SCHULTZ SCHULTZ v. MUTCH

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Court of Appeal, Second District, Division 7, California.

Christopher Alan SCHULTZ, a Minor, By and Through Alan R. SCHULTZ, his Guardian Ad Litem, Plaintiff and Respondent, v. Joseph A. MUTCH, M.D., Defendant and Appellant.

B001284.

Decided: February 27, 1985

David M. Harney, James J. Pagliuso, Los Angeles, for plaintiff and respondent. Thelen, Marrin, Johnson & Bridges, Curtis A. Cole, Michael N. Alexander, and Douglas B. Voiles, Los Angeles, for defendant and appellant.

Appellant Joseph A. Mutch, M.D. appeals from a jury verdict finding him liable for injuries suffered by minor respondent Christopher Alan Schultz and from an order conditionally granting the minor plaintiff a new trial on the issue of damages only.   Defendant Mutch's assignments of error principally concern the following:  (1) instruction to the jury on the law of agency governing a physician's respondeat superior liability for acts and omissions of nurses;  (2) instruction to the jury on the applicable principles of negligence and causation;  (3) relief of the minor plaintiff from admissions in discovery made by his parents;  and (4) the trial court's imposition of an additur.   As will be elaborated below, we reject each of these contentions, affirm the judgment as to liability and remand the case for retrial on the issue of damages.

I. Statement of Facts

Plaintiff Christopher Schultz, a child of plaintiffs Marcia Schultz and Alan Schultz, was born a retarded, quadraplegic on December 19, 1977, due to certain acts of negligence committed by defendant Mutch, Roberts Medical Group (hereinafter medical group), Verdugo Hills Hospital (hereinafter hospital), where the birth took place, and various nonparty nurses.   Before trial the hospital settled claims against it for $850,000, and prior to verdict defendant medical group settled for $500,000, thereby leaving Dr. Mutch as the only defendant whose fate would be decided by the jury.

Essentially the facts leading up to Christopher Schultz' tragedy, viewed most favorably to the verdict, are the following.   Mrs. Schultz' pregnancy with Christopher was uneventful, and by all indications Christopher was going to be born normal and healthy.   Mrs. Schultz went into labor on the evening of December 18, 1977.   After her husband spoke with defendant Mutch, her regular physician from the medical group being unavailable, she went to Verdugo Hills Hospital, where she arrived at about 11:30 p.m.   In the labor room she was attached to a fetal monitor with external electrodes and then examined by Nurse Huizinga, who determined the baby was presenting itself headfirst and so informed defendant.   Shortly thereafter, at about 12:05 a.m. defendant also examined Mrs. Schultz but could not determine whether the baby was head or breech first.   He therefore ordered that Mrs. Schultz be sent to X-ray to resolve his uncertainty.1  She was then detached from the external monitor in preparation for transportation on a gurney to X-ray.   A little later, while still in the labor room, Mrs. Schultz had her membranes rupture, and Nurse Huizinga confirmed this event.   The nurse said she would inform defendant, left for about 10 minutes and came back to say defendant did not want her to go to X-ray, an assertion denied by defendant at trial.2  Ten to fifteen minutes later Nurse Rasic transported her to X-ray on a round trip that took about 45 minutes.   Upon return to the labor room, Mrs. Schultz remained off the external monitor and was left unsupervised, save by her husband, until about 2:20 a.m.   In the interim, defendant became caught up in an emergency Caesarian section involving a Mrs. Payton, requiring the attention and services of available hospital nurses either specially trained or best suited for obstetrical care, namely Nurses Huizinga, Best, Horton and Rasic—the same nurses needed to care for Mrs. Schultz.   During the Caesarean section on Mrs. Payton, Dr. Mutch exercised authority and control over the nurses and made various orders to the nurses concerning Mrs. Payton but made no such orders concerning Mrs. Schultz nor any inquiries concerning her condition and well-being.

