Whaley v. Fowler, 17329

• Decision Date: 11 July 1957
• Docket Number: No. 17329,17329
• Citation: 313 P.2d 97,152 Cal.App.2d 379
• Court: California Court of Appeals Court of Appeals
• Parties: James E. WHALEY, Plaintiff and Appellant, v. Charles Beebe FOWLER, Edith B. Jacobson, Executrix of the Estate of J. C. Jacobson, Deceased, Sisters' Hospital, a corporation, et al., Defendants, Sisters' Hospital, a corporation, Respondent.

Page 97

313 P.2d 97

152 Cal.App.2d 379

James E. WHALEY, Plaintiff and Appellant, v. Charles Beebe FOWLER, Edith B. Jacobson, Executrix of the Estate of J. C. Jacobson, Deceased, Sisters' Hospital, a corporation, et al., Defendants, Sisters' Hospital, a corporation, Respondent.

No. 17329.

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

July 11, 1957.

Howard Magee, Philander Brooks Beadle, John T. Tully, San Francisco, for appellant.

Wyckoff, Parker, Boyle & Pope, Watsonville, for respondent.

BRAY, Justice.

In this action for alleged malpractice against defendant Sisters' Hospital, a corporation, and defendant physicians, the superior court entered an order dismissing the complaint as against said corporation and granted summary judgment in its favor. Plaintiff appeals therefrom.

Question Presented.

Were triable issues of fact presented by the affidavits and counter affidavits?

Record.

The complaint alleged that defendants and each of them so carelessly and negligently attended and treated plaintiff for compound fractures of the left tibia and fibula as to cause osteomyelitis to develop in plaintiff's left leg, and that as a proximate result of said treatment plaintiff suffered the amputation of that leg below the knee. Defendant hospital's answer denied the material allegations of the complaint. Defendant hospital filed a motion for order dismissing the complaint and for summary judgment pursuant to section 437c, Code of Civil Procedure, on the ground that the action had no merit. Some 16 affidavits used in another proceeding were filed by reference in support of the motion, Two counter affidavits were filed.

Issues of Fact.

In a proceeding under section 437c, Code of Civil Procedure, issue finding rather than issue determination is the pivot upon which the summary judgment law turns. Poochigian v. Layne, 20 Cal.App.2d 757, 760, 261 P.2d 738; see also Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 555-556, 122 P.2d 264. Whether an issue of fact exists is to be determined from the affidavits which have been filed. Cone v. Union Oil Co., 129 Cal.App.2d 558; 562, 277 P.2d 464; Low v. Woodward Oil Co., 133 Cal.App.2d 116, 118, 121, 283 P.2d 720; McComsey v. Leaf, 36 Cal.App.2d 132, 97 P.2d 242. If any doubt exists whether summary judgment should be granted, it should be resolved against the moving party. Travelers Indemnity Co. v. McIntosh, 112 Cal.App.2d 177, 245 P.2d 1065.

With these rules in mind let us examine the affidavits, first, those of defendant hospital, the moving party. The administrator and medical record custodian of the hospital averred that its records accurately recorded the treatment given patients, factual and medical information concerning their condition, any incident or occurrence affecting the patient's condition, and any accidental event occurring in connection with the patient's hospitalization and treatment. The record of the hospitalization and treatment of plaintiff contains no report or reference to any accidental occurrence or event affecting his physical welfare or condition. It is the practice to report any such incident to the administrator and none concerning plaintiff has been received.

Norma Gintert, graduate and registered nurse, surgical nurse, assisted defendant Fowler in surgical procedures upon plaintiff during the latter's treatment at the hospital on four different occasions. She has had 4 1/2 years training and experience in surgical nursing procedure and is familiar with the standard of practice in surgical nursing procedure in the Santa Cruz area. (The hospital is located in Santa Cruz.) Her actions and those of the other nurses assisting Dr. Fowler at these operations were in conformity with the standard of practice in the vicinity. No accident or injury occurred to the patient during any of these operations. At no time has she been employed by Dr. Fowler. He is not employed by the hospital but is an independent orthopedic surgeon accredited to the hospital. A similar affidavit was made by the 'surgical supervisor and circulating for operative procedures' nurse, who was present at each of the operations. Twelve registered nurses made affidavits to the effect that they cared for plaintiff as floor nurses during their respective tours of duty while he was in the hospital. They administered drugs, medicines and treatment prescribed by Dr. Fowler, following orders directly. While under their care no accident or injury occurred which directly or indirectly affected plaintiff or his condition. Each is familar with the standards of nursing practice in the area. The nursing care administered by the particular affiant and by the other nurses when observed by the affiant was in accordance with the standard practice. None of the affiants had ever been employed by either Dr. Jacobson or Dr. Fowler. Each nurse followed the specific orders of these doctors in respect to prescribed care and treatment of plaintiff, but in other matters followed the standard of nursing practiced in the area and the instructions and orders of the hospital.

Plaintiff filed two counter affidavits. The affidavit of plaintiff's attorney states that he is familiar with the facts of the action, and if sworn as a witness could testify thereto; that he has studied the hospital records and charts of plaintiff in connection with the accident described in the complaint; that he took the deposition of defendant Fowler; that defendant hospital is sued as a defendant because the negligence of its agents or employees caused plaintiff's personal injuries; that an infection developed in plaintiff's left leg while he was a patient at the hospital; that said infection was uncontrolled; that the facts established by the hospital records and Fowler deposition disclose that the hospital is jointly negligent with defendant Fowler.

Obviously, this affidavit states no facts, merely hearsay and conclusions of law. Neither the hospital records nor the deposition of defendants Fowler was before the court. Said affidavit is of no value in determining whether there were issuable questions of fact. See Low v. Woodward Oil Co., supra, 133 Cal.App.2d 116, 121, 283 P.2d 720.

Plaintiff's affidavit, after stating that the hospital is sued because of the negligence of its agents or employees that proximately contributed to plaintiff's injuries, states that he was a patient at the hospital from January 12, 1954, to September 28; that during said period an infection developed in his left leg; that it was uncontrolled and that as a direct result thereof, it was necessary to amputate his leg; that the agents and/or employees of the hospital were careless and negligent in treatment of him in that said infection remained uncontrolled, and in that they failed to take necessary preventive measures to control said infection.

Taking the affidavits together it appears that defendant Fowler performed certain operational...