Multiple Defendants

Ybarra v.Spangard

Supreme Court of California,1944

25 Cal.2d 486,154 P.2d 687

Action by Joseph Roman Ybarra against Lawrence C.Spangard and others for injuries resulting from allegedly improper treatment by physicians and nurses.From a judgment of nonsuit,plaintiff appeals.Reversed.

GIBSON,CHIEF JUSTICE.This is an action for damages for personal injuries alleged to have been inflicted on plaintiff by defendants during the course of a surgical operation.The trial court entered judgments of nonsuit as to all defendants and plaintiff appealed.

On October 28,1939,plaintiff consulted defendant Dr.Tilley,who diagnosed his ailment as appendicitis,and made arrangements for an appendectomy to be performed by defendant Dr.Spangard at a hospital owned and managed by defendant Dr.Swift.Plaintiff entered the hospital,was given a hypodermic injection,slept,and later was awakened by Drs.Tilley and Spangard and wheeled into the operating room by a nurse whom he believed to be defendant Gisler,an employee of Dr.Swift,adjusted plaintiff for the operation,pulling his body to the head of the operating table and,according to plaintiff’s testimony,laying him back against two hard objects at the top of his shoulders,about an inch below his neck.Dr.Reser then administered the anesthetic and plaintiff lost consciousness.When he awoke early the following morning he was in his hospital room attended by defendant Thompson,the special nurse,and another nurse who was not made a defendant.

Plaintiff testified that prior to the operation he had never had any pain in,or injury to,his right arm or shoulder,but that when he awakened he felt a sharp pain about half way between the neck and the point of the right shoulder.He complained to the nurse,and then to Dr.Tilley,who gave him diathermy treatments while he remained in the hospital.The pain did not cease but spread down to the lower part of his arm,and after his release from the hospital the condition grew worse.He was unable to rotate or lift his arm,and developed paralysis and atrophy of the muscles around the shoulder.He received further treatments from Dr.Tilley until March,1940,and then returned to work,wearing his arm in a splint on the advice of Dr.Spangard….

Plaintiff’s theory is that the foregoing evidence presents a proper case for the application of the doctrine of res ipsa loquitur,and that the inference of negligence arising therefrom makes the granting of a nonsuit improper.Defendants take the position that,assuming that plaintiff’s condition was in fact the result of an injury,there is no showing that the act of any particular defendant,nor any particular instrumentality,was the cause thereof.They attack plaintiff’s action as an attempt to fix liability “en masse” on various defendants,some of whom were not responsible for the acts of others;and they further point to the failure to show which defendants had control of the instrumentalities that may have been involved.Their main defense may be briefly stated in two propositions: (1) that where there are several defendants,and there is a division of responsibility in the use of an instrumentality causing the injury,and the injury might have resulted from the separate act of either one of two or more persons,the rule of res ipsa loquitur cannot be invoked against any one of them,and (2) that where there are several instrumentalities,and no showing is made as to which caused the injury or as to the particular defendant in control of it,the doctrine cannot apply.We are satisfied,however,that these objections are not well taken in the circumstances of this case….

The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other.The passenger sitting awake in a railroad car at the time of a collision,the pedestrian walking along the street and struck by a falling object or the debris of an explosion,are surely not more entitled to an explanation than the unconscious patient on the operating table.Viewed from that aspect,it is difficult to see how the doctrine can,with any justification,be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses,is rendered unconscious,and receives some injury from instrumentalities used in his treatment.Without the aid of the doctrine a patient who received permanent injuries of a serious character,obviously the result of someone’s negligence,would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.If this were the state of the law of negligence,the courts,to avoid gross injustice,would be forced to invoke the principles of absolute liability,irrespective of negligence,in actions by persons suffering injuries during the course of treatment under anesthesia.But we think this juncture has not yet been reached,and that the doctrine of res ipsa loquitur is properly applicable to the case before us.

The condition that the injury must not have been due to the plaintiff’s voluntary action is of course fully satisfied under the evidence produced herein;and the same is true of the condition that the accident must be one which ordinarily does not occur unless some one was negligent.We have here no problem of negligence in treatment,but of distinct injury to a healthy part of the body not the subject of treatment,nor within the area covered by the operation.The decisions in this state make it clear that such circumstances raise the inference of negligence and call upon the defendant to explain the unusual result.

The argument of defendants is simply that plaintiff has not shown an injury caused by an instrumentality under a defendant’s control,because he has not shown which of the several instrumentalities that he came in contact with while in the hospital caused the injury;and he has not shown that any one defendant or his servants had exclusive control over any particular instrumentality.Defendants assert that some of them were not the employees of other defendants,that some did not stand in any permanent relationship from which liability in tort would follow,and that in view of the nature of the injury,the number of defendants and the different functions performed by each,they could not all be liable for the wrong,if any.We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other.For example,in the present case it appears that Drs.Smith,Spangard and Tilley were physicians or surgeons commonly placed in the legal category of independent contractors;and Dr.Reser,the anesthetist,and defendant Thompson,the special nurse,were employees of Dr.Swift and not of the other doctors.But we do not believe that either the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies.Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard.Any defendant who negligently injured him,and any defendant charged with his care who so neglected him as to allow injury to occur,would be liable.The defendant employers would be liable for the neglect of their employees;and the doctor in charge of the operation would be liable for the negligence of those who became his temporary servants for the purpose of assisting in the operation….

