Fish v. Los Angeles Dodgers Baseball Club

*623 Opinion

Plaintiffs Marvin Fish and Francine R. Fish appeal from a judgment in favor of defendants Los Angeles Dodgers Baseball Club and Glen E. Jones, M.D., upon a jury verdict. The complaint was for damages for the wrongful death of plaintiffs’ 14-year-old son, Alan, who died following his being struck by a line-drive foul while watching a Dodger baseball game. Originally, other defendants were named, 1 but they were dismissed prior to submission of the case to the jury. The complaint asserted liability against the Dodgers on two theories: (1) failure to provide, the decedent “with a safe place to witness the ball game” (first cause of action), and (2) providing emergency medical services to decedent in a negligent manner (second cause of action). Defendant Glen E. Jones, M.D., the doctor who operated the emergency medical facility at the stadium, was also named in the malpractice cause of action. The cause of action against defendant Dodgers for failure to provide a safe place to witness the baseball game was disposed of by the court granting a motion for nonsuit as to that cause of action. The case was submitted to the jury solely on the malpractice issues, against Dr. Jones as the allegedly negligent doctor, and against defendant Dodgers as the alleged principal responsible for the negligence of its agent, Dr. Jones. No issue is raised on this appeal as to the propriety of the nonsuit; the sole issue relates to the sufficiency of the instructions with respect to causation between Dr. Jones’s alleged negligence and the death of plaintiffs’ decedent.

Facts

Inasmuch as plaintiffs were denied instructions requested by them relating to their theory of the case, we must view the evidence in the light most favorable to their contentions.

“Each party is entitled to have his theory of the case submitted to the jury in accordance with the pleadings and proof (Cole v. Ridings, 95 Cal.App.2d 136, 144 [212 P.2d 597]), and it is incumbent-upon the trial court to instruct on all vital issues involved (Jaeger v. Chapman, 95 Cal.App.2d 520, 525 [213 P.2d 404]). Viewing the evidence in the light ‘most favorable to the contention that the [last clear chance] doctrine is applicable . . . since plaintiff is entitled to an instruction thereon if the *624 evidence so viewed could establish the elements of the doctrine’ (Selinsky v. Olsen, 38 Cal.2d 102, 103 [237 P.2d 645]; Hopkins v. Carter, 109 Cal.App.2d 912, 913 [241 P.2d 1063]) . . . (Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633 [255 P.2d 795]; see also Selinsky v. Olsen, 38 Cal.2d 102, 103 [237 P.2d 645].)

Accordingly, we state as facts the version most favorable to plaintiff, though there was substantial conflicting evidence on many vital issues.

The Injury, Treatment and Death of Decedent

Plaintiffs’ decedent was struck behind and above the left ear by a hard-hit line-drive foul, at approximately 7:45 p.m., on the evening of May 16, 1970. His adult companion observed that the boy remained slumped forward with his chin on his chest, “out like a light,” for approximately one minute. Then he stretched and groaned and speaking in an unintelligible fashion. This was followed by a period during which he stuttered and was unable to speak without long pauses between words. An ice pack, furnished by someone inside the visitors’ dugout, was applied to the boy’s head. A short while later an usher came and returned with two ambulance attendants. By this time, decedent’s condition was somewhat improved, and his speech was normal.

The ambulance attendants escorted decedent to the ball park first aid station. On the way he manifested some loss of balance, “as if he was intoxicated,” but by the time he arrived, “he seemed to be walking quite normal.” Dr. Jones, who was seated in the press box at the time the foul ball was hit, saw it enter the stands, thought it was a hard-hit ball, and observed that it had struck someone. He, therefore, returned to the first aid station. He arrived there shortly before decedent. Upon decedent’s arrival, Dr. Jones was informed that decedent had been hit in the head by a foul ball. He took decedent’s pulse, felt the left side of his head, and examined the site where the ball had hit. Thereupon, with a flashlight, he examined decedent’s eyes, ears and throat and he also tested decedent’s reflexes with his hand. Dr. Jones did not take decedent’s blood pressure nor did he inquire as to the manner in which decedent had reacted after being hit; that is, Dr. Jones did not ask whether decedent had been rendered unconscious or dazed, nor did he inquire into decedent’s ability to speak or walk in the period immediately following the accident. Decedent was kept in the first aid room for a *625 period of approximately five minutes, he was advised that he had a bump on the head but appeared to be all right and that he could return to his seat and “resume the activities.” Decedent was not advised to restrict his activities, to return to the first aid station, or to see a doctor.