After the Payton operation at about 2:20 a.m., Nurse Horton examined Mrs. Schultz, discovered her ruptured membranes and attempted to reconnect her to the external monitor.   Her efforts in that regard were inept, the result being that the monitor did not register any intelligible information.   Defendant was summoned and arrived at about 2:25 a.m.   He re-examined Mrs. Schultz, immediately verified the rupture of her membranes, but, significantly, made no effort to obtain the fetal heart rate—either by monitor or by fetoscope 3 until about 3 a.m. at which time an internal fetal monitor was attached directly to the baby's scalp and belatedly revealed dire distress.   Alternately, the evidence established that defendant obtained an abnormal fetal heart rate at about 2:45 a.m. but nonetheless commenced normal (but in that context unnecessarily dilatory) delivery procedures, including administration of an intravenous solution and spinal anesthetic and attachment of an internal fetal monitor.   These preparations delayed Christopher's birth by about 10 to 15 minutes—time that was precious because, as it turned out, the baby was being asphyxiated within his mother's womb.

After delivery, defendant ineffectually attempted to resuscitate the baby.   He failed to clean the baby's trachea of meconium (fecal matter) and fluid before injecting air into his lungs (“bagging”), thereby causing the meconium and fluid to be ingested into the lungs.

In addition, a pediatrician, summoned to assist in the resuscitation, manipulated an endotracheal tube in such a way as to cause a hole in one of the baby's lungs and a resulting pneumothorax.4

Several experts testified to negligence by defendant at various stages of Christopher's birth.   Dr. Arnold Medearis testified that defendant should have known Christopher was presenting himself headfirst and consequently his mother should not have been removed from the fetal monitor for an X-ray.   Dr. Carl Miller testified that Dr. Mutch's failure to take the fetal heart tone upon returning to Mrs. Schultz was below the standard of practice.   The testimony of Drs. James Frudenfeld, Medearis and Miller established that the baby should have been delivered much more quickly from the time distress was discovered, i.e., in five minutes rather than twenty, and that such delay was a substantial cause of Christopher's disabilities.   Drs. Miller and Medearis both testified that Dr. Mutch improperly resuscitated the baby in that he should have been more careful to remove the meconium and fluid from the baby's air passages prior to injecting air into its lungs.   Dr. Miller and Dr. Ronald Gabriel testified that the baby was asphyxiated both prior to and after birth, thereby causing his injuries.5

Christopher's damages were quite substantial.   Dr. Richard Koch testified that Christopher could live to be as old as 50 years.   Dr. Gabriel indicated that Christopher will always be totally disabled.   Dr. Jeanne Heyerick testified that during the course of his life Christopher would require a variety of expensive therapies, including physical, occupational, speech, feeding and sensory integration.   Economist George Schultz itemized the present cash value of Christopher's needs, assuming a 50 percent of normal life expectancy, as follows:  attendant care, one shift a day $533,900, and two shifts per day, $1,067,800;  or alternately two shifts a day of attendant care to age 21 and board and care thereafter, $788,200;  physical therapy and occupational therapy, each $107,300;  speech therapy to age 17, $56,000;  pediatric care, $34,000;  neurological care, $91,300, and orthopedic care, $45,600.   Additionally, Christopher would require special equipment costing $8,000 to $10,000 per year.   Lastly, Mr. Schultz testified that the current value of Christopher's lost earnings, assuming a normal life expectancy and the absence of disabilities other than those at birth, would be $706,000 with an average education and $1,034,000 with a college education.   Drs. Ronald Gabriel and Koch, as well as the plaintiff's parents, testified that Christopher is capable of and is in fact experiencing pain and suffering.

The jury awarded plaintiff $480,000 in economic damages but nothing for pain and suffering and denied the parents any recovery.

Plaintiff challenged the sufficiency of the verdict by way of motion for new trial, and the trial court responded by granting a conditional order for new trial on the issue of damages only—conditional on defendant's acceptance of a net settlement of $330,000, calculated as follows:  total award of $1,680,000 ($1,200,000 in economic damages plus $480,000 in non-economic) less $1,350,000, representing settlement payments of joint tortfeasors.   In its written order required by Code of Civil Procedure section 657, the trial court set out its reasoning, including its findings that the jury should have awarded plaintiff damages for pain and suffering and that the jury's award of economic damages was grossly insufficient.   Defendant refused the additur, and this appeal ensued.