It may appear at the trial,that,consistent with the principles outlined above,one or more defendants will be found liable and others absolved,but this should not preclude the application of the rule of res ipsa loquitur.The control at one time or another,of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants.This,we think,placed upon them the burden of initial explanation.Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment by the defendants;it is manifestly unreasonable for them to insist that he identify any one of them as the person who did the alleged negligent act….

If we accept the contention of defendant herein,there will rarely be any compensation for patients injured while unconscious.A hospital today conducts a highly integrated system of activities,with many persons contributing their efforts.There may be,e.g.,preparation for surgery by nurses and interns who are employees of the hospital;administering of an anesthetic by a doctor who may be an employee of the hospital,an employee of the operating surgeon,or an independent contractor;performance of an operation by a surgeon and assistants who may be his employees,employees of the hospital,or independent contractors;and post surgical care by the surgeon,a hospital physician,and nurses.The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm.It is rather a good reason for re-examination of the statement of legal theories which supposedly compel such a shocking result.

We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked.We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment,all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

The judgment is reversed.

[On the second trial,each of the defendants except the owner of the hospital gave evidence,and each testified that while he was present he saw nothing occur that could have produced the injury to plaintiff’s arm and shoulder.The trial court,without a jury,found that this did not overcome the inference of negligence,and found against all of them.This was affirmed,on the basis of the above opinion,in Ybarra v.Spangard,93 Cal.App.2d 43 (1949)]

Notes and Comments:

1.The court characterized in the comment the plaintiff’s pain as complained in this case as “obviously the result of someone’s negligence,[which the plaintiff]would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.” Would this statement make the ruling in this case narrower or broader? Should a plaintiff/patient in such a case first of all make it an obvious case that he has received pain and suffering from the doctor’s operation,or,indeed,should he prove by evidence that his problem is directly connected with the surgery,which seems to stand the case on its head: the doctrine requires that (1)a plaintiff’s injury is the necessary result of an accident,(2) caused by an instrumentality under exclusive control of the defendant,and (3) the accident would not ordinarily happen – but for the negligence – when the defendant fails to execute its duty of care.By the very wording of the doctrine,it appears out of sequence to use it to prove the above (1) and (2) elements.In other words,it fails to grasp the “res” in the doctrine as to what needs to be proved.The “THING” that speaks for itself,in my own personal understanding,refers to the “instrumentality” rather than the “injury” of the plaintiff/patient.If it’s the latter,it’s like,“Since I’m injured,you must be negligent”;whereas in the former,“Since I’m injured by your tool,you must be negligent.”

2.A pain in the arm could be caused by a variety of reasons,many of which would not necessarily be clear to a doctor or an anesthetist who perform surgery of appendectomy (removing appendix in the lower abdomen),let alone a nurse,especially one who cares the patient after the surgery.It would be medically difficult,if not impossible,to imagine that such a pain is directly connected to the surgery,particularly when such a pain is not a usual side effect of such treatment.Likewise,it is difficult to understand how the court in Ybarra took the assumption of negligence without touching upon this issue.

3.“Res ipsa loquitur” is a rule of evidence,or more precisely,a doctrinal maxim of establishing certain facts through the inference of indirect evidence.Plainly,it is circumstantial in nature,and like any circumstantial evidence,it must be weighed against other evidence for proving or disproving a fact.For example,a CCTV footage showing a person thrusting a knife into another would be direct proof of a crime;but a footage showing a person entering a room,then closing the door,then coming out of it,and then,a dead person is later found in that room,is circumstantial evidence.It is effective only when all other possibilities can be eliminated.

4.[From www.wikipedia.com] Most American courts recognize res ipsa loquitur.The Restatement (Second) of Torts,§ 328D describes a two step process for establishing res ipsa loquitur.The first step is whether the accident is the kind that would usually be caused by negligence,and the second is whether or not the defendant had exclusive control over the instrumentality that caused the accident.If found,res ipsa loquitur creates an inference of negligence,although in most cases it does not necessarily result in a directed verdict.The Restatement (Third)of Torts,§ 17,adopts a similar test,although it eschews the “exclusive control”element.

The doctrine was not initially welcome in medical malpractice cases.In Gray v.Wright,a seven-inch hemostat was left in Mrs.Gray during gall bladder surgery in June,1947,and despite her chronic complaints about stomach pain over the years,the device was not found until an X-ray in March,1953,when it was removed.Her $12,000 award was reversed by the Supreme Court of West Virginia because she was outside the statutes of limitation when she filed and could not prove that the doctor concealed knowledge of his error.This “guilty knowledge”requirement would disappear over the years,and the “discovery rule” by which statutes of limitation run from the date of discovery of the wrongdoing rather than the date of the occurrence has become the rule in most states,allowing res ipsa loquitur to take its rightful place.

Forty years later,leaving a medical device in a patient was medical malpractice,provable without expert testimony,in almost every jurisdiction.Virginia has limited the rule.“In Virginia the doctrine,if not entirely abolished,has been limited and restricted to a very material extent.” It may be utilized only when the circumstances of the incident,without further proof,are such that,in the ordinary course of events,the incident could not have happened except on the theory of negligence....”

A contention of res ipsa loquitur commonly is made in cases of commercial airplane accidents.It was part of the commentary in a train collision in California in 2008: “If two trains are in the same place at the same time,someone was negligent.”