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District Court of Appeal, First District, Division 2, California.

Grace T. LEONARD, Plaintiff and Appellant, v. WATSONVILLE COMMUNITY HOSPITAL, Doe One, Doe Two, Doe Three, Doe Four, G. M. Northrup, L. Slegel, and W. M. Lacy, Individually and doing business as Giverson, Lacy, Northrup & Slegel, a copartnership; E. H. Eiskamp, Kay Pogatsehnik and Jane Bishop, Defendants and Respondents.*

Civ. 16571.

Decided: January 03, 1956

Crist, Peters & Donegan, Elton F. Martin, Palo Alto, for appellant. Wyckoff, Parker, Boyle & Pope, Watsonville, for respondents Watsonville Community Hospital and Kay Pogatschnik. McCarthy & Franich, Watsonville, for respondent E. H. Eiskamp.

Plaintiff instituted an action for damages she suffered because during an operation a hemostat, a Kelly clamp six inches long, was left in her abdomen. She joined the following defendants relevant to this appeal: the Watsonville Community Hospital, where the operation took place, hereinfurther called the Hospital, Dr. Lacy whom she employed to perform the operation, Dr. Slegel and Dr. Eiskamp who took part in the surgery, Dr. Northrup the anesthetist and Kay Pogatschnik, the surgical nurse at the operation, hereinfurther called the nurse. At the close of plaintiff's case motions for nonsuit on behalf of Dr. Northrup, Dr. Eiskamp, the nurse and the Hospital were granted. The case was settled as to Dr. Lacy and Dr. Slegel and the jury was dismissed. The appeal is from the judgment of nonsuit as to Dr. Eiskamp, the nurse and the Hospital.

Plaintiff elicited the evidence of what happened at the operation solely from Doctors Lacy, Slegel and Eiskamp and from Mrs. Craig, superintendent of the Hospital, all heard as adverse witnesses under section 2055 of the Code of Civil Procedure. Their evidence was without conflict to the following effect: None of the physicians was an employee of the Hospital. The Hospital provided the operation room, the instruments and the nurse, who was its employee, and charged plaintiff therefor. Dr. Lacy engaged Dr. Slegel as surgical assistant and Dr. Northrup as anesthetist. The operation started as an exploratory laparotomy directed at plaintiff's gall bladder. The incision was therefore made in the upper right quadrant of the abdomen, the quadrant in which the forgotten Kelly clamp was later found. Dr. Lacy and Dr. Slegel found symptoms of disease of the gall bladder and before removing it showed it to Dr. Eiskamp, a more experienced surgeon, who happened to be in an adjoining room. He gave his opinion which was in accord with that of the other doctors, from visual inspection only, without touching the field of the operation. Dr. Eiskamp then left. Thereafter Dr. Lacy and Slegel by further exploration of the abdomen found a tumor on the sigmoid colon in the lower left quadrant of the abdomen. They again called Dr. Eiskamp who palpated the tumor and agreed with the other surgeons that it might be cancerous and that its removal was more urgent than that of the gall bladder. He agreed to help in it and left to scrub. (He did not expect and did not receive any compensation.) In the meantime Dr. Lacy extended the incision into the lower left quadrant of the abdomen. When Dr. Eiskamp returned he took part with Dr. Slegel in the preparation for the excision of the tumor in the lower left quadrant, whereas Dr. Lacy started to close the upper part of the incision. Dr. Lacy and Dr. Slegel testified that they both repeatedly inserted and removed Kelly clamps during the operation. Dr. Lacy testified that Dr. Eiskamp did not operate at all in the upper portion of the operative field. Dr. Eiskamp testified that he only used curved Mayo clamps, no Kelly clamps, and Dr. Lacy testified that he saw him use curved clamps only. Dr. Eiskamp left before the wound was finally closed. The nurse handed the surgeons instruments and sometimes took them back from them but was not asked to apply or remove any clamps and did not do so. Dr. Lacy and supervisor Mrs. Craig testified that it is the established practice that at an operation the nurses maintain a sponge and a needle count, but not an instrument count, that nurses are so taught during their training, and that the nurse was not instructed to maintain a count of clamps or other instruments, except needles.

If the above evidence, which is without conflict and in no way contradicted is believed there is evidently no basis for any responsibility of Dr. Eiskamp and there could only be responsibility of the Hospital and the nurse if contrary to the expert evidence as to the established practice they could be held under duty to count instruments used during an operation.

Appellant contends that under the rule of Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258, the doctrine of res ipsa loquitur applied to all defendants who had any control over the body of the unconscious plaintiff or the instrument which caused the injury and that they all had the burden of meeting the inference of negligence, that said inference of negligence was evidence for plaintiff in the case and that on a motion for nonsuit the testimony given under section 2055 of the Code of Civil Procedure could not be considered insofar as it was unfavorable to the inference. She further contends that apart from res ipsa loquitur, the evidence that no instrument count was made by the nurse should have gone to the jury on the issue of negligence.

