Traxler v. Varady

Deficiency Syndrome (AIDS), the human immunodeficiency vims (HIV) had been identified and the risk of infection through blood transfusion discovered. Unable to regain her health, appellant seeks damages from defendants Robert Varady, M.D., James C. Heinrich, M.D., Chris Cammisa, M.D., Fairfield Medical Group, Inc., and NorthBay Medical Center (hereinafter, hospital) alleging that various negligent acts had caused her to receive the HIV-tainted blood transfusion. She appeals from a judgment in favor of all defendants, contending that the court erred by refusing to give requested jury instructions on negligence per se, informed consent and battery.

Facts

After a normal pregnancy under the care of Dr. Chris Cammisa, appellant was admitted to NorthBay Medical Center where Dr. Robert Varady delivered her baby. Since this was Dr. Varady’s first delivery at the NorthBay Medical Center, Dr. James Heinrich was designated as his “proctor.” After appellant gave birth to a normal baby girl by vaginal delivery, Dr. Varady examined the placenta and concluded that it was intact, meaning that no significant amount of placental tissue had been retained in the utems.

Two weeks later, appellant began severe hemorrhaging, was mshed to the hospital and signed a consent form authorizing a dilatation and curettage procedure (D&C).^[1] Dr. Cammisa estimated that appellant had already lost approximately two pints of blood and suspected that a blood transfiision might be necessary. He ordered two units of blood to be held for appellant. Dr. Cammisa then performed the D&C and removed some “necrotic-appearing tissue.” Unexpectedly, appellant continued to hemorrhage. After consulting with Dr. Heinrich, Dr. Cammisa placed appellant under general anesthesia and performed a second D&C. Only a few blood clots, which did not explain why appellant continued to hemorrhage, were found.

In the recovery room Dr. Heinrich evaluated appellant’s condition. Her total documented blood loss during this period comprised approximately 30-40 percent of her total blood volume. His primary concern was that she could hemorrhage again at anytime. Renewed hemorrhaging had occurred in

approximately 10 percent of his postpartum hemorrhage cases. If she were to bleed again, an emergency hysterectomy would probably have to be performed. Dr. Heinrich was concerned that in her weakened condition appellant could not tolerate such a procedure and there would not be enough time to transfuse her if she rehemorrhaged. In his judgment, appellant’s mental state was still compromised by the anesthesia and other medication she had been given, including Valium and codeine. After conferring with Dr. Cammisa, who concurred with his assessment, Dr. Heinrich ordered that appellant receive two units of blood.

In 1988, after being notified by the Irwin Memorial Blood Bank that she might have received HIV-infected blood, appellant tested positive for the presence of the HIV virus. It was undisputed at trial that in 1982 the HIV virus had not yet been identified and that the risk of receiving HIV-tainted blood through a transfusion was unknown.

Appellant’s theory of liability was that Dr. Varady negligently performed the delivery by failing to ensure that no placental tissue was retained; that his negligence caused her to hemorrhage. She further alleged that Dr. Heinrich ordered an unnecessary transfusion, to which she did not give her informed consent. A unanimous jury found no negligence on the part of any of the defendants.

Analysis

Appellant contends the trial court erred in refusing to give her requested instruction on “negligence per se.”

Appellant’s requested instruction read as follows: “If you find that a party to this action violated Title 22, California [Code of Regulations] Sections 70213(a) and (d); 70231; 70233; 70235; 70703 ; 70706; 70706.2; 70707; 70747; 70749; 70751 (a)(h) and 70753,[^[2] ] the Statutes and code sections just read to you, and that such a violation was a legal cause of injury to another, you will find that such violation was negligence unless such party proves by a preponderance of the evidence that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. In order to sustain such burden of proof, such party must prove by a preponderance of the evidence that he was faced with circumstances which prevented compliance or justified noncompliance with the statutes and codes.”

