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

Erika MEIER and Robert J. Meier, an infant, and Patricia E. Meier, an infant, by their guardian ad litem Erika Meier, Plaintiffs and Appellants, v. ROSS GENERAL HOSPITAL, a corporation, and J.M. Stubblebine, Defendants and Respondents.

Civ. 23622.

Decided: April 12, 1968

Buresh, Garety, Vallarino & Costamagna, John G. Buresh, San Rafael, for appellants. Spridgen, Moskowitz, Barrett & Achor, Santa Rosa, for respondent Ross General Hospital. Bledsoe, Smith, Cathcart, Johnson & Rogers, Robert A. Seligson, San Francisco, for respondent James M. Stubblebine, M.D.

In this wrongful death action, the widow and two minor children of Kurt Meier, deceased, appeal following a jury verdict in favor of the defendants, James M. Stubblebine, M.D. and Ross General Hospital, a corporation.

On July 5, 1962, about 9:45 p.m., Meier severely lacerated his left wrist with a sharp instrument in an attempt to commit suicide.   He was given emergency hospital treatment and referred by his family physician to Dr. Stubblebine for psychiatric treatment.   On Friday, July 6, about 6:00 p.m., he was admitted to Ross General Hospital.

Dr. Stubblebine was an officer of the defendant hospital and in charge of the newly constructed psychiatric wing.   He is charged with negligence in this capacity as well as in his capacity as the decedent's physician.   Appellants do not question his professional qualifications and therefore we do not recite them here.

His diagnosis was that Meier was suffering from a psychotic depressive reaction in an involutional male.

The psychiatric wing is a two-story structure and Meier was assigned to Room 202, on the second floor.   On July 13, about 1:00 p.m., he jumped out of the window of his room to the pavement below, landing on his head and dying almost immediately.

Under the heading, “General Nature of the Case,” appellants state:  “The defendants were generally charged with negligence in permitting and allowing the decedent, mental patient Kurt Meier, to fall or jump from a second floor window to the pavement causing his death;  or conversely, for failing to take reasonable measures to prevent the decedent from doing harm to himself.”

Respondents' general defense is based upon the contention that the psychiatric wing was designed and constructed to comport with the “open door policy,” now considered to be best for psychiatric patients with suicidal tendencies.

Under this concept a psychiatric hospital or wing is so constructed as to eliminate barred windows, locked doors, and other types of fixed restraints to the end that the surroundings are as homelike as possible.

The type of windows installed in the psychiatric wing are the same as those in the rest of the hospital.   They are of a type which open by cranking.   On the interior is a light screen.   The window can only be operated by use of the crank.   The crank can be removed by removing one screw.

Under the “open door policy” ambulatory patients are allowed to roam about at will, engage in group therapy activities, eat together, and in general to eliminate as much of an atmosphere of restraint as is possible.

The jury arguments were not made a part of the record on appeal, but appellants state that the respective general positions taken by the parties at trial were as follows:

“The plaintiffs argued [to the jury] that the failure to secure the window or otherwise guard or restrain the decedent was within their province as reasonably intelligent people to weigh and assess and that they were competent to pass on the negligence and carelessness involved.   That in brief while a cure from the psychotic depression was not guaranteed at least ordinary horse sense would dictate that if such a patient is left ambulatory and unrestrained then the obvious means at hand by which he could destroy himself should, in the exercise of ordinary care, be removed or secured.

“The defense argument, by both counsel, emphasized the trends of modern medicine and particularly the advances in healing the mentally ill, and the ‘open door’ policy in modern psychiatric hospitals.”

Issue:  Should the brochure of the manufacturer of a drug prescribed for decedent have been admitted in evidence?

During his cross-examination by appellants' counsel, Dr. Stubblebine testified that he had prescribed “Mallaril,” a phenothiazine drug used as a tranquilizer and for the relief of agitation and restlessness.   Without attempting to lay any foundation, counsel then offered in evidence what he stated was “a publication put out by the manufacturer” of Mallaril.   Respondents' objection was sustained.

 The “publication” was not further identified nor did counsel ask that it be marked for identification.   We do not know what it contains nor do we know whether all or only portions of it were being offered.   No offer of proof was made.   As appellants admit, “the record is not clear as to what was offered.  * * * ”   We are hardly in a position to consider the point.  (See Paulin v. Paulin, 39 Cal.App.2d 180, 184–185, 102 P.2d 809.)

Moreover, it would appear that appellants' counsel accomplished his purpose by the following question and answer:  “Q. Do you know whether or not the manufacturer of mallaril says it is contra-indicated in severely depressed patients?   A. [By Dr. Stubblebine] I don't know that it says that or doesn't.   I wouldn't be surprised it says that.   All phenothiazine drugs like this sometimes should not be used in severe cases of depression.”

