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Gannon v. Elliot9/30/1993
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
No. C013128
1993.CA.41947 ; 19 Cal. App. 4th 1; 23 Cal. Rptr. 2d 86
Filed: September 30, 1993.
BETTY L. GANNON, PLAINTIFF AND APPELLANT,
v.
WILLIAM A. ELLIOT, DEFENDANT AND RESPONDENT.
Appeal from a judgment of the Superior court of Nevada County. Super. Ct. No. 40041. Hon. Carl F. Bryan, II, Judge.
Paul L. Beeman, Beeman & Beeman for Plaintiff and Appellant.
Barry A. Vogel, Stephen J. Mackey, Donahue & Callaham for Defendant and Respondent.
Davis, J.; Raye, Acting P.J., and Sims, J., Concurring.
Davis
DAVIS, J.:
In this medical malpractice action involving a foreign object left in plaintiff's right hip following surgery, plaintiff appeals from a judgment in favor of the surgeon, William A. Elliot, M.D. Plaintiff claims the trial court erred prejudicially when it foreclosed the jurors from using their common knowledge in evaluating the question of negligence. We agree and reverse the judgment.
BACKGROUND
Plaintiff fell and broke her right hip on December 22, 1987. The next day, defendant performed a partial right hip joint replacement on her. Plaintiff was 65 years old at the time. During the course of the operation, a gray rubber or plastic cap from a surgical instrument--measuring approximately 3cm by 1cm--was left in plaintiff's hip socket (known as the acetabulum).
Throughout 1988 and early 1989, plaintiff complained of continued pain in her right hip and limited mobility. Plaintiff sought further medical treatment and on May 1, 1989, had Dr. Thomas Voegeli perform a total right hip joint replacement. During that procedure, Dr. Voegeli found what he described as a "large foreign body" (the gray rubber cap) in plaintiff's right hip socket (acetabulum).
The difference between a total hip joint replacement and a partial one is that the natural hip socket is left intact in the partial procedure. Dr. Voegeli could not say whether plaintiff's pain following her first operation was caused by the foreign object or by the natural hip socket wearing out. Within a month of this second operation, however, plaintiff had no pain and was not on any medication. Within six months, she was ambulating normally without any aids or medication and without any pain.
Dr. Voegeli had been a residency student under defendant and considered him a friend. Dr. Voegeli concluded it was not malpractice for this particular foreign object to be in plaintiff's hip socket, although he noted that "we all have different definitions" of what constitutes malpractice.
The plaintiff's expert, Dr. John Chase, disagreed with this assessment from Dr. Voegeli. Dr. Chase opined that defendant's performance fell below the standard of care because the foreign object was "of certainly adequate size to not only be seen but also to be felt."
The defendant's expert, Dr. Keith Swanson, concluded that defendant met the standard of care because it was so unusual for the surgical instrument cap to be in the field of the actual surgery that a doctor would have no reason to suspect it being in the surgical wound. Normally, the surgeon in this type of operation is looking and feeling for rough debris like bone and cement. This cap, however, was smooth and may have felt like cartilage. Dr. Swanson concluded this was a case of "just bad luck" rat
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