By Mr. Pollack (plaintiffs' counsel): What is the next important thing to watch out for in the administration of a spinal anesthetic? A. The place or location of the administration.

'Q. Now, you are speaking of the various intervertebral interspaces that there are in the spine; is that correct? A. That is correct.

'Q. In connection with that, what is it that you have to watch out for with respect to where you insert the needle? A. In giving a spinal anesthetic, it is of utmost importance that you work in a region below the spinal cord itself. In administering a spinal anesthetic, a landmark on the posterior of the patient's body is determined by drawing an imaginary line between the crest of the ilium of the patient that is to receive the spinal anesthetic. Below this line it is perfectly safe to work.

'Q. And the reason for that, Doctor, is that the cord ends at the lower border of the first lumber vertebra, usually? A. That is correct.

'Q. So, in inserting a needle into the spinal canal, the important thing to do is to make sure that you are below the end of the cord; is that right? A. That's right.

'Q. Why is it that you want to avoid the cord? A. The cord is a very delicate mechanism of the human body. It is an organ that we do not like to tamper with, one that is very, very sensitive. For that reason, it is naturally understandable that you would never work in that region where there is any possibility of working elsewhere.

'Q. So, if a needle, a spinal anesthetic needle, was being inserted into the spinal canal of a woman who was about to deliver a child, it would be bad practice, would it not, to go into a vertebral space above the first lumbar vertebra; is that correct? A. That is correct.

'Q. Now, next to (and above) the first lumbar vertebra, you have the 12th thoracic vertebra; is that correct? A. That's right.

'Q. Actually, in general practice, you never go in above the second lumbar vertebra; is that correct? A. Yes.'

Dr. Haas also testified that when due care and proper practice was followed permanent paralysis did not follow. (100.) Dr. Haas' testimony also showed that Mrs. Seneris, having had one successful spinal anesthetic, was medically presumed to be non-allergic to such anesthesia. (101.)

Dr. West Testified as Follows:

'However, if we put in a solution which is heavier than the relative weight of the spinal fluid solution, the spinal fluid, if is heavier than that, it will tend, by gravity alone, to go downward.

'Now, in this technique, one of the three items which is used is a solution of 10 per cent glucose, which increases the relative weight of the injected solution in relation to the spinal fluid, so that we are taking advantage of what we know to cause this solution to go down.

'Now, in addition to that, the table upon which the patient is located is placed in a slightly titled position so that we take advantage not only of the fact that the solution is heavier than the spinal fluid into which it is placed, but we also by the position of the table take advantage of this heavier solution, so that, once the solution is put into the subarachnoid space, it goes down.'

'Q. * * * Now, Doctor, ordinarily, when you are doing a spinal anesthetic, you like to insert the needle below this point here (indicating on Pl.Ex. 5) and I am pointing to the very tip of the conus medullaris; is that correct? A. Ordinarily, yes.

'Q. And the reason for that is that you want to run no risk of running into the cord proper; isn't that correct? A. It is a matter of some safety, yes. * * *

'Q. If you enter opposite L-2, for example, you are below the cord? A. Yes.

'Q. If you enter opposite L-1, the cord is there? A. The cord is still present, yes. * * *

'Q. All right. Let's go to, say, T-12. What do you say about if you enter the spinal canal in the interspace between L-1 and T-12. Would you point that out on the map (Pl.Ex. 5), the interspace between lumbar one and thoracic 12? * * * A. Into this space (indicating).

'Q. Now, is there any danger there of coming in contact with the spinal cord? A. Yes.

'Q. Isn't it for that reason that whenever you insert a needle in the spinal canal you try to stay below L-1? A. Yes.

'Q. Why is it that you do not want to strike the cord with your needle? A. Well, for the same reason that I have no desire to strike any nerve with a needle, specifically.

'Q. What is that reason? A. It may damage the nerve.'

In answer to the question: 'Would trauma to the cord cause paralysis?' Dr. West answered 'Yes.' In answer to the question: 'Trauma to the cord or to the nerve roots below the conus medullaris would cause paralysis, would it not?' Dr. West answered: 'It is impossible to cause trauma to the cord below the conus medullaris.' Dr. West testified as follows concerning his customary procedure in giving a spinal anesthetic: That when he first went in to the delivery room, he told the nurse to turn the patient over on her right side; that he then opened his anesthetic tray; that he then put on sterile gloves; that there were four ampules of drugs on his tray one of procaine, one of pontocaine solution, one of glucose solution, and one of ephedrine solution; that he opened three of the ampules with a file across the narrow neck of each; that he then drew a...