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Eckersley v. Reichel3/11/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Patricia and Donald Eckersley's young son died from complications of a streptococcal infection. The Eckersleys sued Doctor Steven Reichel and the Lompoc District Hospital (hospital) for medical malpractice. The jury found that Dr. Reichel and the hospital were not negligent. The Eckersleys moved for new trial, asserting juror misconduct and instructional error, but the court denied the motion.
Patricia and Donald Eckersley appeal from the judgment in favor of Dr. Reichel and the hospital. They contend the court erred by denying their motion for new trial. We affirm.
FACTS
Mrs. Eckersley brought her five-year-old son Austin to the emergency room of the hospital the evening of October 28, 1999, because he was vomiting, had diarrhea, a headache, chills and fever. Although Austin looked pale, ill, and mildly dehydrated, he was constantly alert, answered questions correctly, and was able to sit up on his own according to Dr. Reichel. Doctor Reichel ordered laboratory tests to determine the cause of Austin's illness. The laboratory tests and symptoms indicated that Austin probably had viral gastroenteritis.
After giving him fluids and medications, Austin's condition improved. According to Dr. Reichel, Austin said he felt better. Doctor Reichel called Austin's pediatrician, Dr. George T. Robertson, to assess whether it might be appropriate to give Austin an antibiotic, given the fact that blood tests showed a "low/normal white count" with elevated bands. The elevated bands tend to indicate that the body's immune system is fighting an infection. Doctor Robertson told Dr. Reichel it did not seem that Austin was very sick and he did not recommend antibiotics. Doctor Reichel asked Dr. Robertson whether he could see Austin the next morning. Doctor Robertson said yes.
Doctor Reichel told Mrs. Eckersley that Austin appeared to have a stomach flu, but said he had some concerns about his white blood count. He repeatedly told Mrs. Eckersley to watch Austin carefully and to see Dr. Robertson in the morning. Doctor Reichel also told her to "bring him back here if there's any questions or concerns or problems of any type at any time." In addition, Dr. Reichel gave her written instructions which advised her to follow up on Austin's care. Mrs. Eckersley testified that Dr. Reichel told her, "You need to do a follow- up call Dr. Robertson. Make an appointment with him to bring your son in" the next morning.
The next morning, Austin's condition had not significantly improved. Mrs. Eckersley testified that he was "shivering really bad." She called Dr. Robertson's office shortly after 9:00 a.m. but decided not to bring Austin in after discussing the matter with her husband.
Around 9:45 that morning, the hospital obtained preliminary blood culture results. The results suggested Austin might have a bacterial infection. Doctor Debra Weinstein, who was on duty at the hospital that morning, called Dr. Robertson to report the preliminary laboratory results. At 9:50 a.m., she called the Eckersleys. The Eckersleys did not answer the telephone, so she left a message stating, "It's pretty important. . . . So as soon as you get this message, please give me a call. . . ." Although they were home, the Eckersleys did not hear the telephone ring.
Doctor Weinstein was unable to reach alternative numbers and planned
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