II. Respondeat Superior—“Captain of the Ship”

Plaintiff proceeded in part on the respondeat superior doctrine of “Captain of the Ship,” 6 which provides that a physician exercising control and authority over nurses should be held liable for negligence of those nurses.

“[W]hile assistant physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon him for their negligent acts under the doctrine of respondeat superior.”  (Ybarra v. Spangard (1944) 25 Cal.2d 486, 492, 154 P.2d 687.)

 The doctrine is founded in the doctor's power and resulting duty to direct nurses under his supervision.   Consequently, a doctor's reliance, no matter how reasonable, on hospital nursing procedures does not extinguish liability.   As stated in the earliest formulation of the doctrine in this state:

“The surgeon had the power and, therefore, the duty to direct the nurse to count the sponges as a part of his work in the opening and closing of plaintiff's abdomen and the putting in and taking out of sponges, and it was his responsibility to see that such work was done.   He cannot relieve himself of liability by any custom or rule requiring the nurses to count the sponges used and removed.”  (Armstrong v. Wallace (1935) 8 Cal.App.2d 429, 439, 47 P.2d 740, quoted with approval in Ales v. Ryan (1936) 8 Cal.2d 82, 105, 64 P.2d 409.)

 The wrinkle in this case is that at the time of negligent supervision of Mrs. Schultz, the nurses were being supervised by Dr. Mutch in the course of a surgery on another patient.7  This distinction, however, does not appear to be material.   Whether engaged in surgery on a plaintiff or on a third party, the physician is the principal and the nurses controlled by him are his agents under principles of agency law.   In the instant case, plaintiffs requested and the trial court granted a modified version of BAJI 6.06, deleting references to surgery.8  We see no error in doing so.

We are unpersuaded by Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, 344–349, 180 Cal.Rptr. 152, which expresses doubt as to the continued validity of the “Captain of the Ship” doctrine.   Initially, we observe that statements in that decision are dictum in that the issue there was the exact opposite of that herein.   In Truhitte, a “dual employment” case, the question was liability of a hospital for acts of negligence committed by its nurses while under the supervision of a physician.

The Truhitte court conjectures that the “Captain of the Ship” doctrine rests upon outmoded notions of public policy, to wit, compensating victims of medical malpractice when hospitals were exempted from judgments by charitable immunity and by the notion that doctors and nurses were independent contractors.  (Id., at pp. 345–346, 180 Cal.Rptr. 152.)   The court goes on to argue that since the independent contractor and charitable immunity bases for absolving hospitals have since been repudiated, the rationale for the “Captain of the Ship” doctrine has likewise disappeared.

Unfortunately, the Truhitte court overlooks a second, cogent and still pertinent justification for the doctrine, namely the special relationship between a vulnerable hospital patient and the physician chosen by that patient.   A hospital patient in surgery or for that matter in labor pending surgery is almost completely helpless.   At such a late date there is no turning back, no changing hospitals or shopping for a new doctor.   The patient can do next to nothing about incompetent or uncaring attention.   In preparation for such a situation, the patient has chosen a physician, presumably based on faith in his competence and expertise.   The patient reasonably expects the doctor to oversee her care and to look out after her interests while in and immediately pending surgery.

The above considerations were alluded to in Ybarra v. Spangard, supra, 25 Cal.2d 486, 154 P.2d 687, a res ipsa loquitur case, wherein the California Supreme Court noted the defenselessness of hospital patients, the element of choice of physicians, the fact the patients are often rendered unconscious and the inability of the patient to understand or control what is happening (25 Cal.2d at p. 490, 154 P.2d 687), as well as the impersonal, bureaucratic nature of hospital care (id., at pp. 491–492, 154 P.2d 687).