 Thus, it is clear that Dr. Stubblebine had notice, regardless of the source, that Mallaril could be harmful to severely depressed patients.

Issue:  Was it error to instruct the jury as to the evidence from which to learn the standard of medical conduct?

Appellants contend that it was error to instruct the jury as follows:  “In determining whether defendant's [Stubblebine's] learning, skill and medical conduct fulfill[ed] the duties imposed upon him by law, as they have been stated to you, you are not permitted to set up arbitrarily, a standard of your own.   The standard was set by the learning, skill and care ordinarily possessed and practiced by others of the same profession in good standing, in the same or a similar locality and under similar circumstances at the same time.   It follows, therefore, that the only way you may properly learn that standard is through evidence presented in this trial by physicians and surgeons called as expert witnesses.”  (Emphasis added.)

This instruction is adapted from BAJI 214–B (Revised).   The word “medical” was deliberately inserted by the court before the word “conduct” for the reason that Dr. Stubblebine was charged with negligence on two bases, one, in his capacity as the treating psychiatrist for the decedent and, two, in his capacity as the officer of defendant hospital in charge of its psychiatric wing.

The objective of the inserted word was to keep clear in the jury's mind the distinction between the two separate theories of liability asserted against Dr. Stubblebine.

Appellants now argue on appeal that it was improper to instruct the jury to look to the testimony of the expert witnesses in learning the standard of medical care to which Dr. Stubblebine should be held under the circumstances.   Appellants' brief on appeal states:  “No question at all is made in this case that the medical efforts were wrong.”

We now examine the record as it was at the trial level.   The complaint charges “the defendants, and each of them,” with ten specifications of negligence, one of which is:  “In then and there failing to provide said KURT MEIER proper medical care and treatment.”   Appellants' pretrial statement lists the issues as follows:  “(1) Negligence of defendant Hospital;  (2) Negligence of defendant J.M. STUBBLEBINE, M.D.  (3) Damages.”   The pretrial order states that “the issues are therefore simply negligence and proximate cause * * * and the amount of damages if liability is established.”

Turning now to the reporter's transcript of the trial proceedings, we find that appellants' counsel cross-examined Dr. Stubblebine at great length on the feasibility of the “open unit” policy in the instant case, as distinguished from the use of physical restraint or constant supervision by an attendant.   He also inquired at length into the propriety of the drugs prescribed and used.   He definitely indicated by his questions that he intended to contend that decedent was not given sufficient drugs to keep him immobilized.

Counsel also probed into other matters in a manner completely inconsistent with his present disclaimer of any medical malpractice theory.   For example, he brought out that depressions may be caused by a brain tumor or lesion but that no X-rays of decedent's head were taken.

The closing jury arguments of respective counsel are not included in the record and we cannot determine whether appellants' counsel did or did not tell the jury what he is now telling this appellate court, to wit:  “There was not one shred of evidence in the case suggesting any error in diagnosis and medical treatment.”

 On the record before us it appears clear that the trial court was required to and did give proper instructions on the standard of medical care owed by a medical practitioner to his patient.   Such instructions properly included BAJI 214–A (Revised).1

Issue:  Was it error to instruct the jury on the liability of a physician for routine matters performed by a nurse in his absence?

Appellants next complaint that the following instruction should not have been given because it does not apply to any issue raised by them:  “A physician is not responsible for routine matters performed in his absence by a nurse not selected by him but employed by the hospital in which his patient is being treated.”

However, appellants did raise the issue by alleging in their complaint that “the defendants and each of them,” were negligent in “failing to exercise proper supervision over said KURT MEIER.‘’   This allegation seeks to impose liability upon Dr. Stubblebine, in addition to the defendant hospital, for failure of a nurse employed by the hospital to exercise proper supervision over the decedent, even though such failure is with respect to the performance of routine matters.

 Appellants do not contend that the instruction does not correctly state the law.   Furthermore, we cannot see how they were harmed by it.   The verdict of the jury in favor of the hospital necessarily implies a finding that the nurses employed by it were not negligent in their care of the decedent.

Issue:  Was it error to instruct on the California Administrative Code?

Appellants next criticize the giving of the following instruction, based upon section 423, title 17, of the California Administrative Code:  “All rooms approved for housing of patients shall be provided with light and ventilation by reason of windows having an area equal to one-eighth of the total floor area and one-half of which shall be openable.   All other portions of the hospital building * * * ” (Deleted because not applicable.)

Appellants say that “There was no question made at trial, directly or indirectly, concerning any failure of the windows to measure up to legal standards” and that the instruction “tends to have the State of California throw an official mantle of approval over the window system of this defendant Hospital.”

