Opinion
Page __
__ Cal.App.2d __ 213 P.2d 106 HUFFMAN v. LINDQUIST et al. HUFFMAN v. BELL et al. Civ. 17029. California Court of Appeals, Second District, First Division Jan. 5, 1950.Hearing Granted March 2, 1950.
Subsequent opinion 234 P.2d 34.
Rehearing Denied Jan. 26, 1950.
[213 P.2d 107] Martin, Hahn & Camusi, Los Angeles, for appellant.
Chase, Rotchford, Downen & Chase, Hugh B. Rotchford and Richard T. Drukker, Los Angeles, for respondent Lindquist.
Musick, Burrell & Ingebretsen, and Anson B. Jackson, Jr., Los Angeles, for respondent Hospital.
DRAPEAU, Justice.
Plaintiff sued defendants doctor and hospital for wrongful death of her minor son, based upon malpractice and negligence in the treatment and care of said son, after he had been injured in an automobile collision. Trial resulted in judgments of nonsuit in favor of the doctor and the hospital.
The above action was consolidated for trial with another action for wrongful death arising out of the same collision, and a judgment for $3,000 was rendered against defendant John E. DeLand, as to whom a new trial was granted upon consent of plaintiff.
Plaintiff prosecutes this appeal from the judgments of nonsuit, it being contended that an analysis of the evidence considered in the light most favorable to appellant, precludes the granting of a nonsuit in favor of either Dr. Lindquist or the Santa Monica Hospital. In other words, that she made out a prima facie case of negligence which was the proximate cause of the death.
As stated in Frederickson v. Kepner, 82 Cal.App.2d 905, 906, 187 P.2d 800, [213 P.2d 108] 801: 'It is the rule that in reviewing a judgment predicated upon the granting of a motion for nonsuit an appellate court (1) is not permitted to weigh inconsistencies in the evidence, (2) is not permitted to construe the evidence other than as strongly as possible in favor of plaintiff, (3) must disregard all evidence in conflict with that in plaintiff's favor, (4) must consider every inference fairly deducible from the evidence and every favorable presumption arising therefrom as facts established by plaintiff, and (5) where the evidence is susceptible of two constructions or if several inferences reasonably may be drawn therefrom, it must take the view most favorable to plaintiff.'
Certain general propositions applicable in malpractice actions were stated in Engelking v. Carlson, 13 Cal.2d 216, 220, 221, 88 P.2d 695, 697: 'The law has never held a physician or surgeon liable for every untoward result which may occur in medical practice. It requires only that he shall have the degree of learning and skill ordinarily possessed by physicians of good standing practicing in the same locality and that he shall use ordinary care and diligence in applying that learning and skill to the treatment of his patient. (Citation of authorities.) Whether he has done so in a particular case is a question for experts and can be established only by their testimony.'
However, it was held in Lashley v. Koerber, M.D., 26 Cal.2d 83, 89, 156 P.2d 441, 444, that 'The expert testimony which establishes plaintiff's prima facie case in a malpractice action may be that of defendant. (Lawless v. Calaway, 1944, 24 Cal.2d 81, 90, 147 P.2d 604; Anderson v. Stump, 1941, 42 Cal.App.2d 761, 765, 109 P.2d 1027.) We can presume that defendant in testifying will state his case as favorably to himself as possible. (See Alper v. Tormey, 1907, 7 Cal.App. 8, 12, 93 P. 402.) * * * in reviewing a judgment of nonsuit, where defendant's statements or inferences drawn therefrom conflict the conflict must be resolved in favor of plaintiff; where the statements are reasonably susceptible of more than one meaning, that meaning is to be placed on them which is favorable to plaintiff.'
Viewing the evidence in the light of the above enunciated rules, the record herein discloses the following:
Appellant's minor son, Steven Huffman, sustained a head injury and fractured skull in an automobile collision around midnight of Saturady, March 16, 1946, and was removed by ambulance from the scene to the Santa Monica Hospital, owned and operated by respondent Lutheran Hospital Society of Southern California. An intern at the hospital notified appellant about 1:00 a. m. of Sunday, March 17th, that her son had been injured. She inquired if he was the doctor in charge, and he said he was an intern, but that Dr. Lindquist took care of emergency cases. Approximately fifteen minutes later appellant arrived at the hospital where she remained in her son's room constantly, with the exception of short intervals and one two-hour period, until his death around 1:00 Monday morning.