Decedent and his adult companion returned to their seats and watched the rest of the game. In the course of the remaining six innings, decedent chased another foul ball and went to the concession stand to purchase food. During this period, his speech and physical movements appeared normal. The game ended at about 10 p.m., but decedent stayed for an additional 10 minutes. During this interval, decedent proceeded to the roof of the Dodger dugout and leaned down, attempting to get someone’s attention. On the way out to the camper in which decedent had been brought to the game, he grabbed his adult companion’s arm, and commenced crying and shaking. His speech disability reappeared and he had to be helped to the camper where he lay down while being driven home, a drive which took approximately 40 minutes.

Upon decedent’s arrival at home, plaintiffs were advised of the incident. They promptly took decedent to- Citizens Emergency Hospital where they were advised that medical attention would not be available for about an hour. At this time decedent was pale and limp and “appeared to have little control of his muscular part of his body.”

Plaintiffs then drove to Cedars-Sinai Medical Center, which took somewhat less than half an hour. Upon arrival at Cedars, decedent was wheeled into the reception area in a wheel chair. He was slumped in the chair with his head down. At the reception desk, he vomited. Plaintiffs were advised that the hospital could not give the boy medical attention. He was then driven to Childrens Hospital, some two to four blocks distant. Decedent was admitted to the emergency clinic at Childrens Hospital at about 11:50 p.m. Decedent was treated in the emergency clinic until 1:30 a.m., May 17, when he was transferred to a holding ward, a unit which provides treatment less intensive than that of an intensive care unit but more intense than a regular ward. At approximately 2:30 a.m., the presence of Dr. Johnson, a neurosurgeon, was procured. He examined decedent and undertook his care. At 3:15 a.m., decedent was placed in a regular ward, and a drug for the control of cerebral edema was administered. At 5 a.m., decedent was again seen by Dr. Johnson who noted he was “becoming more alert” and made no change in the treatment. By 10 a.m., when Dr. Johnson again examined *626 decedent, a deterioration in his condition was noted to the point that performance of a cranial angiogram 2 was indicated. When the angiogram was completed about 12:20 p.m., it revealed the existence of a mass in the left parietal area of decedent’s brain. Dr. Johnson then placed decedent in an intensive care unit, obtained plaintiffs’ consent to perform a craniotomy, but did not in fact perform such surgery. At 9:30 p.m., May 17, decedent suffered a convulsion which rendered him decerebrate and made his condition terminal; death followed on May 20 at 1 p.m., when artificial support systems were turned off.

An autopsy was conducted. It revealed that when decedent was struck by the baseball, he suffered, a hairline fracture of the outer plane of his skull and a depressed fracture of the inner plane, portions of which protruded through the covering membrane and into the brain tissue. A small artery in the covering tissue was severed and brain tissue was contused and lacerated by the displaced portions of the fractured skull, disrupting blood vessels therein and inducing intracerebral hemorrhage. This intracerebral bleeding continued from approximately the time of the accident to at least until the time decedent suffered the convulsion. As the brief of respondent Jones states, the medical cause of decedent’s death “was the failure to contain the intracerebral hemorrhage and thus to eliminate or reduce the buildup of pressure prior to the time that he became decerebrate.”

The Evidence of Negligence

The testimony of plaintiffs’ two experts clearly supported plaintiffs’ claim that Dr. Jones had not treated decedent in accordance with the applicable standard of care. Dr. Woods was of the opinion that the standard of care required Dr. Jones to obtain full information concerning the patient’s reaction immediately following the injury and upon ascertaining that symptoms of the nature above recited had been manifest, to send the patient to a hospital facility where he would be immobilized under- close observation and X-ray and other hospital diagnostic techniques could be applied. Dr. Coulter was also of the opinion that Dr. Jones did not meet the standard of care. He testified that the standard of care required that a doctor make an inquiry to ascertain whether or not there was a history of unconsciousness and upon ascertaining that unconsciousness had ensued, “[s]end that patient in an *627 ambulance to the nearest facility, with X-rays, so that X-rays of the skull might be obtained and the patient examined and admitted for 24 hours of observation in the hospital.”

The Causation Evidence

Plaintiffs’ two medical experts gave testimony upon which plaintiffs relied to show that Dr. Jones’ negligence was a legal cause of decedent’s death. Both doctors expressed the opinion that Dr. Jones’ failure to immobilize decedent during the period immediately following his injury, as a result of which he engaged in normal activities, probably prevented the hemorrhage from spontaneously stopping as a result of the body’s normal healing processes. Dr. Woods testified that if decedent “had been, hypothetically, put at rest after arriving at the first aid station, instead of being allowed to move about freely,” it was “more likely than not” that the bleeding would “probably have stopped prior to the demise,” and that “if the bleeding had stopped during that period where he had no symptoms, and the intracranial pressure hadn’t started to build up, then he’d be alive and running around today” without “resultant paralysis or any untoward sequelae.”

