REGINALD J. QUINTAL, a Minor, etc., et al., Plaintiffs and Appellants, v. LAUREL GROVE HOSPITAL et al., Defendants and Respondents.
S. F. No. 21771
In Bank
Dec. 14, 1964
62 Cal.2d 154
Hardin, Fletcher, Cook & Hayes, Cyril Viadro, Peart, Baraty & Hassard, George A. Smith, Joseph F. Rankin and Richard G. Logan for Defendants and Respondents.
PETERS, J.—Plaintiffs appeal from judgments notwithstanding the verdicts, and from alternative orders granting all defendants a new trial. In our opinion the judgments notwithstanding the verdicts must be reversed, and the orders granting a new trial must be affirmed.
The case revolves around the tragic experiences of plaintiff, Reginald Quintal (Reggie), who, in July of 1960, when the events here involved occurred, was 6 years of age. Prior to July 11, 1960, Reggie was a normal, healthy child, suffering only from an inward deviation of the eyes. On July 10, 1960, he entered the defendant hospital for the purpose of having this condition corrected by a minor operation to be performed on July 11, 1960, by defendant Dr. Palmberg. On the morning of that day, during the course of the administration of the anesthetic by defendant Dr. Thornburg, Reggie suffered a cardiac arrest. He was resuscitated by means of an open chest heart massage. As a result of his brain being deprived of oxygen during the period his heart was stopped, he suffered severe brain damage resulting in his becoming a spastic quadriplegic, blind and mute. Reggie, through his guardian ad litem, his mother, brought this action against the two doctors and the hospital for malpractice. His mother
The facts are as follows: In 1960, Reggie was suffering from some inward deviation of the eyes, but otherwise was normal and healthy. On May 8, 1960, he was taken to Laurel Grove Hospital in Castro Valley for an operation aimed at correcting the eye condition. The operation was performed by defendant Dr. Palmberg, an ophthalmologist, and was completed without incident. The anesthesiologist at that first operation is not a party to this case. He was an associate of defendant Dr. Thornburg. The first operation was not entirely successful in curing the deviation, and, after conservative treatment failed to cure the condition, it was decided that another operation was necessary. On July 10, 1960, Reggie was again taken to the Laurel Grove Hospital for an operation scheduled for the next morning, and estimated to take 20 minutes. Dr. Palmberg was to do the eye surgery, and Dr. Thornburg was to administer the anesthetic. The evening Reggie entered the hospital he was crying, with a running nose, was quite apprehensive, and was uncooperative. The medical record in fact shows that just before surgery he was “very apprehensive” and “very agitated.” He had a temperature when he first arrived at the hospital, which increased up to midnight. The hospital records purport to show that his temperature, just before the operation, was a little under normal, but by expert testimony it was shown that there had been a correction and erasure in that record, and what the original record showed does not appear. The erasure was not explained by defendants. The records also show that it was therein noted that the preoperative medication aimed at sedating the patient was “unsatisfactory.”
When Dr. Palmberg entered the operating room Reggie was already there, and Dr. Thornburg was administering the anesthetic in a normal fashion. Dr. Palmberg took no
During the administration of the anesthetic, and before the process had been entirely completed, Reggie suffered a respiratory arrest followed by a cardiac arrest. This means that his breathing and heart stopped. This, of course, cut off blood and oxygen to his brain. The record shows that the brain, without damage, may be without oxygen for not more than three minutes, but that every second over the three-minute limit endangers the patient and makes brain damage more probable.
When the respiratory and cardiac arrests occurred, Dr. Thornburg called out that Reggie‘s heart had stopped beating. Dr. Palmberg and his assistant rushed toward the table. Dr. Thornburg let the anesthetic gases out of the anesthetic bag, filled the bag with pure oxygen, pumped the bag with one hand and with the other attempted to restore Reggie‘s heart action by external massage. This process was continued for 20 or 30 seconds and was then stopped to ascertain if the boy‘s heart had started. It had not. The process was repeated for another 20 to 30 seconds, but without success. Dr. Thornburg then asked Dr. Palmberg to open Reggie‘s chest in order to administer manual massage to the heart. Dr. Thornburg emphasized that this operation had to be done very quickly. Dr. Palmberg stated that he did not feel qualified to perform such an operation, and started to leave the operating room to get help. Just near the door to the operating room he encountered Dr. Beumer, a surgeon. Dr. Beumer, at Dr. Palmberg‘s request, entered the operating room, was quickly gloved, and was handed a scalpel. He opened Reggie‘s chest and began heart massage. The heart responded almost immediately, and began once again to beat. The beat at first was uneven and it was twice necessary to use a defibrillator (an instrument that gives electric shocks to the heart) to correct the defective heart action. Although the evidence is confusing and somewhat in conflict, that most favorable to appellants is that about four minutes elapsed between the time Dr. Thornburg first noticed that the heart had stopped and the time the heart was again started by means of the open heart massage. Sometime after the operation it was discovered that as a result of brain damage Reggie was a spastic quadriplegic
The plaintiffs’ counsel, on the question of the propriety of the procedures employed, did not produce any independent expert witnesses, but relied on the cross-examination of the two respondent doctors, called under the provisions of
The propriety of the judgments notwithstanding the verdicts.
