*1 F. 18155. Bаnk. Oct. No. 1950.] [S. FRANKLIN CAVERO, Respondent, v. GENERAL
HENRY (a Corporation), Appellant. BENEVOLENT SOCIETY *2 Hadsell, Sweet, Ingalls Sydney &Murman Murman and P. Appellant. for
Hartley Hassard, F. Peart, Baraty, L. Howard Gus Geo. Bonnington A. Smith Alan L. Amicus on and as Curiae behalf Appellant. of
Hallinan, Zamloch, MacInnis & James Martin MacInnis Cleary William F. Respondent. for wrongful SCHAUER, J. In thisaction for death of 3-year-old plaintiff’s a son returned verdict plaintiff against favor of defendant Franklin General Society,1 corporation (hereinafter Benevolent termed the hospital), against plaintiff and in favor of defendants Judgment Nellie B. Null and Dr. John was entered Null.2 accordingly, hospital appeals. and the morning July plaintiff’s 5, 1946, on the appears It having his hospital рurpose for the defendant entered son During the Drs. Null. removed adenoids tonsils and gas ether, ad- which was anesthetic, operation the to come patient started The a nurse-anesthetist. ministered the anes- two three occasions on anesthetic out amended) (second complaint “Franklin plaintiff’s 1Named Hospital.” served, defendant, hut not was nurse-anesthetist. 2Also named as a After thetist administered more the third increase ether. patient’s ether Dr. John Null blood in the noticed that the something wrong, dark, throat was indicated that breathing and he also found had ceased. He there- then upon began apply respiration, artificial manual while mechanical resuscitator. left the room to secure a She returned with a resuscitator three or four minutes later preserv- but neither it nor other means used was successful ing restoring life to the child. grounds hospital
As reversal, contends that: 1. allegations Plaintiff failed to prove certain material his complaint; judgment respondeat
2. The supe- rests on the doctrine of rior, theory based on the erroneous anesthetist was employe of defendant hospital;
3. The trial prejudice hospital court erred to giving instructions, particularly certain instructions proposed the defendant doctors relative to the doctrine of ipsa loquitur. evidence,
The appeal which must be viewed *3 light most respondent favorable to (Estate (1943), Bristol 23 Cal.2d may 689]), P.2d be summarized as : follows hospital suggestion
The was taken to defendant the child Null, previously defendant Dr. Nellie B. who examined paid him. hospital The mother a fee the child’s to for use of operating the room for the anesthetic. patient’s moderately enlarged
The tonsils in- were condition; operation but flamed were not an acute the emergency major an nor not unusual case or an did it involve surgery. brought When the child was into room placed in already “pre- he had been or “intermediate” liminary after state”; placed operat- anesthetic he was on the ing administered, through table ether further was. first a mask by drops, “by tube, by gas, causing and later the ether to through bubble tubes.” Null,
Dr. who is of Dr. Null, John the son Nellie B. “bubbling through that tube while the ether child con process, constantly tinues unconscious ... is constant watched, degree bubbling- and varies in of how fast the oсcurs great . . . necessary amount of discretion in the [A] [is] through administration of that . . ether the tube . Unless the given proper amount is child would stay slowly probably he will anesthesia, if it bubbles too stage of fast, if he given too breathes turning, and if it is and be awake grave [Tjhere . . . is apt stop his heart to too fast rapidly may if ether is too occur sent danger well tube”; witness further through of bubbles the form anesthetic, relatively and ... safe that ether stated “is fact, experienced, . . to the less one . entrusted tonsillectomy. anesthetics, is a you giving train them what dangerous . . anesthetic is . sаfe, It is considered By abolishing may ... of the danger reflect itself [T]he changes eye blocks; in the reflexes, which the anesthesia changes pulse respiration, and rate color rate of through being . . . administered . . . an anesthetic [W]hile color, . . . . . Watch the tube . the anesthetist [must] eye reflexes, especially the patient’s pulse, respiration and . duty ... her . . reflexes should reflexes it is [T]he [not] during surgery person to a who is all the course of return at . . . proper state anesthesia Several supposedly in the during . the child . . times [here involved] regain partially cоnsciousness so the reflexes would gag return, and she throat, the reflex would anesthetist] [the depth to of the anesthesia before the would have increase the continued”; attributed “that operation could be witness . . ad being reflex action to . too little ether return times” he his mother asked ministered” and “two three ether, “By more which she to administer did oxygen opening the shutoff valve so as let the flow further it was increase”; stated that “unusual witness . . oc to awaken the extent . described ... this child . . casionally happens, supposed but it is not . This child tolerance fоr ether” and had no unusual the witness did 1‘any expect reason to those reflexes to return know operation.” the course depths “in the
