Bowers v. Olch

Action against three surgeons, a hospital, and the supervisor of the operating rooms for damages resulting from alleged negligence during a surgical operation. Trial was by jury. Motions for nonsuit were granted as to the second assistant surgeon (who was the resident surgeon of the hospital), the hospital, and the nurse. Judgment of nonsuit was entered pursuant thereto. Verdicts were in favor of the principal surgeon and the first assistant surgeon, and judgment was entered pursuant thereto. Plaintiff appeals from the judgment of nonsuit and the judgment based upon the verdict. He contends that the verdict was contrary to the evidence; that the court erred in granting the motions for nonsuit, in admitting and excluding certain evidence, in instructing the jury, and in refusing to allow an amendment to the complaint.

On June 25, 1946, Dr. Isaac V. Olch, who was employed and paid by plaintiff, performed an operation upon plaintiff at the Cedars of Lebanon Hospital and removed about three-fourths of plaintiff’s stomach. Dr. Alex Shulman, who was employed and paid by Dr. Olch, assisted in the operation as the first assistant surgeon. Dr. Morris Freiden, who was employed and paid by the Cedars of Lebanon Hospital as surgical resident, assisted in the operation as the second assistant surgeon. Helen Pearson, who was a registered nurse and the administrative supervisor of the nine operating rooms of the hospital, assigned two nurses to attend the operation, and they were in the operating room during the operation. Miss Pearson was not in the operating room.

About April 1, 1950, plaintiff who had had recent attacks of fever and had enlarged lymph glands under his jaw and arms, was examined by Dr. Simkin at the Midway Hospital in Los Angeles. The examination showed tenderness particularly in the stomach along the right rib margin. X rays of plaintiff, taken in that hospital on April 7, 1950, showed a curved surgical needle within the soft tissues of the left upper quadrant (of the abdomen) below the rib margin. Dr. Simkin did not tell plaintiff that the X rays showed a needle. (That

Appellant contends that the court erred in permitting Dr. Olch to give his opinion as to how the needle got into appellant’s body. He (appellant) argues that the opinion was based upon surmise, conjecture and speculation and that such an opinion cannot be used to rebut the inference of negligence which arose under the doctrine of res ipsa loquitur. The needle was left in appellant’s abdomen during the operation by Dr. Olch in 1946. Dr. Olch testified that he did not know how the needle got into appellant’s abdomen; that in his opinion he did not leave the needle there; that he had no specific independent recollection of the operation in 1946. Counsel (Mr. Home) for Drs. Olch, Shulman and Freiden asked Dr. Olch as follows: “Do you have an opinion as to how the needle in this case got into the body of Mr. Bowers ? ’ ’ Dr. Olch answered: “Yes, I do. It got in in one of two ways, in my opinion.” Thereupon counsel for appellant said: “I object to this. It is a question for the jury to determine. It is incompetent, irrelevant and immaterial.” The judge said: “I don’t know how the jury is going to get inside that incision and see how it got there unless somebody tells them.” The objection was overruled, and Dr. Olch testified: “These laparotomy pads are put up in packages of six. They are put up in these packages in the supply room of the operating suite. We have an operating suite of nine

“Q. [By Mr. Home] Two people, you mean?

“A. [By Dr. Olch] Dr. Freiden usually passed to Dr. Shulman these sponges, and they are kept on this little Mayo tray where these needles are, and it is perfectly possible that as a sponge is quickly picked up and passed into the field it may have picked up a needle with it, and when the sponge is used to pack off intestines, left in the wound in that manner. ’ ’

It is agreed that under the doctrine of res ipsa loquitur plaintiff made a prima facie case against respondents, Drs. Olch and Shulman. Respondents argue that Dr. Olch gave his opinion, as an expert, that the needle got into the abdominal cavity in one of two ways; and that the opinion was admissible to rebut the inference of negligence raised by the doctrine of res ipsa loquitur. The doctor did not assert that he observed any occurrence or heard any statement or thing that would indicate that a needle did stick to a pad or was picked up by a sponge. He did not state any fact as a foundation for his opinion. His opinion was not based upon any occurrence during the preparation of the pads, or during the operation, from which an expert in surgery or otherwise could properly form an opinion that while packages of pads were being prepared in the supply room a needle actually did stick to a pad, and later the pad (with the needle adhering thereto) was placed in the abdominal cavity; or that a needle was picked up, during the operation, by a sponge

Said respondents (Drs. Olch and Shulman) also assert that in any event the evidence was sufficient to support the verdict on the theory that the jury found liability, but further found that plaintiff sustained no damage. They argue that there was substantial evidence that it was not necessary to remove the needle and that the needle in appellant’s body .was so encased in adhesions that it was harmless to plaintiff. (Testimony of Dr. Olch and other doctors called as witnesses by respondents.) Before the operation to remove the .needle was performed, it was not known whether the

