O'CONNOR v. Bloomer

California Court of Appeal Feb 27, 1981 No. Civ. 58671Published

Before: Hastings

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Holding. The court held that summary judgment was properly granted in favor of assistant surgeons because they lacked responsibility for the availability of the surgical equipment and expert testimony established their conduct met the standard of care. Furthermore, the doctrine of res ipsa loquitur did not apply because the defendants lacked exclusive control over the instrumentality that caused the injury.

Issues

Whether there was a triable issue of fact regarding the assistant surgeons' responsibility for the availability of the replacement valve.
Whether expert medical testimony is required to establish the duties and responsibilities of assistant surgeons in heart surgery.
Whether the doctrine of res ipsa loquitur precludes summary judgment when a defendant can demonstrate a lack of exclusive control over the instrumentality of injury.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The extent of the duties and responsibilities of assistant surgeons in a heart surgery is not a question that is within the common knowledge of laymen.”

“The declarations supporting the motion for summary judgment clearly proved that respondents had no responsibility concerning the availability of the Hancock valve.”

“Certainly a defendant should not be required to stand trial with others when he can excise himself from the case by a successful motion for summary judgment.”

Opinion

HASTINGS, J.

Donald R. O’Connor, plaintiff and appellant, appeals from a summary judgment rendered in favor of William E. Bloomer, M.D., and Marshall E. Redding, M.D., defendants and respondents.

On December 12, 1975, appellant underwent surgery for an aortic valve replacement at Memorial Hospital Medical Center of Long Beach. (Memorial Hospital.) Dr. Phillip Wright was the surgeon in charge of this procedure. Respondents assisted Dr. Wright in the surgery and acted exclusively under his direction and control.

Prior to surgery, Dr. Wright explained to appellant that there were two types of replacement valves which were available, the No. 29 Hancock (porcine) valve and the No. 29 Bjork Shiley valve. Appellant chose to have the Hancock valve inserted.

Dr. Wright commenced surgery and removed appellant’s existing aortic valve. The container supposedly containing the Hancock valve was then opened but to everyone’s surprise it was empty. After a brief investigation it was determined that the only available replacement valve was the Bjork Shiley valve. Dr. Wright made the decision to use this valve as a substitute valve and the surgery was completed.

Appellant alleged in his lawsuit for personal injuries against Memorial Hospital, Dr. Wright and respondents that he was damaged as a proximate result of this substitution because the Bjork Shiley valve was “outdated, inefficient and dangerous.”

Memorial Hospital in its answers to interrogatories from appellant took full responsibility for the error.

[389]

Dr. Wright in his answer to appellant’s interrogatories stated that respondents as assistant surgeons did not have any responsibilities whatsoever prior to surgery with regard to the valve and never came into contact with it. Their only responsibilities were to assist him at the time of surgery and he admitted that when the valve was discovered to be missing it was his responsibility to decide what to do. The only responsibilities respondents had according to Dr. Wright were to dissent or concur in his decision to use the replacement valve and both concurred.

O'CONNOR v. Bloomer

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HASTINGS, J.

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