This is not so.   The instruction merely had reference to what the law required with respect to the construction and maintenance of windows in a patient's hospital room.   Appellants went to great lengths to inquire into what type of security attachments could have been added to and incorporated in the construction of the windows.   The jury also had before it for consideration the argument that the windows could be kept in a fixed position, either entirely or partially closed, by removing the crank which operated them.

 The complained of instruction in no way restricted appellants' attempt to prove the issue raised in their complaint, namely, that defendants were negligent “In then and there failing to take reasonable precautions to so secure the windows so as to contain an inmate within the confines of the hospital.”

Issue:  Was it error to instruct on the nonliability of the hospital for the conduct of Dr. Stubblebine while acting in his capacity as the decedent's private physician?

This criticism of appellants arises from the giving of the following instructions:  “The defendant Dr. Stubblebine was an agent of the defendant Ross General Hospital in his capacity as Director of the Psychiatric Service of the defendant hospital.   His acts and omissions while acting in this capacity are in contemplation of law the acts and omissions of the defendant hospital.

“The defendant Dr. Stubblebine was also the private physician of the decedent Kurt Meier.   The defendant Ross General Hospital is not responsible for the defendant Dr. Stubblebine's conduct acting in his capacity as the decedent's private physician, and the defendant hospital may not be held liable for such conduct of the defendant Dr. Stubblebine while acting in this capacity.”  (Emphasis ours.)

Appellants argue that “the instruction, to the average jury, says that the Hospital was not responsible for any negligence of defendant Stubblebine if such negligence occurred while [i.e., during the period] he was the private physician of the decedent.”

 The point is without merit.   No reasonable jury could ever possibly so interpret these instructions.

Issue:  Was it error to instruct the jury on a physician's liability for choosing an alternative method of treatment?

The final instruction complained of by appellants is as follows:  “A physician is not liable in malpractice merely because if he had done something different than he did do the bad result would not have taken place or because some other physician would have handled the case differently, even if such different handling might have avoided the bad result that did in fact occur.”

Appellants state that “This is another example of a proper instruction only in a case where a physician is faced with alternative methods of treatment.”

There were three alternative methods of treatment, physical restraint, constant supervision, and chemo-therapy in combination with the open unit policy.

 Although, on appeal, appellants disclaim any criticism of the third method as distinguished from the second, this is not at all clear from the trial record.   The trial court was therefore justified in covering this point in its instructions.

Issue:  Is the evidence sufficient to support the verdict?

Appellants touch upon this point briefly.   As noted above, they say “There was not one shred of evidence in the case suggesting any error in diagnosis or medical treatment” and “No question at all is made in this case that the medical efforts were wrong.”

The use of the “open door policy” was part of the treatment.   This course of treatment eliminated physical restraint and the constant attendance of a custodian.

The course of treatment followed necessarily involved a calculated risk that the patient might harm himself.   Appellants suggest that the window crank could have been removed by simply removing the screw that held it in place.   However, every time it was desired to open or close the window for ventilation purposes, it would be necessary to screw the crank back in place.   This would be observed by the patient and he would recognize its purpose.

Such a procedure would be an obvious sign to the patient that those treating and attending him were using a form of restraint and were fearful that he might harm himself.   This is exactly what was not desired.

 Certainly, it cannot be said as a matter of law in this case that respondents were guilty of negligence.

Issue:  Should appellants be allowed to raise an additional instruction point some nine months after the filing of their closing brief?

Appellants proposed the following instruction, which is in the exact wording of BAJI 206–A (Revised), to be given as a part of the instructions on res ipsa loquitur:

“One of the question for you to decide in this case is whether the accident involved occurred under the following conditions:  First, that it is the kind of accident which ordinarily does not occur in the absence of someone's negligence;  Second, that it was caused by an agency or instrumentality in the exclusive control of the defendants;  and Third, that the accident was not due to any voluntary action or contribution on the part of the plaintiffs.  [“Decedent” was substituted for “plaintiffs” by the court.]   If, and only in the event that you should find all these conditions to exist, you are instructed as follows:”

 The above instruction was given in substantially the wording requested.   The following instruction requested by appellants was not given:  “A plaintiff may properly rely on res ipsa loquitur although he has participated in events leading to the accident if the evidence excludes his conduct as the responsible cause.”

Under Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 247 P.2d 344, this requested instruction correctly stated the law.  (See particularly [8] and [9], pp. 444–445.)   It is difficult to understand why the trial court's refusal to give the requested explanatory instruction, quoted above, was not added to the numerous instruction points made by appellants in their briefs on appeal.