Appellant also contends that the court erred in granting the motions for nonsuit by Dr. Freiden, the hospital and Miss Pearson. He argues that the doctrine of res ipsa loquitur was applicable as to them and that they should have been required to rebut the inference of negligence. He cites the case of Ybarra v. Spangard, 25 Cal.2d 486 [ 154 P.2d 687 , 162 A.L.R. 1258 ], and asserts that under the decision therein the said doctrine was applicable to all the defendants herein. In said Ybarra case the court said at page 491: ‘1 Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard.” Dr. Freiden assisted in the operation »as second assistant surgeon, and in that capacity he performed duties ordinarily performed by an intern. As resident surgeon at the hospital it was his duty to assign interns and assistant resident surgeons to their various duties, and it was also his duty to assist the attending physicians and to direct the care of patients on the clinic service. Dr. Olch testified that in performing the operation herein there were four persons “on the team” in a group around the operating table; the team consisted of himself, Dr. Shulman, Dr. Freiden and a nurse; they “worked as a team” in the operation on plaintiff; his first assistant assisted him in making a cut ; the sewing up inside and outside was done by him with

As to the applicability of said doctrine to the hospital, it appears, as above shown, that Dr. Freiden was employed by the hospital as resident surgeon and was paid by the hospital. A hospital is liable for the negligence of its employee in caring for a patient in the hospital. (See Cavero v. Franklin etc. Benevolent Soc., 36 Cal.2d 301 , 308 [ 223 P.2d 471 ].) The doctrine of res ipsa loquitur was applicable to the hospital herein.

As to Miss Pearson, it appears that she, as supervisor of the nine operating rooms, assigned two competent nurses to attend the operation, that she was not present at the operation or any other place with plaintiff, and she had no control or custody of plaintiff. The said doctrine was not applicable to her. Furthermore, she was acting as a supervising employee of the hospital in assigning the nurses and, under the circumstances here, she would not be liable by reason of the assignment. In Malloy v. Fong, 37 Cal.2d 356 , it was said at pages 378 and 379 [ 232 P.2d 241 ] : “The doctrine of respondeat superior is not applicable to the relationship between a supervisor and his subordinate employees. ... It is not the supervisor’s work that is being performed. . . . For these reasons, the law has shifted financial responsibility from the supervisor, who exercises immediate control, to the employer. . . . Section 2351 of the Civil Code codifies this principle and has been uniformly interpreted to exempt superior employees from vicarious liability to third persons for the tortious conduct of subordinates.” It was proper to grant Miss Pearson’s motion for a nonsuit.

Appellant also contends that the action against Dr. Freiden and the hospital was not barred by the statute of limitations, since the action was commenced within one year after appellant discovered that the needle had been left in his body. Those respondents (Dr. Freiden and the hospital) assert that the action was barred as to them one year, after June 25, 1946, the date the operation was performed by Dr. Olch. This action

With reference to the hospital, it appears that Dr. Freiden was its agent and that since the action was not barred as to him it would not be barred as to the hospital. In Costa v. Regents of the University of California, supra, the plaintiff received X-ray and other medical treatments at the University of California Hospital from two physicians who were employed by the hospital. The hospital was conducted under the authority of the regents of the university. The last time plaintiff therein went to the hospital for treatment by the two physicians was January 10, Í947. That action was commenced November 5,1948 (about 20 months after the last time plaintiff went to the hospital and physicians for treatment. Judgment in the trial court therein was in favor of the regents and the

By reason of the above conclusion that the motion for a nonsuit was properly granted as to Miss Pearson (the supervisor), it is not necessary to discuss the contention that the action as to her was also barred by the statute.

Appellant also contends that the court erred in striking out the testimony of Dr. Furnish to the effect that the established general practice in hospitals in this community in 1946 was that two nurses count simultaneously the sponges and instruments, which include needles. The motion of respondents to strike that testimony was made upon the ground that the witness was not qualified to testify on that subject. Dr. Furnish testified that he had practiced medicine and surgery in California since 1932, and since that time had performed an average of 400 or 500 major operations per year; in 1946 he was part owner of two hospitals, and was connected with the Bellevue, Alvarado, Suburban and Culver City Hospitals ; that he had performed operations in the following hospitals: Hollywood Presbyterian, Methodist, Queen of Angels and St. Vincent’s; he knew the praetice, with respect to counting needles, in the Methodist Hospital and St. Vincent’s Hospital but he did not know the practice in the following hospitals : Good Samaritan, California Lutheran, Hollywood Presbyterian, Queen of Angels, White Memorial or General. The

By reason of the above conclusions, it is not necessary to discuss other contentions on appeal.

The judgment (upon the verdict) as to defendants Dr. Olch and Dr. Shulman is reversed. The judgment of nonsuit as to Dr. Freiden and the Cedars of Lebanon Hospital is reversed. The judgment of nonsuit as to defendant Pearson is affirmed.

Shinn, P. J., and Vallée, J., concurred.

A petition for a rehearing was denied September 30, 1953, and respondents’ petition for a hearing by the Supreme Court was denied November 5, 1953. Edmonds, J., and Spence, J., were of the opinion that the petition should be granted.