These must be considered, of course, as to each defendant separately, although many of the facts are pertinent to two or more of the defendants.
The rules applicable to judgments notwithstanding the verdict for defendant are well settled and are agreed to by all the parties. Such a motion may be granted, properly, only when, disregarding the conflicting evidence, and indulging in every legitimate inference in favor of the plaintiff, the result is a determination that there is no evidence of substantial nature to support the verdict. The trial court, on such motion, is not permitted to weigh the evidence, and on an appeal from the judgment entered on the granting of such a motion, the appellate court must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences in support of the judgment.
The propriety of the judgments notwithstanding as to Dr. Palmberg and Dr. Thornburg.
Both of these defendants are highly qualified and competent specialists. Dr. Thornburg is an American board certified anesthesiologist, and Dr. Palmberg is an American board certified ophthalmologist. They are, of course, held to that standard of learning and skill normally possessed
There was evidence that Reggie‘s cardiac arrest was caused by “vagal stimulation,” that is stimulation of the vagus nerve, a basic nerve involved in the beating of the heart. Cardiac arrest is a known and calculated risk in the giving of a general anesthetic. The statistics produced as to its frequency are highly conflicting. Certainly it can be said that it occurs rarely but constantly. It can be caused by negligence. Thus it can be caused by an improper mixture of the anesthetic, by careless intubation, by giving the anesthetic while the patient has some infection, by an improper mixture of oxygen during anesthesia and by several other causes. It can also result where there is no negligence on the part of the doctors. Thus, it can result from cardiac disease, from unknown and hidden idiosyncrasies of the body, from an upset in the electrolyte balance of the body, and from other unknown causes. In the present case although the cause—vagal stimulation—was known, the cause of such stimulation was unknown. No expert testified, directly, as to the cause of the cardiac arrest suffered by Reggie.
While there was no direct testimony that the most likely cause of the vagal stimulation was negligence, there was evidence to the effect that if due care is used a cardiac arrest does not ordinarily, but can, occur. Defendants testified that several of the unknown causes were not here present, but their credibility in this respect was for the jury. Dr. Cullen, president of the American Board of Anesthesiology and chairman of the Department of Anesthesiology of the University of California, opined that 90 per cent of the deaths occurring in patients under anesthesia were due to improper management of the airway. The hospital reports, available to both doctors, showed, without explanation, that the preoperative medication used in May had been more than doubled in July; that when the boy arrived at the hospital he was apprehensive, uncooperative, crying and agitated. The records disclosed that on the morning of the operation
All of these factors apply to both doctors, both of whom knew the facts, had access to the records, and either could have called off the operation if he believed it would be dangerous.
There is another important factor relating to negligence on the part of Dr. Palmberg. It will be remembered that when Dr. Thornburg asked him to open the boy‘s chest, emphasizing that time was essential, he stated that he did not feel competent to do so and sought someone that was. He rushed to the door of the operating room and found Dr. Beumer. Dr. Beumer came into the room, was gloved, was handed a scalpel, and then opened Reggie‘s chest. Although a surgeon, he had never before performed such an operation.