These factors are as viable now as they were at the time of the inception of the “Captain of the Ship” doctrine in this state;  and consequently, this court sees no purpose in eroding that doctrine.

Cases cited in Truhitte for the proposition that in recent years California courts have been scaling back the “Captain of the Ship” doctrine are readily distinguishable.   Cases such as Marvulli v. Elshire (1972) 27 Cal.App.3d 180, 103 Cal.Rptr. 461;  Seneris v. Haas (1955) 45 Cal.2d 811, 829, 291 P.2d 915;  and Kennedy v. Gaskell (1969) 274 Cal.App.2d 244, 249, 78 Cal.Rptr. 753, reject the notion that a surgeon can be held liable in respondeat superior for the negligence of an anesthesiologist, over whom he has no control or power of supervision.   These cases reason that the anesthesiologist is a specialist, whose authority within his field is supreme to that of the surgeon's.   Quite obviously such reasoning is inapplicable to nurses who are obligated to follow the commands of a physician.   Other cases such as Sherman v. Hartman (1955) 137 Cal.App.2d 589, 290 P.2d 894 (post-operative negligence), and Hallinan v. Prindle (1936) 17 Cal.App.2d 656, 62 P.2d 1075 (pre-operative negligence), concern nursing errors committed at a time when the defendant physician was neither present nor in control.

In the face of consistent adherence to “Captain of the Ship” in cases raising the issue of liability imputed to a physician for acts and omissions of nurses under his control and supervision and the Supreme Court's expressions of approval in Ybarra v. Spangard, supra, 25 Cal.2d 486, 154 P.2d 687 and Ales v. Ryan, supra, 8 Cal.2d 82, 64 P.2d 409, this court feels constrained to continue to follow the doctrine.

 Thus, we conclude that plaintiff's special Instruction No. 3, modeled on BAJI 6.06, was supported by the evidence and properly given.

III. Instructional Error as to Negligence and Causation

 Defendant contends that the trial court improperly gave BAJI 3.76 (legal cause) 9 and 3.77 (concurrent causes) 10 and a special instruction concerning defendant's liability for subsequent negligent treatment.11  We reject these contentions in that the instructions are supported by the law and the evidence, in particular the testimony of expert witnesses, and defendant has suffered no prejudice.

The three instructions were amply supported by the record.   Both Drs. Gabriel and Medearis testified that the acts and omissions of Dr. Mutch were a substantial factor in the eventual injuries suffered by Christopher Schultz.   The evidence likewise reflects the acts and omissions of persons other than defendant, namely nurses and a pediatrician, possibly contributing to Christopher's injuries.

Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 128 Cal.Rptr. 807, appears to be dispositive of defendant's challenge to the instructions.   In that case the decedent was injured while at a Los Angeles Dodgers baseball game.   He was initially examined and negligently treated by the Dodgers' stadium physician.   His parents later took him to a hospital where he received further negligent treatment, concluding in his demise.   Only the case against the stadium doctor and his principal, the Dodgers Baseball Club, went to the jury.   The defendants contended that the plaintiffs' failure to establish that the hospital's negligent failure to save the decedent was not the cause of death required a defense verdict.   The trial court apparently accepted this analysis and denied plaintiffs' request for BAJI 3.77 on concurrent causes.   In holding that plaintiff was entitled to have that instruction read to the jury, this court stated:

“It was plaintiffs' right to have the jury instructed as to the law applicable to all their theories of the case which were supported by the pleadings and the evidence, whether or not that evidence was considered persuasive by the trial court.  (Id., at p. 633, 128 Cal.Rptr. 807;  citation omitted.)

“․

“We, therefore, conclude that under the facts of this case, the rule of law applicable rendered irrelevant the existence or degree of the negligence, if any, of the Childrens Hospital staff.   Under that rule, the claimed negligence of Dr. Jones and the conduct of the Childrens Hospital staff were concurrent causes which were operative at the moment of injury.   It was no defense to plaintiffs' claim based on Dr. Jones' negligence that the conduct of the Childrens Hospital staff was also a substantial factor contributing to decedent's death.”  (Id., at p. 639, 128 Cal.Rptr. 807.)