Now, however, appellants declare under date of March 12, 1968 that “a rare and unique legal situation has presented itself” in that on October 10, 1967 our Supreme Court decided Vistica v. Presbyterian Hospital, 67 A.C. 468, 62 Cal.Rptr. 577, 432 P.2d 193.  (This superseded the opinion of the Court of Appeal.)

This is not a situation where the case law existing at the time of trial is thereafter changed during the pendency of an appeal.  (Compare the situation in Rayner v. Ramirez (1958) 159 Cal.App.2d 372, 324 P.2d 83, when Parker v. Womack (1951) 37 Cal.2d 116, 230 P.2d 823 was overruled by Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1.)  Here, however, as appellants state:  “[T]he Supreme Court, in Vistica, did not change the law but merely clarified what it already was.”

Appellants' opening brief in the instant case was filed on September 15, 1966, prior to the Court of Appeal decision in the Vistica case.   The latter could not therefore have had any bearing on appellants' failure at that time to raise the point now under discussion.

The opinion of the Court of Appeal in Vistica was filed on March 23, 1967.  (249 A.C.A. 768, 57 Cal.Rptr. 793.)   It was cited in the respondent hospital's brief, which was filed on April 3, 1967.

In said opinion it is stated:  “It has been said that a party may rely upon the doctrine of res ipsa loquitur even though he has participated in the events leading up to the accident, if the evidence excludes his conduct as the responsible cause.  [Citations.]   If Lorraine [decedent] was so mentally ill as to be devoid of all reason, she could not be guilty * * * of her own death, or have been its responsible cause.   Thus we return again to the factual question of Lorraine's mental state immediately before her death.”  (Emphasis added.)

Then, following discussion of the facts, the opinion states:  “We see no error in the court's res ipsa instruction.”  (The Supreme Court held to the contrary).

However, it is clear from its opinion that, under more extreme facts, the Court of Appeal might well have reached a contrary result.   In other words, the Court of Appeal recognized the basic rule that an explanatory instruction is proper under certain facts or circumstances.

The significance of this is that appellants, who contend that the instant facts are more extreme than those in Vistica, were reminded that the point now under discussion was at least arguable even under the opinion of the Court of Appeal.

Instead, appellants apparently considered the Vistica opinion of March 23, 1967 as final, even though the Supreme Court had 60 days thereafter within which to grant a hearing.   On May 17, 1967 such hearing was granted.

On June 21, 1967 appellants filed their closing brief herein.   They quoted the following portion of the Vistica opinion:  “There can be no doubt at all that, on our record, a verdict in favor of appellants would have been fully supported by the evidence.”

From this language, appellants argued:  “By analogy a verdict in favor of the Appellants here would be fully supported by the evidence and therefore the errors complained of resulted in prejudice and a miscarriage of justice.”

Finally, appellants offer no explanation for waiting from the date of the Supreme Court's decision, October 10, 1967, to March 13, 1968 to make application to us to raise this new issue.  (The appeal herein was on the oral argument calendar on April 8, 1968.)

Numerous cases discuss the impropriety of raising points for the first time in appellant's reply brief.  (See 3 Witkin, Calif.Procedure, Appeal § 155, pp. 2341–2342;  4 Cal.Jur.2d, Appeal and Error § 488, p. 324;  West's California Digest, Appeal and Error 762.)

 The rule is well settled that a point raised in the reply brief will not be considered unless good reason is shown for failure to present it before.   No such showing has been made here.

We think that the situation is even more aggravated where, as here, appellants delay making the new point until shortly before oral argument.   We therefore refuse to consider it in our opinion.

Judgment affirmed.


1.   This instruction is criticized by appellants for the same reasons as those directed to BAJI 214–B (Revised).   It was given as follows:“The law does not condemn a physician simply because his efforts prove unsuccessful.   No practitioner can guarantee results.“Where there is more than one recognized method of diagnosis or treatment and no one of them is used exclusively and uniformly by all practitioners of good standing, a physician and surgeon is not negligent if, in exercising his best judgment, he selects one of the approved methods, which later turns out to be a wrong selection, or one not favored by certain other practitioners. “It is quite possible for a physician and surgeon to err in judgment, or to be unsuccessful in his treatment, or to disagree with others of his profession, without being negligent.“On the other hand, if a physician and surgeon does not possess that degree of learning and skill ordinarily possessed by physicians and surgeons of good standing practicing in the same circumstances or if he fails to exercise the care ordinarily exercised by reputable members of his profession in the same or a similar locality and under similar circumstances it is no defense to a charge of negligence that he did the best he could.”

AGEE, Associate Justice.

SHOEMAKER, P.J., and TAYLOR, J., concur.