While the child was of anesthesia” Nellie the tonsils and Dr. Null Null started to remove John assisted using by swabbing and “the suction ... a mechanical de- *4 pull blood, ... to mucous and out of the phlegm vice after throat”; just after the second tonsil was removed and he the “blood was increase anesthesia noticed the third extremely . . . means has not been a dark there [which] too oxygen supply, and either the child was sound I sleeping enough . . and called to the asleep and not . [sic] usually . watches it . . anesthetist anesthetist about [The] flow color . . whether the blood, and . shows [which] asleep” and the not, and not breathing properly or child is he time doing At same this.” “she was witness assumed 'any respiration, I didn’t see up child and at the “also looked something wrong . . . was [The told me there which also my] . noticed it . . apparently hadn’t [It anesthetist] child . . . gave much ether to the too opinion the anesthetist . . . the circumstances More than indicated [and] the blood . . . darkening of [W]hen was the cause usually im- placе . . the anesthetist danger takes . kind of respiration is mediately stops flow and artificial of ether I turned the suction immediately . . . This time instituted respiration giving my [began over mother artificial] to way by a mechanical my hands, . . the best . with oxygen into applies resuscitator, carbon dioxide and the . . . very procedure apply lungs . . . the best to giving hile I manual ... . . . was once resuscitator [W] was The machine respiration I the resuscitator.” called left the and returned room and anesthetist room later; four artificial with it minutes meanwhile three respiration Dr. John Null that he was cоntinued. actually alive, child did think that at time “the way telling whether of awake. was no the sense There beyond help possible recalling not, life or but it had had the resuscitator there we that if we mechanical oxygen gotten carbon dioxide and in there breathing, appearances started but to all would have outward they happen Lots of that will are was dead. times given respiration to artificial and the child will come back life.” revive The resuscitator was used but failed to child, opinion doctors child had died and both were of brought room, the time thе machine into the and that overdosage from the death resulted the anes- ether thetist; opinion Null John also testified that his competent anesthetist would not “make a mistake of that kind,” Dr. Nellie performed Null stated she “hundreds of these since had first been tonsillectomies” she practice in ease licensed to 1906 and this “the first which a death has them. The ever occurred one of” up put doctors further testified that “it is duty sleep, job” child to her if is her it was get she patient “moving around, sees the him under so we proceed.” can resuscitator
The doctors stated also that the mechanical *5 hospital equipment surgery rooms” “standard any present in kind of expect operation,” ... to be an “we immediately available, . always be . . it is not and it “should right room, by.” in but should there or close the present normally “expect find it in the room, would A doctor always hospital stipulated although it is not there.” The hospitals in the in practice is standard San Francisco “it operating available for have a resuscitator use rooms.” report autopsy indicated that the child’s
A coroner’s death hemorrhagic “inspiration of material.” The caused necessary using the that it was to cease suc- doctors testified respiration apply in artificial device order to tion material respiration would forced such into artificial lungs. the the
Concerning employment anesthetist the doctors provides than hospital, doctor, that the rather testified operating room, table, and nurses, anesthetist, the instru- operation” “everything for the ments doc- fee pay not select of the anesthetist did nor who tors Null in Dr. John stated that he worked this case. also did any employ the and was not “at con- employed in which” his mother her. Mrs. versation Steven- son, employe hospital, of defendant testified that she is “in charge a “nurse-anesthetist” who of all anesthetists” hospital operation at the time here at defendant in- hospital” ; among “employed volved the anesthetists ease; October, in this was the one who worked since “specializes physician a licensed who in the administra- charge in anesthetists; tion of anesthetics” had been of the “throughout past years . . several . more and more hos- physicians charge . . pitals placed . their licensed department”; who nurse-anesthеtist worked [anesthetic] employ just hospital case “was was,” salary “directly by” her paid other anesthetist hospital, defendant received no “fees or salaries from she using surgeons hospital” “paid facilities of the but was ’’ hospital alone, employ hospital left the she April, 1947. Mrs. Stevenson further couldn’t that she state “accurately” many hospital’s how of the defendant seven rooms were in use at the time of the here involved, but it “best all the rooms was her recollection” that running were then in use “because rooms are some those involved”; arе not where we local anesthetics under she did resuscitator mechanical had one hospital day involved. here was on the know where it anesthetists charge of Cardwell, physician he October, 1946, testified hospital since Washington, profession his practiced been trained and had *6 he was stationed II; in 1945 while