There was much relevant testimony on the problems presented by this evidence. Various experts stated that car-
Under such facts, two questions immediately arise. Would reasonable prudence have required that Dr. Palmberg, although an ophthalmologist, a surgeon, but a specialist, possess the skill to perform such a relatively simple operation? He was required to take and did take general surgery courses in medical school. If Dr. Palmberg did not possess such skill, does not reasonable care require that such a surgeon see to it that a competent surgeon is immediately in attendance to meet this emergency if it should arise? Because of the known time limits involved, by “immediately available” is meant not in the hospital, but in the operating room itself. These are difficult questions. It is arguable that the standard of due care involved in this respect does not require expert evidence, that is, that the required standard of care is so clear that it is a matter that the jury could decide without expert evidence. However, it is unnecessary to rely
It is true that there is expert evidence from the defendants and from their witnesses that the standard of care then prevalent in Alameda County did not require that an ophthalmologist be competent to perform a thoracotomy. But there is other expert evidence from these very same witnesses that would support an inference to the contrary. All the witnesses admitted that the possibility of a cardiac arrest was a known risk. All admitted that the operating surgeon, regardless of his speciality, should be prepared in some way. Dr. Dugan, a thoracic surgeon, although he testified he did not believe an ordinary ophthalmologist was qualified to open a chest, and that if he were the patient he would take the fellow in the hall, even if to get him consumed 30 seconds, rather than have an unqualified man open his chest, admitted on cross-examination that “Anybody, any surgeon who is operating in a hospital, I will admit and agree, in dire circumstances should be able to do an open chest operation.” Certainly, the circumstances here involved were “dire,” and every second was precious. The fact that Dr. Beumer was available as quickly as he was was a coincidence and not a planned procedure. Thus the jury could have inferred from the testimony that either Dr. Palmberg should have performed the thoracotomy, or should have taken steps to have someone present to do so.
Thus the evidence, while circumstantial, was sufficient to go to the jury on the question of the two doctors’ negligence. This is so without any reference to or reliance upon the doctrine of res ipsa loquitur. Independently of that doctrine, there is evidence sufficient to permit the jury to infer negligence on the part of the doctors. But because a new trial is required, something should be said about whether the jury on such new trial should be instructed on the doctrine. We are of the opinion that it should.
It is somewhat difficult to separate the so-called conditional res ipsa doctrine from inferences predicated on circumstantial evidence, because res ipsa in such a case is, of course, a doctrine fundamentally predicated on circumstantial evidence, and the weight that should be given to it.
The facts of the present case present a clear situa-
As stated in Fowler v. Seaton, 61 Cal.2d 681, 686 (1964):
“It is our opinion that the jury could find that the doctrine of res ipsa loquitur applies under the facts here involved. Generally, that doctrine applies ‘where the accident 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.’ (Siverson v. Weber, 57 Cal.2d 834, 836 (1962); accord Faulk v. Soberanes, 56 Cal.2d 466, 470 (1961); Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 (1952).) . . .
“One of the frequently quoted statements of the applicable rules is to be found in the opinion of Chief Justice Erle in Scott v. London & St. Katherine Docks Co. (1865) 3 H. & C. 596, quoted in Prosser on Torts (2d ed. 1955) section 42, at page 201, as follows: ‘There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’
“Of course, negligence and connecting defendant with it, like other facts, can be proved by circumstantial evidence. There does not have to be an eyewitness, nor need there be direct evidence of defendant‘s conduct. There is no absolute requirement that the plaintiff explain how the accident happened. . . . Res ipsa loquitur may apply where the cause of the injury is a mystery, if there is a reasonable and logical inference that defendant was negligent, and that such negligence caused the injury. (Prosser on Torts, supra at p. 204.)”
It is true that in Siverson v. Weber, 57 Cal.2d 834, 836 (1962), the court affirmed a nonsuit in favor of a surgeon where the medical experts all testified that they could not determine the cause of the fistula there involved, and that fistulas do occur although due care is used. There is similar testimony here. The court in Siverson, supra, listed the usual causes of such injury and then stated (p. 838):
“There is nothing to indicate that if the fistula was caused by any of the factors listed above or any combination of them the injury sustained by the plaintiff was a result of negligence.” And again at page 839: “No medical witness testified that in the rare cases where fistulas occur they are more probably than not the result of negligence.” The court emphasized that the fact a particular injury is a rare occurrence does not in itself prove that the injury was probably caused by negligence.
Each case, of course, must be determined on its own facts. Here the facts are somewhat similar to those in Davis v. Memorial Hospital, 58 Cal.2d 815 (1962). There a rectal abscess occurred after an enema. There was medical evidence that 90 per cent of all such abscesses result from bacterial infection, that a mucous membrane normally prevents such infection, and that in the medical expert‘s opinion the insertion of the enema tube caused the break. There was other expert testimony that
The evidence in the present case, although not as strong as in Davis, is nevertheless sufficient to warrant conditional instructions on res ipsa. Dr. Cullen did testify that 90 per cent of the deaths occurring in patients under anesthesia from cardiac arrests were due to improper management of the airway. There was also testimony that exposure of an improperly premedicated patient to anesthesia not infrequently precipitates responses which endanger the life of the patient; that agitation and apprehension of the patient are danger signals; that the temperature of the patient is important, and normally, in an elective operation, anesthesia should not be given for 72 hours after the temperature becomes normal; and that failing to keep the tissues adequately oxygenated is the forerunner of many anesthetic complications. All of these, obviously, could involve negligence. It was for the jury to say whether it was more probable than not that any of them did. Thus, on the new trial, the jury should be instructed on this doctrine.