There can be no doubt that the fact that a hemostat was left in plaintiff's abdomen called for the inference that somebody had been negligent. Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409; Bowers v. Olch, 120 Cal.App.2d 108, 260 P.2d 997; Armstrong v. Wallace, 8 Cal.App.2d 429, 47 P.2d 740, and that under the rule of the Ybarra case, supra, the three surgeons, who had performed the operation on plaintiff in which hemostats were used, at any rate were under duty to meet this inference. (We shall treat the problem with respect to the nurse and the Hospital hereafter.) The question is then whether the court had power to hold that as to defendant Eiskamp the inference had been dispelled as a matter of law, and to grant the motion for nonsuit.

The power of the court to grant a nonsuit or to direct a verdict is the same and the function of the trial court in both these respects is practically the same as that of an appellate court in reviewing the sufficiency of the evidence. In re Estate of Lances, 216 Cal. 397, 401, 14 P.2d 768. In Rose v. Melody Lane, 39 Cal.2d 481, 487, 247 P.2d 335, 338, the rule is stated that on appeal the inference of negligence under the doctrine of res ipsa loquitur ‘is sufficient to sustain a verdict against defendant unless it is overcome by plaintiff's own evidence (citations) or unless it is conclusively rebutted by evidence that is ‘clear, positive, uncontradicted, and of such a nature that it can not rationally be disbelieved’. (Citations.)' The evidence elicited from adverse witnesses under section 2055 of the Code of Civil Procedure is according to that section not binding on the plaintiff and can for our purpose not be considered as plaintiff's own evidence. Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 70, 77 P.2d 1059. The question remains whether the evidence of the defendants was “clear, positive, uncontradicted, and of such a nature that it can not rationally be disbelieved.” There is no doubt that it was clear, positive and uncontradicted and we see no rational ground on which it could be disbelieved. Notwithstanding the conflict in interest of the three surgeons their evidence was without any conflict, the evidence of Dr. Lacy and Dr. Slegel being clearly against their interest in pointing to their responsibility and disculpating Dr. Eiskamp. The fact that Dr. Eiskamp took part in only one specific part of the operation is made entirely probable by the fact that he was not scheduled to take part in the operation at all and agreed to help out only when an unexpected circumstance required the extension of the operation to a second distinct field. Under these circumstances we think that a verdict based on disregard of the evidence of the defendants could not be sustained under the rule that the trier of facts is not entitled to disregard uncontradicted entirely probable testimony of unimpeached witnesses, Mantonya v. Bratlie, 33 Cal.2d 120, 127, 199 P.2d 677, and that the court was entitled to take the case against Dr. Eiskamp from the jury.

Appellant relies on cases which hold that evidence produced under section 2055 of the Code of Civil Procedure cannot be weighed, as a matter of law, against the presumption of due care which attaches to a plaintiff who is unable to testify. The cases are not in point here because it is settled that res ipsa loquitur raises an inference, not a presumption, Burr v. Sherwin Williams Co., 42 Cal.2d 682, 688, 268 P.2d 1041, and because the rule as to the rebuttal of an inference as a matter of law differs from the one as to rebuttal of a presumption. In Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 70, 77 P.2d 1059, supra, the distinction is clearly pointed out to the effect that a presumption can only be so rebutted by evidence of the party relying on it whereas an inference can also be so rebutted by conclusive evidence of the opposite party. The latter rule is the one specifically applied to the res ipsa inference in Rose v. Melody Lane, supra. It is true that in the Burr case, supra, the Supreme Court also held that in all res ipsa loquitur cases the defendant must rebut the presumption and that if the inference of negligence is not met or balanced the judgment must be for the plaintiff, insofar giving the inference an effect ‘somewhat akin to that of a presumption.’ [42 Cal.2d 682, 268 P.2d 1044.] However, in Leet v. Union Pac. R. Co., 25 Cal.2d 605, 621–622, 155 P.2d 42, 51, 158 A.L.R. 1008, it was said: ‘There is no reason for applying a different test for determining when the inference is wholly dispelled as a matter of law in a case where res ipsa loquitur is applicable, than is used in the case of any other inference.’ As authority it cites Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 77 P.2d 1059, supra. We cannot say that the Burr case, supra, is necessarily inconsistent with the Leet case and the Rose case, supra, so that we would have to consider the latter cases overruled by implication. It is well conceivable that the res ipsa inference would require a judgment for plaintiff if no rebuttal was offered and that nevertheless it can be rebutted as a matter of law by clear, positive and uncontradicted evidence which cannot reasonably be doubted. Not only is the rule of the Rose and Leet cases binding on us, but the rule seems preferable in that it does not defeat appellate control over the rebuttal of the inference of res ipsa loquitur, to the same extent as the rule advocated by appellant. Especially in the cases under the Ybarra rule, where experience does not show the probability of negligence of any specific defendant, as is normally the case, and where successful rebuttal by some of the defendants must be expected, the normal appellate control over the sufficiency of the evidence seems desirable. The judgment of nonsuit as to Dr. Eiskamp should be affirmed.