prior World War 0.,D. States with the United California service northern and Francisco in San Navy, hospitals he visited three one “in connection with only one resuscitator observed therein surgery at suite”; suite surgery one suite or operating rooms; eight hosрital consists rooms five he had visited hospitals other three Francisco San surgery to constitute was the minimum he had observed Fran- hospitals San suite; he did not number of know the Francisco ; hospitals in San cisco so far as he knew two “they them in resuscitating devices, could have hospitals visited”; “the idea where” he had even “not having surgery room is near a resuscitator in or respiration of emergency causing so that if some arises patient “no matter disappear once”; used at it can be may how far must advanced, science the anesthetist аlways vigilant during operative procedure alert greatest naught . . . The . . . will skill serve the if any .; she difficult vigilance relaxes her time . . is a dangerous vigilance added to field, must be training.” scientific
1. Asserted Failure of Proof complaint alleged (paragraph VIII) “That . . . recklessly negligently per- defendants ... so carelessly, formed the tonsillectomy said . . . cause the operation as to . . . hemorrhage therefrom, child ... to suffer ... a severe and did carelessly, recklessly hemor- negligently and allow rhagic lungs material to flow of the . . . unchecked into child. [Paragraph re- proximate That as a direct IX.] sult of the negligence the de- carelessness, and recklessness of fendants . . . said . . . child caused to . . . suffocate and drown in its own blood ...” hospital urges although alleged plaintiff
Defendant really child suffocated in . . . Plaintiff didn’t “that the blood but, prove anything anything proved, if it can be said that may anes- was that the child have died from too much thetic,” provisions therefore, and that under the of section plaintiff prove failed to of Civil Procedure3
471 of Code his cause action. from the apparent, however,
It evidence rеlated properly, pre must be hereinabove that autopsy report to, from the sumed have concluded hemorrhagic “inspiration of immediate of death was the cause inspiration necessity material,” resulted from the that such using give respiration and to cease the suction artificial necessity caused device, and in turn erratic and of anesthetic. Defendant’s excessive administration respect proof is, therefore, contention of failure of without merit. Respondeat Superior
2. The Doctrine of
hospital
of law
cоntends that as a matter
Defendant
agent
employe
was the
of the defend
nurse-anesthetist
doctors,
hospital
ant
hospital,
rather than of
and that the
negligence
anesthe
cannot be held
of such
responsible
Again,
supports
apparent
amply
tist.
it is
that the evidence
implied
hospital’s
finding
the anesthetist
employe
relied
here involved. The cases
upon by
(see
(1944),
25 Cal.
hospital
Spangard
Ybarra v.
*7
491
486,
687,
2d
in which this
1258],
P.2d
162 A.L.R.
[154
special
court stated
nurse
appears”
“it
the anesthetist and
employes
hospital owner;
Culp (1937),
were
of the
and Ware v.
The contention that for adminis- responsible the were the than solely to a regulation of the anesthetic relates tration the implied in determination of conflict the evidence. The primarily least responsibility that mentioned the testimоny of the the supported of the anesthetist is quoted. doctors which has been heretofore Ipsa Loquitur 3. Doctrine Res The of gave the court request At of the defendant doctors the against the doctors applicable instruction a res allegation provides: claim . “Where . . the 3That section particular unproved, directed, proof not some . . to which the is is . general scope meaning, only, particulars it not to is or its 0and proof.” . . failure of a of variance . but a be deemed case
309 (1944), Spangard v. As declared in Ybarra hospitаl.4 and the Prosser, Torts, 295, 489, p. supra, 486, quoting from Cal.2d “(1) loquitur three conditions: ipsa the doctrine of has res ordinarily not a does occur the accident must be of kind which (2) must be negligence; of caused absence someone’s agency instrumentality exclusive an within the control defendant; (3) of have due volun- it must not been plaintiff.” tary part action or contribution on the of 221-222 Engelking (1939), P.2d v. Carlson Cal.2d of 695], peroneal was severed the course where the nerve declared, operation an “It plaintiff’s knee, this court applied true that a in restricted class of сases courts malpractice ipsa cases. But loquitur the doctrine of res say only layman a has a able to as been invoked where con- knowledge matter of common observation that sequences professional of were not such ordi- treatment narily if had been exercised. would followed due care sponge example, applied For it has a was left been where body closing operative patient after an incision ; application patient burned where [citations] ; compresses heating apparаtus hot where the [citations] patient X-ray ma- through was burned of an ; chine an infec- patient sustained where the [citations] through hypodermic tion needle use an unsterilized | ap- In each one the rule was of these situations citations]. plied experience because common teaches if care result one which would have occurred due had been exercised. entirely different situation. case shows “But the layman’s realm of the outside the lies
