Siverson v. Weber

• Decision Date: 01 December 1961
• Citation: 17 Cal.Rptr. 435
• Court: California Court of Appeals Court of Appeals
• Parties: Lillian E. SIVERSON, Plaintiff and Appellant, v. Charles E. WEBER and Richard A. Jones et al., Defendants and Respondents. Civ. 6708.

Page 435

17 Cal.Rptr. 435

Lillian E. SIVERSON, Plaintiff and Appellant, v. Charles E. WEBER and Richard A. Jones et al., Defendants and Respondents.

Civ. 6708.

District Court of Appeal, Fourth District, California.

Dec. 1, 1961.

Rehearing Denied Dec. 21, 1961.

Hearing Granted Jan. 24, 1962.

Opinion vacated 22 Cal.Rptr. 337, 372 P.2d 97.

Pollock & Pollock and Edward I. Pollock, Los Angeles, for appellant.

McInnis, Focht & Fitzerald and John W. McInnis, San Diego, for respondents.

GRIFFIN, Presiding Justice.

Plaintiff-appellant brought this action against defendants-respondents Charles E. Weber, Richard A. Jones and Gorodn C. Langsdorf, medical doctors, and Scripps Memorial Hospital, a corporation, for alleged malpractice and negligence in the performance of a physterectomy operation upon plaintiff. All defendants except Dr. Weber and Dr. Jones were dismissed from the action. A jury verdict for Dr. Weber and a judgment of nonsuit and dismissal as to Dr. Jones resulted. Plaintiff appealed from both judgments.

Plaintiff's sole contentions are: (1) that there was specific evidence of negligence on the part of Dr. Jones; (2) that the doctrine of res ipsa loquitur was applicable to both Dr. Jones and Dr. Weber; and (3) that the court erred in refusing to give requested instructions to the jury on said doctrine.

Plaintiff was a registered nurse and worked at Scripps Memorial Hospital. In October 1957, she went to Dr. Jones, who examined her and referred her to Dr. Weber. Previously, in 1956, plaintiff had been attended professionally by Dr. Jones for a malignancy in her breast. At that time, Dr. Jones performed a radical mastectomy (removal of the breast and axillary lymph nodes). Plaintiff then understood that she had a malignancy and that was the reason for that operation. Following this surgery, she had a full course (18 treatments) of deep X-ray. Subsequently, she saw Dr. Taylor regarding a skin irritation caused by the X-ray in the area of her chest.

Plaintiff's complaints in October 1957 were of backache, irregular menstrual periods with clots and profuse flowing. Because of her previous history of cancer, plaintiff was concerned about these symptoms. Dr. Weber found she had an enlarged uterus and it was then flowing profusely. A dilation and curettement was ordered. She was hospitalized and this surgery was carried out. Tissue was removed and examined by a pathologist, who rendered a diagnosis of 'adenomatous phyperlasia of endometrium in the proliferative phase,' meaning a marked overgrowth, marked hyperplasia of the endometrial tissue on the glands of the lining of the uterus, fibroid tumors of the uterus, all indicating the necessity for a hysterectomy. It was concluded that that operation should be performed. Dr. Weber performed it and Dr. Jones was invited by him to assist.

Plaintiff's medical evidence pertaining to the operation was the testimony of Dr. Weber and portions of the deposition of Dr. Jones, all elicited under Code of Civil Procedure, section 2055, plus the hospital charts and records.

Dr. Weber testified that he was a qualified specialist and gynecologist. Counsel for plaintiff so conceded. He had performed or assisted in performing 700 to 800 hysterectomies. Dr. Jones, as a duly qualified surgeon, did not perform the surgery but did only what the chief surgeon directed. The procedure adopted was a recognized one and described as the 'Richardson' method. The operation, described by the two doctors as a complete hysterectomy, was uneventful and nothing unusual was encountered.

Plaintiff testified that after the operation she stayed in the sospital for about one week and felt no paid except when voiding; that a few days thereafter she felt a serious pain, became distended and while seated at the table an enormous gush of urine escaped and the next day she called Dr. Weber who examined her and said that the found a leakage of urine from the vault of the vagina; that he took her into his office and told her he had put a suture through the flap of the bladder; that he believed a vesical vaginal fistula, an opening between the bladder and the vagina (hereinafter referred to as a fistula) had occurred; that he would hope for a spontaneous closure, but if not surgery would have to be performed; that he told her to go home and follow certain instructions and she did so for a few days, without relief.