With respect to the Hospital and the nurse it is not clear that the res ipsa inference applies. It cannot be said that common experience indicates that the leaving of a sizable instrument in an abdomen during an operation more probably than not indicates negligence of the surgical nurse, although such is undoubtedly the case as to the operating surgeons. The nurse is not permitted to practice surgery. Section 2726 Business and Professions Code. It would seem that the rule of the Ybarra case, which in the case of an unconscious patient subjects to the res ipsa inference all defendants who had any control over the body of the unconscious plaintiff or the instrument which caused the injury should not be indiscriminately applied in a case where the injury to the plaintiff clearly points to the responsibility of specific defendants. In the Ybarra case the patient after an abdominal operation was found to have received a traumatic injury to the nerves of a shoulder, which could have been caused by any form of undue pressure, so that the field of persons who could be responsible for the injury was as wide as the rule stated in that case. The rule of the Ybarra case is an exception to the normal rule that res ipsa loquitur only applies when it is apparent not only that the injury probably was the result of the negligence of someone but also that the defendant is probably the one who is responsible. Burr v. Sherwin Williams Co., supra, 42 Cal.2d at page 687, 268 P.2d 1041; Prosser, Res Ipsa Loquitur in California, 37 C.L.R. 196–201. The exception was justified in the Ybarra case, because otherwise ‘there will rarely be any compensation for patients injured while unconscious'. 25 Cal.2d at page 493, 154 P.2d at page 691. There is no such danger and no need for such exception where the cause of the injury clearly points to the responsibility of one or more specific defendants, here the surgeons. But at any rate even if it could be said that the surgical nurse as a member of the ‘team’ may have taken part in the actual application and removal of instruments, her possible responsibility in that respect would have been rebutted as conclusively as has that of Dr. Eiskamp.

The only specific basis suggested for responsibility of the nurse, and for the Hospital as her employer and as having power to give her instructions, is the fact that she was not instructed by the Hospital to take and did not on her own initiative take a count of the instruments. Clearly there is here no room for any inference as to what happened because the facts were conclusively shown by the evidence stated and as to the existence or non-existence of a duty to take such a count res ipsa cannot give any indication. The only question to be decided in this respect is whether the issue of negligence in the failure to take said instrument count could be decided by the jury without any expert evidence having been offered in support of the contention of negligence. It would seem that at least insofar as the functions of a hospital and a nurse are medical in character the same rules as to proof of malpractice apply as to physicians and surgeons. In Valentin v. La Societe Francaise, 76 Cal.App.2d 1, 5, 172 P.2d 359, 362, it is said: ‘Malpractice is the neglect of a physician or a nurse to apply that degree of skill and learning in treating a patient which is customarily applied in treating and caring for the sick or wounded similarly suffering in the same community. (Citations.) While proof of it is customarily made by the testimony of experts (citations), and while the law makes allowances for human weakness in the application of skill and learning (citation), the facts of each case must be judged according to their own merits. If the alleged neglect relates to matters or conduct which are reasonably within the ken of the average layman the jury may determine the culpability of the person charged therewith without the aid of experts. If it relates solely to the exercise of judgment in the application of skill and learning then proof of the negligence must be made by experts.’ It has also been said: “‘The extent and character of the care that a hospital owes its patients depends on the circumstances of each particular case. A private hospital owes its patients the duty of protection, and must exercise such reasonable care toward a patient as his known condition may require. The measure of duty of a hospital is to exercise that degree of care, skill, and diligence used by hospitals generally in that community, and required by the express or implied contract of the undertaking.”’ Rice v. California Lutheran Hospital, 27 Cal.2d 296, 299, 163 P.2d 860, 862. The fact that hospitals and nurses render also many services of a nonmedical and more domestic character will cause more divergence in the rules applicable to them than is the case with doctors, but to their purely medical functions not reasonably within the ken of the average layman the rule applies that the hospital is to exercise the degree of care, skill and diligence used by hospitals generally in the community and that the proof of lack of such care can only be made by experts. We have no doubt that the function of a surgical nurse in the operation room especially her alleged duty to check the care of the surgeons as to the removal of instruments is completely outside the knowledge of laymen and can only be proved by expert evidence. There was no expert evidence whatever in support of such duty, only evidence to the contrary. As with respect to the Hospital and nurse a res ipsa inference had either never been in the case or had been conclusively dispelled and no admissible evidence of negligence was offered; the nonsuit was correctly granted.

Judgment affirmed.

NOURSE, Presiding Justice.

DOOLING and KAUFMAN, JJ., concur.

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