Upon her arrival the mother found her son in the emergency room attended by Dr. Brothers, an intern, who upon inquiry told her that the doctor would be there shortly. At that time the boy was conscious and able to speak to the mother. Thereafter, around 2:30 a. m., the son was placed in a private room, at which time he was 'kind of dopey' and 'drowsy,' not restless, and whole he seemed to understand statements made to him, he did not answer.
Dr. Lindquist came around 10:00 a. m. Sunday morning, at which time when he was being examined by the doctor, the boy seemed 'more unconscious' than before but was not restless; at 12:00 her was restless, hot and feverish, and when addressed by his mother, he responded; the last time the patient spoke was around 1:15 p. m. on Sunday, and the last sign of physical recognition made by the boy was around 3:00 that afternoon. At 3:45 that afternoon, the boy was very restless and feverish, was not able to understand his mother, and although not 'completly unconscious,' he was 'very much worse.' Dr. Lindquist visited the patient at 7:30 Sunday evening, felt his pulse and opened his eyes. Appellant was away from the hospital from nine until eleven o'clock Sunday evening, and upon her return noticed quite a change [213 P.2d 109] in the boy's condition: He was unconscious and in a coma, not moving, and was breathing very hard and labored; had developed a rattle in his throat. About 12:45 Monday morning, March 18th, the patient stopped breathing just as Dr. Lindquist came into the room and called for a respirator or pulmotor. Dr. Schetgen, the intern, brought the pulmotor but it failed to function; it was replaced, but the second one also failed to work, whereupon Dr. Lindquist turned to the intern and said: 'Don't you know how to work it? * * * Doesn't anybody know how to work it?' In the meanwhile, the patient's heart was still beating perceptibly, and a third machine was procured which was used one or two minutes before Dr. Lindquist pronounced the boy dead.
The patient's sister, Mrs. Frances Machado, talked to Dr. Lindquist on the telephone at 5:00 and 7:30 p. m. on Sunday, stating she desired to have a specialist, Dr. Carl Rand, called in; that she felt her brother's condition was 'very bad' and she would like something done that evening. She testified that Dr. Lindquist told her he would see what could be done the following day.
Respondent Lindquist was called as a witness under section 2055, Code of Civil Procedure, and his deposition was also read in evidence, to-wit: That the emergency service of respondent hospital called him at 1:00 or 1:30 a. m. Sunday, March 17th; that the intern he talked to thought the patient 'had a possible skull fracture. He had a brain injury. He was semi-conscious. * * * I told him to have the patient admitted and to watch him, take his blood pressure every hour or two, and also his pulse and respiration, and if there was any change to report it to me * * * if he was restless to give him some phenobarital or some codeine.' When he saw the boy between nine and ten o'clock Sunday morning, he was 'semi-conscious, rather restless. His blood pressure * * * his pulse and temperature were within normal limits. * * * his eyes were dilated but they reacted to light.' He did not prescribe different care except to order a glucose injection; that he knew then that the patient had a brain injury; also the intern stated to him that the patient had had peculiar convulsive movements of the face and scalp some time after his admission to the hospital. The witness stated he 'knew the patient had some hemorrhage, whether it was epidural or subdural, when I first saw him. I did not know the extent or where the hemorrhage was, until I saw the coroner's report'; and that he first knew the patient had a depressed fracture of the skull after he saw the coroner's report. The doctor also stated that he saw the patient four times on Sunday, March 17th: between 9 and 10 o'clock in the morning, at noon, at 7:15 p. m., and around midnight; that from the time he was first assigned to the case until 7:15 p. m. of Sunday, there was not enough change in the patient's condition to warrant any change in treatment.
On direct examination by appellant, Dr. Lindquist testified that he was an M.D. and specialized in traumatic surgery; that he had been in practice and on the staff of the Santa Monica Hospital for twenty-two years; that he had assisted at operations of the brain, and when he had a brain injury case he called in a specialist if the condition of the patient warranted it; that a brain injury is usually accompanied by dilatation of the pupils of the eyes which is also one of the symptoms of an epidural hemorrhage; that when he examined the patient at 10:00 Sunday morning, the pupil of his right eye was slightly dilated; that he found a suggestive Babinsky which was indicative of brain injury.