Liability of the hospital.
It has heretofore been demonstrated that the jury was justified in finding that Dr. Thornburg and Dr. Palmberg were negligent. That does not, of course, automatically, in the absence of an agency, impose liability on the hospital. But there was evidence from which an agency could be inferred. Dr. Thornburg testified that he had an active part in the management of the hospital. He was its acting administrator and a member of its board of directors. As acting administrator he came to an agreement with the group of anesthesiologists with whom he was connected to furnish a proper anesthesiologist upon demand of the hospital. Thereafter, as administrator, he presented the proposed plan to the directors, and as a member of the board, voted for it.
When the mother of Reggie brought him to the hospital on July 10, 1960, she was required by the hospital officials to sign an “Authority to Operate,” authorizing the physician in charge of Reggie “to administer such treatment and the surgeon to have administered such anesthetics as found necessary and to perform the” eye operation. This document was not only secured by hospital employees, but was witnessed by two employees of the hospital.
This evidence presented a question of fact to the jury. The factual situation is somewhat similar to that presented in Seneris v. Haas, 45 Cal.2d 811 (1955), where the hospital was held liable for the negligence of an anesthesiologist. There, as here, the anesthesiologist was a member of the hospital staff, there, as here, the anesthesiologists used in the hospital were approved and appointed by the board of directors upon recommendation of the medical staff; the anesthesiologists there, as here, were on call by the hospital; there, as here, the anesthesiologist billed the patient; there, as here, all medications, white clothing, and nursing services, etc., were furnished by the hospital. There, unlike here, the anesthesiologist had no separate office, but took his calls from the hospital at his home. The court held that such a factual situation presented a question of fact as to whether an agency existed. The court stated (p. 831): “Unless the evidence is susceptible of but a single inference, the question of agency is one of fact for the jury [citation]. We said in Rice v. California Lutheran Hospital, 27 Cal.2d 296, 304 (1945), that ‘It should be noted that a nurse or physician may be the servant of a hospital, thus requiring the application of the doctrine of respondeat superior even though they are performing professional acts. [Citations.]’
“In Stanhope v. Los Angeles College of Chiropractic, 54 Cal.App.2d 141, 146 (1942), the court said: ‘“An agency is ostensible when the principal intentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.“’
“‘An examination of the evidence hereinbefore referred to which was produced on the issue of agency convinces us that respondent has met the requirements enumerated in the Hill case. So far as the record reveals appellant did nothing to put respondent on notice that the X-ray laboratory was not an integral part of appellant institution, and it cannot seriously be contended that respondent, when he was being carried from room to room suffering excruciating pain, should have inquired whether the individual doctors who examined him were employees of the college or were independent contractors. Agency is always a question of fact for the jury.‘”
Under the theory of the Seneris case and of the cases referred to therein (see also Smith v. Fall River Joint Union High School Dist., 118 Cal.App. 673, 681 (1931); Messner v. Board of Dental Examiners, 87 Cal.App. 199, 204 (1927); Riskin v. Industrial Acc. Com., 23 Cal.2d 248 (1943)) the agency question was one of fact.
For all of the foregoing reasons the judgments notwithstanding the verdicts as to all three defendants must be reversed.
The orders granting new trials.
Obviously, the new trial orders must be affirmed. One of the grounds specified in the written orders was insufficiency of the evidence. The granting of a new trial on this ground is, of course, within the discretion of the trial court. (Yarrow v. State of California, 53 Cal.2d 427 (1960); Estate of Masrobian, 207 Cal.App.2d 133 (1962).) It is only where it can be said as a matter of law that there is no substantial evidence to support a different judgment that an appellate court will reverse an order granting a new trial on insufficiency. This is not such a case. As already pointed out many of the conclusions that
The judgments notwithstanding the verdicts as to all three defendants are reversed, and the orders granting all three defendants a new trial are affirmed, each side to bear its own costs on this appeal.
Tobriner, J., and Peek, J., concurred.
