Stonaker v. Big Sisters Hospital

GRAIG, J.

In an action for damages against a hospital, two nurses and a surgeon, in Ventura County, the jury were directed to return a verdict in favor of the defendants, and the plaintiff appealed from the judgment.

From such argument in the briefs as is based upon evidence- appearing in the record, as distinguished from statements of counsel, we assume that the contention as to its sufficiency to warrant submission of the ease to the jury is founded principally upon negligence in failing to examine an ether machine used during an operation, and the fact that the patient’s adenoids were removed after discovery that an excessive amount of ether had been administered.

It appears without contradiction that the hospital corporation was established and conducted as a charitable institution; that appellant employed the surgeon who performed the operation, and made independent arrangements for hospitalization. Witnesses for all of the parties were unanimous in their testimony that respondent Tillim did not furnish, assemble, inspect or prepare the ether machine for use; that it was the duty of the anaesthetist to superintend such work and to test the machine before it was used, and that proper medical practice requires it of such attendant. Typical of the evidence in this respect is that of Dr. Thomas B. Cunnane, who swore: “I think the duties are completely separated. The surgeon is responsible for the operative work only,—the results of the operation; and the anaesthetist is responsible for the life of the patient so far as the anaesthetic is concerned.”

As soon as the respondent doctor approached the table and observed an excessive flow of anaesthetic he removed the tube, applied restorative methods, and removed the patient’s adenoids. Appellant’s own witness, an expert, when asked: “Dr. Bianchi, in your opinion, did the removal of the, adenoids after this unfortunate incident assist the child or hurt the child at the time?” replied, “It may have assisted the child; . . . the removal of the adenoids might have helped to relieve the condition of the lungs.” There is nothing in the record which is indicated nor which we

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have been able to find, to the contrary, or tending in any way to charge respondent Tillim with negligence or with the commission of any act detrimental to the best interests of the patient. The cardinal rule that in an action for damages the burden of proof rests upon the plaintiff, as in other cases, requires no- citation of authority.