The decision in Fish was based on longstanding principles.   For example, in Ash v. Mortensen (1944) 24 Cal.2d 654, 657, 150 P.2d 876, the California Supreme Court stated:

“It is settled that where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him liable therefor.”

This court cannot see how defendant was prejudiced by the giving of said three plaintiffs' instructions.   Had the case against the joint tortfeasor hospital also gone to the jury on a respondeat superior theory based on nursing errors, clearly concurrent negligence would be the standard.   Since that co-tortfeasor settled, defendant's interests are protected by Code of Civil Procedure section 877, providing that any judgment against defendant be reduced by the amounts of settlements against co-tortfeasors.12

Under the law, defendant is liable for the full extent of plaintiff's injuries for his concurrent negligence contributing substantially to plaintiff's injuries, subject, of course to his right to indemnity against his co-tortfeasors.   Consequently, the trial court properly gave BAJI 3.76 and 3.77 and the Special Instruction No. 18A.

IV. Admissions of Fact

Defendant argues that the verdict must be reversed because plaintiff was allowed to pursue theories of liability belied by admissions made by his parents in discovery.   We find no merit in this contention.

The particular set of requests for admissions at issue, was served on Mr. and Mrs. Schultz, without reference to Mr. Schultz' capacity as Christopher's guardian ad litem, and posed the following pertinent contentions:

“Request No. 57:  No medical contraindication existed for Dr. Mutch's order for an abdominal X-ray of Marcia Schultz at the time such an order was given by Dr. Mutch.”

“Request No. 63:  None of the nursing personnel at Verdugo Hills Hospital advised Dr. Mutch of the presence of fetal distress in the Schultz fetus at any time prior to 2:45 a.m. or December 19, 1977.”

“Request No. 66:  The use of a saddle block anesthesia by Dr. Mutch on Marcia Schultz was consistent with the standard of practice of competent obstetric physicians in this community in December of 1977.”

Mr. and Mrs. Schultz admitted each of these contentions, but at trial plaintiff Christopher Schultz was relieved of those admissions.

 We find the absence of service of the requests for admissions upon Mr. Schultz in his capacity of guardian ad litem and the trial court's power to supervise guardianships ad litem dispositive of the issue.   Defendant would have this court treat the appointment of the father as guardian ad litem as a mere technicality to be given no substantive effect in discovery.   However, Code of Civil Procedure section 372 significantly restricts a guardian ad litem's authority to enter into admissions and correspondingly empowers trial courts to scrutinize admissions, particularly those directly bearing on a minor's substantive rights.   Thus, it is well-settled that a guardian ad litem cannot prejudice the substantial rights of a minor by way of admissions or stipulations.  (Berry v. Chaplin (1946) 74 Cal.App.2d 652, 657, 169 P.2d 442;  Kidwell v. Ketler (1905) 146 Cal. 12, 18, 79 P. 514;  Robinson v. Wilson (1974) 44 Cal.App.2d 92, 101, 118 Cal.Rptr. 569.)   Moreover, a trial court is authorized under Code of Civil Procedure section 2033 as well as section 473 to relieve a party from an admission where justice so requires.  (Kaiser Steel Corp. v. Westinghouse Electric Corp. (1976) 55 Cal.App.3d 737, 744, 127 Cal.Rptr. 838;  Cohen v. Superior Court (1976) 63 Cal.App.3d 184, 187, 133 Cal.Rptr. 575;  West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 414, 15 Cal.Rptr. 119, 364 P.2d 295.)   Thus, we must conclude that the trial court acted well within its power, whether under Code of Civil Procedure sections 372, 473 or 2033, to relieve plaintiff Christopher from the admissions of his parents.