Appellant has abandoned any claim of error as to most of the subdivisions of title 22 listed in her proposed instruction. She now contends only that the court should have given her requested negligence per se instruction with respect to title 22, section 70223, subdivision (g), and section 70707.^[3]

A—Section 70223, Subdivision (g)

We conclude that the trial court correctly refused to give appellant’s requested instruction on section 70223, subdivision (g), because the elements set forth in Evidence Code section 669, defining when an alleged violation of statute or regulation supports a presumption of negligence per se, were not supported by the evidence.^[4]

Section 669 of the Evidence Code provides that: “(a) The failure of a person to exercise due care is presumed if: (1) He violated a. . . regulation of a public entity; (2) The violation proximately caused death or injury. . . ; (3) The death or injury resulted from an occurrence of the nature which the . . . regulation was designed to prevent; and (4) The person suffering the death or injury to his person . . . was one of the class of persons for whose protection the . . . regulation was adopted.” The burden is on the proponent of a negligence per se instruction to démonstrate that these elements are met. (Ronald M. v. White (1980) 112 Cal.App.3d 473 , 477 [ 169 Cal.Rptr. 370 ].) The first and second elements of section 669, although normally questions of fact for the jury, may be resolved by the court as a matter of law where reasonable minds could not differ as to whether a violation of the regulation actually occurred or whether the violation proximately caused the plaintiff’s injuries. (Capolungo v. Bondi (1986) 179 Cal.App.3d 346 , 354 [ 224 Cal.Rptr. 326 ]; Horn v. Oh (1983) 147 Cal.App.3d 1094 , 1101-1102 [ 195 Cal.Rptr. 720 ].) The third and fourth elements of Evidence Code section 669 must be determined by the court as a matter of law.

Section 70223, subdivision (g), of title 22 provides, in part, that “All anatomical parts, tissues and foreign objects removed by operation shall be delivered to a pathologist designated by the hospital and a report of his

findings shall be filed in the patient’s medical record.” The trial court granted the hospital’s motion for summary adjudication as to this regulation based in part on the conclusion that “Failure to send tissue removed during [appellant’s] dilation and curettement to the pathologist for examination did not cause plaintiff’s injury, e.g., exposure to the HIV virus.” In opposition to the hospital’s motion for summary adjudication, appellant offered no evidence that, if all the tissue removed during the two D&C’s had been sent to a pathologist for examination, she would not have required a blood transfusion. The decision to order a blood transfusion was independent of the presence or absence of any pathology finding. Dr. Heinrich ordered the transfusion because appellant had lost a great deal of blood and in his judgment she was at risk if she began to hemorrhage again. Appellant failed to demonstrate how Dr. Heinrich’s decision, made shortly following the surgery, could in any way have been affected by a subsequent pathology report. The pathology report, at best, might have offered some explanation for the cause of her bleeding but it could not have prevented her prior hemorrhaging or reduce the chances of her rehemorrahaging, which in turn necessitated the blood transfusion. Because of the total absence of any causal relationship between the decision to give appellant a transfusion and the alleged failure to send any or all of the tissue removed during the D&C operations to the pathology lab, the court correctly determined that, as a matter of law, the alleged violation of section 70223, subdivision (g), did not proximately cause appellant’s injury.^[5] (See Capolungo v. Bondi, supra, 179 Cal.App.3d at p. 354.)

Although conceding that “the failure to send the tissue to pathology certainly did not cause appellant to become infected," appellant argues that the evidence supports the inference that Drs. Cammisa and Varady violated section 70223 by failing to send all the tissue they removed in the first D&C procedure to pathology. She alleges this failure to have all the tissue examined by a pathologist prevented “appellant from proving that Dr. Varady’s negligence in the delivery of the placenta [following childbirth] was the first link in the chain of [her] infection.” In other words, appellant argues that she should have been permitted to prove Drs. Varady’s and Cammisa’s alleged violation of section 70223 and have the jury instructed on negligence per se in support of her contention that they concealed proof of Dr. Varady’s primary negligence in the delivery of appellant’s daughter.