MOSK, J., Concurring and Dissenting.—The trial judge in granting the motion for a new trial concluded the evidence was insufficient to establish negligence. Under well settled law we must ordinarily assume this is so, but here the trial court erroneously failed to consider this a conditional res ipsa loquitur case, as the majority opinion so persuasively demonstrates it to be. (Davis v. Memorial Hospital (1962) 58 Cal.2d 815.) The rule under these circumstances is that a “defendant will not be held blameless except upon a showing either (1) of a satisfactory explanation of the accident, that is, an affirmative showing of a definite cause for the accident, in which cause no element of negligence on the part of the defendant inheres, or (2) of such care in all possible respects as necessarily to lead to the conclusion that the accident could not have happened from want of care, but must have been due to some unpreventable cause, although the exact cause is unknown. In the latter case, inasmuch as the process of reasoning is one of exclusion, the care shown must be satisfactory in the sense that it covers all causes which due care on the part of the defendant might have prevented.” (Dierman v. Providence Hospital (1947) 31 Cal.2d 290, 295; Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal. App.2d 784; McDonald v. Foster Memorial Hospital (1959) 170 Cal.App.2d 85, 102; Bischoff v. Newby‘s Tire Service (1958) 166 Cal.App.2d 563, 569; Oldis v. La Societe Francaise (1955) 130 Cal.App.2d 461, 469; Talbert v. Ostergaard (1954) 129 Cal.App.2d 222, 228.) If the res ipsa loquitur inference had been invoked herein, I would find that the defendants failed to overcome it by adequate affirmative evidence, and the trial court would not, or should not, have granted the motion for a new trial on the ground of
To approve the granting of this motion penalizes the plaintiff who offered a proper res ipsa loquitur instruction, favors the defendants who erroneously opposed the res ipsa theory and instruction, and affirms the trial court which the majority opinion finds was in error. This is a result in which I cannot acquiesce.
The majority opinion does not discuss the question of excessive damages as a ground for new trial. Defendants here concede the injuries were both severe and permanent but attempt to support the claim that damages were excessive on the theory that “common knowledge would seem to dictate that the life expectancy of a child 6 years old in plaintiff‘s condition could not be long.” No authority is cited to justify bringing that medical subject under the umbrella of common knowledge.
I concur in reversing the judgments notwithstanding the verdicts. I would reverse the order granting defendants a new trial.
TRAYNOR, C. J.—I concur in the judgment.
Since there is substantial evidence to support a verdict for plaintiffs, I agree that the judgments notwithstanding the verdict must be reversed. I likewise agree that the orders granting a new trial must be affirmed because there is substantial evidence to support a verdict for defendants. I cannot agree, however, that the doctrine of res ipsa loquitur is applicable or that verdicts could be sustained on certain other theories of negligence invoked by the majority opinion.
“As a general rule, res ipsa loquitur applies where the accident 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. . . . In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both common knowledge and the testimony of expert witnesses.” (Siverson v. Weber, 57 Cal.2d 834, 836 (1962).)
Since the possible causes of cardiac arrests are not a matter of common knowledge (cf. Davis v. Memorial Hospital, 58 Cal.2d 815, 817 (1962)), expert testimony is required before a conditional res ipsa loquitur instruction would be proper. Expert testimony that it is more
No such expert testimony appears. Plaintiffs rely on testimony of both defendant doctors that, when due care is used, cardiac arrests do not ordinarily occur. This testimony, however, fails to establish anything with respect to the question whether, among the possible causes, negligence is the more probable one when these arrests do occur. It is true that cardiac arrests do not ordinarily occur when due care is used because, as all the testimony makes clear, a cardiac arrest is a rare occurrence. As stated in Siverson v. Weber, supra, 57 Cal.2d 834, 839, however, “The fact that a particular injury suffered by a patient as the result of an operation is something that rarely occurs does not in itself prove that the injury was probably caused by the negligence of those in charge of the operation.” The record shows that plaintiffs’ counsel was fully aware of this holding in the Siverson case. He could easily have framed his questions to elicit testimony as to the probability of negligence when cardiac arrests occur, but he did not do so.