V. Conditional Order for a New Trial

Defendant contends that the trial court's conditional order for a new trial was an abuse of discretion in that the court's reasoning in granting such order was flawed.   More particularly, defendant contends that the court ordered a new trial in defiance of the province of the jury to adjudicate pain and suffering, Code of Civil Procedure section 877 governing indemnity by settling defendants, Code of Civil Procedure section 667.7, requiring that future damages in excess of $50,000 be paid in periodic payments when requested by a party, Civil Code section 3333.2 limiting non-economic damages in medical malpractice cases to $250,000 and a supposed rule barring double awards for lost income.   We must reject all of these contentions.

 A trial court's authority to grant a new trial for insufficiency of the evidence or inadequacy of the verdict is established by Code of Civil Procedure section 657, subdivisions (5) and (6).   In exercising this authority the judge may review conflicting evidence, weigh its sufficiency, consider credibility of witnesses, reject any testimony believed false and draw any reasonable inferences.  (Perry v. Fowler (1951) 102 Cal.App.2d 808, 811, 229 P.2d 46;  Peri v. Culley (1931) 119 Cal.App. 117, 120, 6 P.2d 86;  Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 440, 142 Cal.Rptr. 304.)

 On appeal a trial court's reasoning in granting a new trial is not dispositive.   Instead, the issue is whether there is a substantial basis in the record for the order.  (Thompson v. John Strona & Sons (1970) 5 Cal.App.3d 705, 709, 85 Cal.Rptr. 350;  Mehling v. Schield (1967) 253 Cal.App.2d 55, 58–59, 61 Cal.Rptr. 159.)

 However, when a trial court grants a new trial due to insufficiency of the evidence or inadequacy of the verdict, the grounds for new trial stated in the trial court's order are conclusively presumed to be exclusive.  (Collins v. Lucky Markets, Inc. (1969) 274 Cal.App.2d 645, 650, 79 Cal.Rptr. 454;  Code Civ.Proc., § 657.)

 Thus, in reviewing the conditional order for new trial herein this court must examine the record to determine whether there is a substantial basis for the order limited to the reasons cited by the court below.13

 We find that the record adequately supports the trial court's decision.   First, the trial court, sitting as a “thirteenth juror” had clear authority to disagree with the jury's failure to award plaintiff Christopher any damages for pain and suffering.  (Sanchez v. Hasencamp (1980) 107 Cal.App.3d 935, 166 Cal.Rptr. 118;  Code Civ.Proc., § 662.5.)   Since testimony by experts and plaintiff's parents to the effect he is capable of and does in fact experience suffering from his disabilities was uncontradicted, there can be no conclusion but that the trial court acted appropriately.

 Second, without resolving the question of the constitutionality of Civil Code section 3333.2, and thereby assuming arguendo that non-economic damages must be limited to $250,000, the record justified the trial court's independent finding that a total award of $1,680,000 would reasonably compensate plaintiffs.   Within its order, the trial court stated monetary ranges, supported by the record, for each element of damages.   If we reduce non-economic damages to $250,000, the total damage figure chosen by trial court would still be well within the sum of those ranges.

 Third, we do not see the relevance of Code of Civil Procedure section 667.7, which requires periodic payment of future damages in excess of $50,000 when requested by a party.   Defendant has not cited us to any such request in the record;  consequently, the periodic payment requirement appears not to have been triggered.   Moreover, there is no conflict between the conditional new trial order, setting what the trial court believes is an appropriate level of future damages, and defendant's rights under section 667.7, as yet unasserted.  (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 376–377, 204 Cal.Rptr. 671, 683 P.2d 670.)

 Fourth, we do not see any conflict between defendant's right to indemnity under Code of Civil Procedure section 877 and the trial court's exercise of its additur powers.   The court simply found that a reasonable verdict would have been $1,680,000 and then accorded defendant the indemnity to which he was entitled.

 Last, defendant's contention regarding possible double compensation, to wit, that plaintiff's heirs might in the future recover in a wrongful death action lost income damages duplicating those awarded herein, is without merit.  (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665.)   In the event of a subsequent wrongful death action, an extreme unlikelihood in view of plaintiff's extensive disabilities and the failure of his parents, his only viable heirs, to recover at the trial below, defendant would be permitted to have the jury consider recovery for lost income in the instant case.