Putting aside the very substantial question whether spoliation of evidence is the type of injury section 70223 is designed to prevent, the issue is waived

Section 70707 provides, in pertinent part, that the hospital must adopt and post a policy on patients’ rights. The posted list “shall include but not be limited to the patients’ rights to: . . . HQ (4) Receive information about the illness, the course of treatment and prospects for recovery in terms that the patient can understand. HQ (5) Receive as much information about any proposed treatment or procedure as the patient may need in order to give informed consent or to refuse this course of treatment. Except in emergencies, this information shall include a description of the procedure or treatment, the medically significant risks involved in this treatment, alternate courses of treatment or nontreatment and the risks involved in each and to know the name of the person who will carry out the procedure or treatment. . „ .” Subdivision (d) provides that “[a]ll hospital personnel shall observe these patients’ rights.’’

Appellant again fails to demonstrate that she was prejudiced by the failure to give a “negligence per se" instruction based on this section. Section 70707 requires nothing more than that the patient’s informed consent be obtained. The section does not offer a definition of the term “informed consent" that differs in any significant respect with the common law. In Cobbs v. Grant (1972) 8 Cal.3d 229 [ 104 Cal.Rptr. 505 , 502 P.2d 1 ], the leading case defining the scope of a physician’s duty to obtain the patient’s informed consent, the court held that “there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." (Id. at p. 243.) The court further held that the duty to make such disclosure is excused when an emergency exists, or when the patient is incompetent. (Ibid.) We are unable to discern any significant respect in which the standard set forth in section 70707 differs from the common law standard.

The jury was fully instructed on the common law duty to obtain a patient’s informed consent, and what constitutes an emergency, excusing the performance of this duty. By its unanimous verdict, the jury concluded that appellant either gave informed consent or her consent was implied under the circumstances. Thus, refusing to give the requested instruction, if error, was harmless. It is not reasonably probable that the result would have been different had the requested instruction been given.^[6] (See Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512 , 523-524 [ 196 Cal.Rptr. 82 ].)

(1951) 37 Cal.2d 522 , 525 [ 233 P.2d 1 ]; Kraft v. Nemeth (1952) 115 Cal.App.2d 50 , 54 [ 251 P.2d 355 ]; Johns v. Ward (1959) 170 Cal.App.2d 780 , 789 [ 339 P.2d 926 ].) Nor is it error to refuse an instruction excerpting specific language from an opinion if the principle expressed by the excerpted language is encompassed by the more general instruction already given. (Sloan v. Steams (1955) 137 Cal.App.2d 289 , 299-300 [ 290 P.2d 382 ].)

Finally, appellant contends that the court erred by refusing to instruct the jury on the tort of battery.

Appellant contends she had a cause of action for battery based on her contentions that her written consent to the D&C and “any other therapeutic procedure that (his) (their) judgment may dictate to be advisable for the patient’s well being” did not include consent to the transfusion, and her consent to the transfusion could not be implied because no emergency or other circumstance existed excusing the treating physicians from obtaining a separate consent to the blood transfusion.

In Cobbs v. Grant, supra, 8 Cal.3d 229 , the court explained that: “The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.” (Id. at p. 240.)^[7]

Respondents contend that appellant’s cause of action lay only in negligence. In Cobbs the court explained that when the physician obtains a patient’s consent and some undisclosed complication with a low probability of occurrence develops, the patient’s cause of action lies in negligence only. (Cobbs v. Grant, supra, 8 Cal.3d at page 240-241.) Respondents argue that the attending physicians obtained appellant’s consent to the D&C and that the continued hemorrhaging which led to the transfusion was, at worst, an undisclosed complication. This argument certainly applies to the hemorrhaging, but begs the question whether the transfusion was a second procedure outside the scope of the patient’s original consent.