In answer to the question: 'What other factors do you take into consideration in determining whether or not there is epidural hemorrhage?' the witness stated: 'I take into consideration whether he is getting any increased intracranial pressure, which is the usual sign, as they become gradually more unconscious, go into a deep stupor, their blood pressure climbs way high with a slowing of their pulse * * * the respirations get slower, and that pupil then generally becomes dilated completely, right out to the rim, and it is fixed, you cannot make it contract with any amount of light you wish to put in it.' Further, 'As a general rule, from all I can find out [213 P.2d 110] in talking to neurosurgeons, when a pupil will react to light, it is not serious.' In discussing the classical picture of an epidural hemorrhage, this witness stated that in the majority of cases the patient is (1) unconscious; (2) lucid; (3) gradually unconscious. He explained that an epidural hemorrhage is one between the bony vault of the brain and the dura, which is the tough membrane surrounding the brain.
The witness' attention was called to the recital in the autopsy report that the patient had 'an epidural hemorrhage 1.5 cm. thick.' He was then asked by appellant's counsel: 'All right, Doctor, let us assume that you have a case of epidural hemorrhage, and is it not true that if the bleeding continues and no operation is made to clean out that clot, open the brain, the patient will surely die?' After objection thereto had been overruled, the doctor replied: 'Certainly if the hemorrhage continues to make that clot big enough to create enough pressure on your brain, you are going to die, surely.'
Respondent doctor's description of the symptoms of an epidural hemorrhage was sufficient to raise the inference that he was negligent in failing to recognize that the patient was suffering from an epidural clot. Moreover, it is manifest from his statement that if an epidural clot creates enough pressure on the brain, the patient will die, the jury could infer that the standard of care of reputable physicians in the locality required an immediate operation to relieve the pressure in an effort to save the patient's life.
While it is true that Dr. Lindquist did not expressly refer to the practice followed by other doctors in the community, nevertheless, as stated in McCurdy v. Hatfield, 30 Cal.2d 492, 495, 183 P.2d 269, 271: '* * * he did testify as to what was proper practice, and it is reasonable to infer that his testimony was based on the standard of care used by physicians in the locality. If he failed to conform to the proper practice as set forth in his testimony, he did not act as a reasonable physician should under the circumstances.'
Respondent argues that 'the cause of death, as established by the evidence, was a pulmonary embolism.' The death certificate recites the immediate cause of death as 'Pulmonary Embolism,' such certificate further recites that the immediate cause of death was 'Due to Cerebral contusion and hemorrhage. Due to Fracture of skull.'
Appellant contends that the embolism was a terminal matter which developed when the patient was about to die and was due to the increased intracranial pressure caused by the epidural clot. Respondent doctor testified that an embolism is usually fatal in a very few minutes, and in answer to the question: 'You gave some of the reasons for pulmonary embolism, Doctor. Now, isn't a very common reason really that pulmonary embolism is a terminal factor, by that I mean, in any type of case where you have a patient that is in pretty bad condition, and is about ready to die, an embolism may develop?'--Dr. Lindquist replied: 'It may be, but I don't say that that is the thing, I am not enough of a pathologist to answer that, I don't know that.'
Since it is apparent that appellant has established a prima facie case of negligence against respondent Doctor Lindquist, the nonsuit as to him should not have been granted.
Appellant also urges that respondent hospital was negligent in various respects: (1) in assuring her that Dr. Lindquist would immediately attend her son, while in fact he did not see him for some eight or nine hours later; (2) the failure of the pulmotors to function and (3) carelessness of the interns and nurses in keeping records of the patient's condition.
An examination of the record on this phase of the case does not disclose any causal connection between such acts of alleged negligence and the alleged wrongful death of the appellant's son. Hence, there was no error in granting the motion of nonsuit in favor of respondent hospital.
For the reasons stated, the judgment of nonsuit as to respondent hospital is affirmed; the judgment of nonsuit as to respondent Dr. C. A. Lindquist is reversed, and the cause remanded for a new trial.
WHITE, P. J., and DORAN, J., concur.