VI. Sanctions

After careful consideration of the record we have determined that plaintiff's request for sanctions on appeal must be denied because the criteria for such, set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179, have not been met.

VII. Conclusion

For the foregoing reasons that part of the judgment establishing liability and the order granting a new trial on the issue of damages are affirmed;  and the matter is remanded for a new trial on that issue only.   Plaintiff is awarded his costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.   Defendant and others testified that he re-examined Mrs. Schultz at about 12:45 a.m. and at that time ordered the X-ray whereas Mrs. Schultz testified she was examined only once.   As will appear below, whether defendant examined Mrs. Schultz once or twice before the X-ray and whether the X-ray order was made at 12:05 or 12:45 are not material to the outcome.

2.   On the face of the record it would appear defendant was the butt of some devastating impeachment.   During cross-examination he was forced to admit that he surreptitiously altered plaintiff's birth records well after the fact.   Thus, the jury might well have regarded all of defendant's testimony as suspect.

3.   An instrument resembling a stethoscope.

4.   An air pocket in the chest cavity preventing the lung from inflating.

5.   As noted above, the record included evidence of nursing negligence, including failure to inform Dr. Mutch that Mrs. Schultz' membranes had broken and failure to properly monitor Mrs. Schultz during Dr. Mutch's absence.   However, there was also testimony that these nursing omissions were not the cause of Christopher's injuries.

6.   The term was coined in McConnell v. Williams (1949) 361 Pa. 355, 65 A.2d 243, 246.

7.   McCullough v. Langer (1937) 23 Cal.App.2d 510, 517, 73 P.2d 649, cited by plaintiff as authority for the proposition that “Captain of the Ship” has been applied outside of operating rooms, is not in actuality a respondeat superior case but instead upholds liability of a physician as a “joint participant in the acts complained of.”

8.   Plaintiff's Special Instruction No. 3 provided:  “Regardless of who employs or pays a nurse who takes part in the performance of services incidental to the treatment of a plaintiff, if, while engaged in any such service, the nurse is under the direction of a certain physician in charge, so as to be his temporary servant or agent, any negligence on the part of any such assisting person, occurring while the latter is under the physician's direction, is deemed in law to be the negligence of such physician.”

9.   “A legal cause of an injury is a cause which is a substantial factor in bringing about the injury.”

10.   “There may be more than one legal cause of an injury.   When negligent conduct of two or more persons contributes concurrently as legal causes of an injury, the conduct of each of said persons is a legal cause regardless of the extent to which each contributes to the injury.   A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury.   It is no defense that the negligent conduct of a person not joined as a party was also a legal cause of injury.”

11.   Special Instruction No. 18A as modified provided:  “The law regards the act or acts of the original negligent physician as a legal cause of the damages flowing from any subsequent medical treatment.”

12.   Defendant's related contentions that plaintiff pursued conflicting theories against the hospital and against defendant and that plaintiff should be estopped from asserting on appeal theories rejected by the trial judge are both clearly specious.   Leaving aside the issue of whether either of these contentions is supported by the record, as to the former contention California courts have long allowed plaintiffs to press inconsistent causes of action.  (Tanforan v. Tanforan (1916) 173 Cal. 270, 273, 159 P. 709.)   And on appeal a reviewing court may disregard untenable theories and findings and affirm a judgment on a theory supported by the evidence.  (Crogan v. Metz (1956) 47 Cal.2d 398, 403, 303 P.2d 1029.)   As to the latter contention, only the propriety of the trial court's actions in giving the challenged instructions, not its reasoning in doing so, is reviewable on appeal.  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.)

13.   Although plaintiff improperly attempted to impeach or interpret the jury's verdict by use of juror affidavits (Continental Dairy Equipment Co. v. Lawrence (1971) 17 Cal.App.3d 378, 385–387, 94 Cal.Rptr. 887), presence of such affidavits in the record appears to have no bearing on the propriety of the trial court's conditional order for a new trial.

SMERLING, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

LILLIE, P.J., and THOMPSON, J., concur.

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