Here what done required show not evidence is Medical experience. why evidencе occurred. That how what occurred but you “I instruct follows: 4The reads as instruction thing say, ipsa loquitur, is to in which the doctrine ease speaks Hospital, itself, applicable Dr. Nellie Franklin for Null, blameless will be held Dr. John and the defendants Null and satisfactory ((1) explanation upon showing except either is, showing accident, cause of a definite an affirmative *8 negligence part accident, of the on which cause no element the possible respects (2) inheres, as in all of such care the defendant necessarily not could to the conclusion the accident to lead happened care, to 'some must have due from want of but been cause, although unpreventable In the unknown. the cause is exact exclusion, reasoning case, process of is one of latter inasmuch as the satisfactory all in the covers care shown must be sense the might pre part which due on of the causes care the ” vented.’ peroneal nerve beyond question not establishes due care used but may injured where even limited invariably number of result occurs unfortunate entirely ipsa loquitur is, therefore, doctrine of res cases. The malpractice proved.” has been inapplicable no 525, 34 Cal.2d 530-531 (1949), Moore Belt And in v. proposition, citing some cases on the 509], P.2d after fourteen cited “In the cases where the doctrine was stated that did the defendant not cause applicable held evidence that a matter injury the was remote and it followed as of common injury knowledge from nature of the that the result would the negligence. not without carelessness or the happen injury de case the inference that the was not caused the existing frоm fendant, but some source theretofore plaintiff’s not be drawn from system, was remote could evidence in the record. On the evidence of the substantial plaintiff’s history required jury not to but medical reasonably prior infection, could conclude "that any part negligent defendant, proxi act mate trouble. The inference based on cause common ipsa loquitur the root of the res doctrine. Before it could be drawn under the facts of this case the reject hypothesis plaintiff’s prior would have to .]" proximate cause. condition was the [Citations cites, nor party discovered, Neither has case been applicable which res has been held where a patient during a minor under dies while the influ- hospital urges ence of an anesthetic. Defendant that Ybarra Spangard (1944), supra, distinguishable v. 25 Cal.2d during plaintiff, appen- that there while unconscious injury dectomy, received a traumatic shoulder—a his body, healthy part subject of the of treatment nor area, operation—which layman within the covered say negli- would not have occurred the absence of testimony gence, expеrt necessary whereas here medical negligence patient’s determine whether or not caused the operation. death course expert testimony however, relied argues, Plaintiff case, establish an essen- plaintiff in the Ybarra upon quotes link from causation, this court’s in the chain tial Cal.2d): evidence, 488 of 25 (p. follows summary Sterling Clark, who also Wilfred “Plaintiff consulted Dr. which showed an area diminished X-ray pictures taken ¡shoulder away wasting atrophy sensation below *9 opinion the shoulder. of Dr. muscles around injury by was due to trauma or Clark, plaintiff’s condition right shоulder strain, applied or between his pressure neck. Garduño, Fernando
“Plaintiff was also examined Dr. injury expressed plaintiff’s paraly- that was a opinion who arising pathological causes, from origin, traumatic sis injury atrophy, systemic, and not and that the resulted right of use and restriction of motion of arm and loss shoulder.” suggestion
In the trial instant case there was no preexisting plaintiff’s as the result of a condi- that son died tion, systemic pathological expert whether in nature. The contrary wholly evidence is to the and in un- respect that, except contradicted. It for infected tonsils and shows slight temperature infection, adenoids and a due to such child healthy, tonsillectomy was normal and and that the major emergency. performed nor as an Null, forty stated, Nellie as heretofore that in her years practice performed she had of these ton- “hundreds sillectomies” and which a that this “the first case death ever has occurred in of” them. one
Under plain the circumstances hold tenable shown we position prima tiff’s establishes, the evidence in the facie absence of explanation, “the сhild’s death due to something ordinarily does not occur absence of negligence, agency instrumentality that it was caused within the control defendants, it was not due to any [legally voluntary action or contribution on material] part plaintiff of either child,” and, consequently, or the ipsa loquitur properly given. instruction was given
Since it was properly defendants, as all it is not made hospital by as to erroneous the fact that the jury accepted being explanatory sufficiently evidence as exculpatory respect hospital. to the doctors but not to the
A review of other instructions criticized defendant hos- pital prejudicial discloses no error. judgment
The is affirmed. Gibson, J., Shenk, C. J., Carter, J., Spence, J., con- curred.