Plaintiffs also rely on expert testimony “that 90 percent of the deaths occurring in patients under anesthesia are due to improper management of the airway.” This testimony, however, cannot reasonably be interpreted to mean that when cardiac arrests occur, it is more probable than not that they are caused by negligence. Thus, this percentage covers deaths other than those following cardiac arrests. The expert who offered this estimate testified that deaths may occur under anesthesia from disturbances that are at least as likely to
Defendant anesthesiologist testified that the most common cause of cardiac arrest is direct or indirect stimulation of the vagus nerve. He added that in his opinion such stimulation was the cause of this cardiac arrest. He testified further that there were several stimuli that might have been operative. This testimony, however, sheds no light on whether negligence is more probably than not the cause of bringing any of these stimuli into play. Moreover, the record presents abundant uncontradicted evidence that the medical profession is in doubt as to the causes that ultimately bring about the physiological events leading to cardiac arrest. In view of such evidence, the most that can reasonably be concluded from the medical testimony with respect to the probabilities of negligence as a cause of cardiac arrest is that negligence will increase the risk of its occurrence. There is no expert testimony that when it does occur, negligence is more probably than not the cause. Accordingly, plaintiffs are not entitled to invoke the doctrine of res ipsa loquitur.
The question remains whether there is any evidence that defendants failed to possess and exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances. (Sinz v. Owens, 33 Cal.2d 749, 753 (1949).)
There is no evidence that defendant doctors were negligent in making the initial decision to operate. Although the child
The record of the child‘s temperature adds no more. The temperature had risen to 100.6 on the eve of surgery. Defendant ophthalmologist investigated the fever and found that the rise was not due to any infection that would increase the risk of complications under anesthesia. Plaintiffs offered no evidence to the contrary. The hospital chart shows that the child‘s temperature was below normal on the morning of surgery. Medical experts testified that such a sequence of events would not contraindicate surgery. Although a hand-
There is also no evidence that defendant ophthalmologist was under a duty either to possess the skill to perform a thoracotomy in the event of a cardiac arrest, or to see to it that a competent surgeon was in the operating room at all times. Every medical witness testified that it was standard practice to call in a thoracic or general surgeon in the event of cardiac arrest. No medical witness testified that it was standard practice for an ophthalmologist to possess such skill. It is true that one surgeon, who otherwise agreed with these conclusions, said on cross-examination, “Anybody, any surgeon who is operating in a hospital, . . . in dire circumstances should be able to do an open chest operation.” Yet he added, “However, if he has any choice whatsoever and he has never done this, and he has anyone better qualified in the immediate vicinity he is well advised to have them do it.” The rest of this surgeon‘s testimony indicates that by “immediate vicinity” he did not mean that a competent surgeon ought always to be present in the operating room itself. Moreover, this expert testified that he had been active in the local campaign designed to alert all specialists to the possibility of cardiac arrest and to inform them about the procedure of thoracotomy. Yet he testified that despite this campaign most specialists could not be expected to perform the operation. Hence his statement that any operating surgeon should be able to open a chest can reasonably be interpreted only as an expression of an ideal that had not yet become a standard of care. Hence no jury could reasonably conclude that defendant ophthalmologist failed to meet the standard of care by not performing the thoracotomy himself or not insuring the presence of a competent surgeon in the operating room at all times.
There is evidence, however, that defendants were negligent in failing to make reasonable preparation for the possible occurrence of a cardiac arrest. (See Harper and James, The Law of Torts (1956) § 16.11, p. 939; Prosser on Torts (3d ed. 1964) pp. 173, 343-344.) Both defendant doctors knew that cardiac arrest was an inherent risk of surgery under
Although there is no expert testimony that the prevailing medical standard of care requires such preparation for a possible cardiac arrest, expert testimony is not required when scientific enlightenment is not necessary to show that failure to make such preparations is unreasonable. (Ales v. Ryan, 8 Cal.2d 82, 100 (1936); Barham v. Widing, 210 Cal. 206, 214 (1930); see Lawless v. Calaway, 24 Cal.2d 81, 86 (1944); Bruce v. United States, 167 F.Supp. 579, 583 (1958); Prosser on Torts (3d ed. 1964) p. 167.) On that basis alone, I would reverse the judgments notwithstanding the verdicts.
MCCOMB, J.—I dissent. I would affirm the judgment in favor of defendants for the reasons expressed by Mr. Justice Salsman in the opinion prepared by him for the District
Schauer, J.,* concurred.
Respondents’ petitions for a rehearing were denied January 13, 1965. Traynor, C. J., and McComb, J., were of the opinion that the petitions should be granted.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
Notes
“Q. What do you mean by improper management of the airway? A. It has not been managed to maintain the free movement of air.”
“Q. That is due to the anesthesiologist‘s mismanagement? A. No, that doesn‘t mean that, necessarily. It means that sometimes it is impossible to do this.”
“Q. In most instances it is preventable in the exercise of due care by the anesthesiologist, isn‘t it, Doctor? A. In many instances it is.”