Plaintiff further testified that after the hysterectomy operation she asked to see an urologist who examined her and recommended a cystoscopy, I.V.P, which was performed by Dr. Boughten; that she did very well for a few days and then the same thing occurred; that she left and went to British Columbia and consulted surgeons there who removed portions of the fistula and that she was in the hospital one month; that after the first ten days the fistula reopened, a Foley catheter was employed and after being placed on a Stryker Frame, and following a period of treatments, she recovered. She returned to her duties in La Jolla about August 1958 and commenced this action against Dr. Weber and Dr. Jones. No evidence was presented as to the findings of the Canadian doctors.

Dr. Weber testified that usually a patient does not suffer a fistula following a total hysterectomy, but there are reported incidents of this occurrence even in the hands of the most skilled specialists in the country and the occurrence of this incident is approximately two or three per thousand cases and is an accepted inherent risk of the procedure and is a calculated and recognized incident. He then testified that in his opinion irradiation, although not a major factor, was a contributing factor in this particular case to the fistula. He testified that in his opinion there is usually surgical trauma and bruising of the bladder as a result of the handling of the tissue during a complete hysterectomy. He testified that one connot get a fistula from putting a stitch through a flap of the bladder and that he could not state what was the cause of the fistula in this particular case. That is, he could not say whether it was due to a bruising of the tissue, whether it was due to an inherent weakness in that point, whether it was because of vaginal infection in association with other causes, or whether it was because of a suture in the wall of the bladder. He then stated that he placed all sutures wherever areas of tissue were brought together after the removal of the uterus and that this was his responsibility and that it is mandatory in any hysterectomy to place both ligatures and suture ligatures on the wall of the bladder in the tissue adjacent to the wall for the control of bleeding. He testified that it is impossible to dissect these tissues free without causing bleeding and that sutures are necessary to control bleeding. He denied stating to plaintiff that he placed a suture in the flap of the bladder.

Plaintiff read into evidence portions of the deposition of Dr. Jones. He testified that he did not know how this fistula occurred; that usually the assistant will use either a sponge or piece of tape to keep the bladder away from the vault of the vagina and the purpose of this is to prevent the bladder from being sutured to the vaginal vault; that in the instant case it would be fair to state that the fistula was not caused by a tumor, infection or by the tearing of the bladder. After placing in evidence the hospital chart and records, plaintiff rested her case in chief. It was at this stage in the proceedings that defendants moved for a judgment of nonsuit. The nonsuit was granted only as to Dr. Jones. Judgment of dismissal as to him followed.

The propriety of this judgment in favor of Dr. Jones is now raised. Much depends on the determination of the question whether the trial court should have and did apply the doctrine of res ipsa loquitur in its ruling. Since the trial judge refused to give proffered instructions on the doctrine as to defendant Dr. Weber, we will assume he did not apply it to the defendant Dr. Jones. The pivotal question then is whether the court erred in refusing to give or consider the proffered instructions which are based on BAJI No. 206; Guillen v. Martin, 166 Cal.App.2d 172, 177, 333 P.2d 266; BAJI No. 214-B and Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124.

The proffered instructions read in part:

'PLAINTIFF'S REQUESTED INSTRUCTION NO. K

'If, and only in the event, you should find that there was an accidental occurrence as claimed by plaintiff, namely, that the bladder of the plaintiff was sutured during the operation of November 8, 1957, and that the fact of such suturing of the bladder was not recognized by the defendant surgeons who were in attendance at that time; and if you should find that from that accidental event, as a proximate result thereof, Plaintiff, Mrs. Siverson, has suffered injury, you are instructed as follows: An inference arises that the proximate cause of the occurrence in question was some negligent conduct on the part of those defendants. That inference itself is a form of evidence, and if none other exists tending to overthrow it, or if the inference, either alone or with any other evidence supporting it, preponderates over contrary evidence, it warrants a verdict for the plaintiff, Mrs. Siverson. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendants to rebut the inference by showing that they did, in fact, exercise the care and diligence required of them, or that the accident occurred without being proximately caused by any failure of duty on their part.' (Italics ours.)

(It should be here noted that plaintiff claimed in her complaint that defendants 'negligently and unskillfully operated upon * * * plaintiff.' Furthermore, in the proffered instruction plaintiff calls upon the court to instruct as a fact what plaintiff claims defendant did.)

'PLAINTIFF'S REQUESTED JURY...