TRAYNOR, J. I dissent. ipsa loquitur
The applicable doctrine of res is not unless accident is of ordinarily a kind that does not occur in negligence. (See Torts, Prosser, of someone’s the absence whether the accident 295.) determination Since p. light experi- usually made common kind is of that ex- not within common and since medical ence usually held in- doctrine of res perience, the invoked, can be how- malpractice. It in cases of applicable a matter layman say is able to of common ever, “where consequences profes- observation knowledge and *10 ordinarily have fol- were not such would sional treatment (Engelking exercised.” v. Carl- if due care had been lowed 216, son, 695].) 13 221 P.2d Cal.2d [88 24 Bottling Co., 453 In v. Coca Cal.2d Escola Cola [150 recognized may apply that the doctrine 436], P.2d the court testimony necessary expert to that though even establish ordinarily kind does in' was of a that not occur the accident negligence. The court noted that of someone’s the absence 22 City Inc., 369], Dairy, Cal.2d 614 P.2d Honea v. [140 judicial practices take notice the technical it of refused industry bottling and therefore could not determine reasonably in a could be concluded that a defect whether it probably negligence. than result of bottle more not the expert testimony case, however, In there as to the Escola basis court practices such and on the of that evidence the reasonably prob- it be that it more held concluded exploded negli- able than not that the bottle as the result оf ordinarily Thus, while of gence. occurrence an accident may negligence, is not in itself evidence of it he evidence light experience thereof when be said of common can ordinarily that accident would not have occurred in the when negligence, experts absence of the field are able knowledge experience to conclude on basis of their probabilities negligence is a of in favor that there balance of as the cause. objection permitting proof negligence
There is no valid malpractice cases such circumstantial The law evidence. “ requires physicians surgeons ‘possess that shall degree skill, knowledge, exercise that reasonable and care ordinarily possessed exercised pro members of their ’ ” (Sinz similar Owens, fession under circumstances. v. 33 749, 3, 757].) may 8 Experts Cal.2d 753 P.2d A.L.R [205 testify procedure followed that the the defendant fell short commonly employed, provide of that and thus direct evidence Apart negligence. from the that a procedure fact certain actually failed, however, happened In what often in doubt.
313 experts may laymen not, such situations know as would that probable is more than not accident was the result negligence. they testify jury may properly If so be they expert that if instructed find on the basis of the testi mony ordinarily question accident of the kind does may negligence, they occur the absence of infer particular negligence. accident was the result
In
case a child died on the
table
during
tonsillectomy.
An
instruction
the doctrine of
only if
may
would be
said
light
experience
of common
such
do
deaths
not ordi
narily
negligence
occur in the absence
experts
or if medical
had testified to that fact. Neither
application
basis for the
present.
experience
of the doctrine is
Common
teaches
ordinarily persons
during
do not die
the course of minor
operations.
layman
the rare cases where
occur the
deaths
weigh
is without
or experience
probabilities
against negligent
of and
conduct as the cause of death.
It has
generally
therefore
been held
doctrine does
apply
patient
when a
dies under
anesthesia
opera
minor
tonsillectomy
tion suсh as a
(Mitchell
tooth extraction.
Atkins,
(6
v.
36
W.W.Harr.)
Del.
451
A.
595];
[178
O’Rourke,
Dolan v.
N.D.
666, 668];
N.W.
John
*11
son Arndt,
v.
186
253,
Minn.
257
67];
N.W.
Loudon v.
[243
Scott,
From testimony jury would be in concluding, warranted not that an death was anesthetic probably more than not negligence, the result of but that upon any hazards anes- unavoidable attendant resulted from Scott, (Seе v. 58 Mont. P. thetization. Loudon majority opinion 488, 12 1487].) A.L.R. Nevertheless instruct a matter holds it was gave rise to an inference of law occurrence of the accident against defendants, an inference that negligence all the part only by evidence on their overcome affirmative showing that explaining cause it could of death part cause care on their have occurred from that due might prevented.
By instruction, the approving the court effect holds probably solely rare it more than because an accident is negligence. There a fatal hiatus in such caused rare reasoning. The fact establishes accident light no causes seldom occur. It sheds on possible question possible probable which of causes is the more happen. when Since common 'an accident does light question shed on when death experience no tonsillectomy occurs course of a since the rec- testimony expert bearing subject, ord is devoid of I applicable. is not would there- doctrine of judgment. fore reverse the
Edmonds, J., concurred. Appellant’s petition rehearing for a was denied November 27,1950. Edmonds, J., Traynor, J., rehearing. voted