Dr. Coulter stated his medical opinion that “if the patient had been at bed rest immediately after being seen in the first aid station,” the bleeding would be “if not stopped minimized.” On cross-examination by counsel for defendant Jones, the following question and answer “Q. Am I correct in understanding that you are unable to formulate a medical opinion that the bleeding would have stopped? A. No. You are incorrect in that assumption.”

Reasons were given in support of these opinions. These included the fact that “physical activity of the body would tend to prevent proper coagulation of blood at the injured portion of the vein,” and “interfere with the clotting mechanism,” by “dislodging of already formed clots . . . through changes of position, particularly in jarring of the head.” In addition, the lowering of the patient’s head “impairs the return of blood from the head,” increasing intracranial pressure.

The effect of the testimony of plaintiffs’ doctors in this respect was that Dr. Jones’ failure to immobilize decedent probably resulted in his condition changing from one where he would recover spontaneously to one where he could only survive as the result of emergency surgery.

*628 Plaintiffs’ experts further testified that even if the hemorrhage grew to potentially lethal proportions, the opportunity to diagnose such progression and perform the necessary surgery would have been substantially enhanced and probably would have changed the outcome. As Dr. Coulter put this: “A. I would expect a lesser chance of intracerebral bleeding of occurring. I would expect a lesser chance of it growing to a size which required emergency surgery. And if it did, under observation, with a longer period of observation and monitored vital signs, one could proceed with studies such as angiography and surgery much earlier, and thus affecting the outcome. And with those things in mind, I would have to say yes, it would have. Q. It would have changed the outcome? A. It would have changed the outcome.”

The same view was expressed by Dr. Woods when he gave an answer as follows: “Well, there is an increased chance that it would have stopped from the position in the bed rest alone. However, if it developed, it would be developing under closer observation, and the surgery and tests would have been carried out sooner, which adds the—hand-in-hand with it goes the increased chance of survival.”

In cross-examination, counsel for defendant Jones elicited opinions from both Dr. Coulter and Dr. Woods that after decedent arrived at Childrens Hospital, there was still time to diagnose his need for emergency surgery and by performing such surgery to relieve the hemorrhage. Dr. Woods testified in this respect as follows: “Q. And in your opinion, there was an opportunity to relieve that hemorrhage at Childrens Hospital? A. Correct.”

The cross-examination of Dr. Coulter in this respect was much more extensive. He testified as follows: “Q. In your opinion, at the time the young man was first at Children’s Hospital, there were indications for angiography. Angiography would have made surgery necessary; and surgery would have saved his life, correct? A. That is basically my opinion, yes, sir. Q. And thereafter, the medical staff at Children’s Hospital had repeated findings on neurological examination brought to their attention that indicated throughout the night that angiography was indicated, and yet they did not follow up on those findings; is that correct? A. That’s correct. Q. Is it your opinion, then, that in fact, the medical staff at Children’s Hospital had repeated opportunities to obtain information which would have led to surgery and survival over the course of the first several hours that the young man was in the hospital, *629 but that they failed to follow up on it? A. That’s my inference from reading these records, yes, sir.”

Dr. Coulter’s testimony thus suggested, though he did not directly so state, that the failure of the staff at Childrens Hospital to detect the necessity for and perform the emergency surgery which would have led to survival was negligent.

The Agency Evidence

The evidence bearing upon the liability of defendant Dodgers for the negligence of Dr. Jones tended to indicate that an independent contractor relationship existed between them. Plaintiffs relied more upon the claim of ostensible agency based upon Dr. Jones’ having been held out as the doctor through whom defendant Dodgers provided emergency medical care. It is unnecessary to discuss this evidence, however, inasmuch as defendant Dodgers does not claim that it was insufficient to sustain a verdict holding them liable for Dr. Jones’ negligence.

The Oral Argument

During the course of oral argument, counsel for defendant Jones exploited the cross-examination testimony of plaintiffs’ experts that decedent could have been saved by emergency surgery at Childrens Hospital. The first reference to this was as follows: “. .. The burden is on the plaintiffs to establish that if Dr. Jones had done what they claim he should have done, which was simply hospitalize the boy for observation, that he would have survived; and that except for Dr. Jones’ failure to hospitalize him, he would have survived. In other words, unless they can show that at the time Alan Fish arrived at Childrens Hospital, it was too late to do anything for him, then the failure of Dr. Jones, if it was a negligent failure, to hospitalize him earlier, had nothing to do with his death.—” ,

Counsel for plaintiffs objected to this statement and requested that the court admonish the jury to disregard it. The court declined to do so.

In further argument, counsel for defendant Jones stated:

*630 “We know that the contention is that Alan Fish would have survived if he had been hospitalized immediately after he had been seen in the first aid station. But we also know that both Dr. Woods and Dr. Coulter have testified that there was no reason for him not to survive if surgery had been performed any time within a period of many hours after he arrived at Childrens Hospital. And so the point that I am trying to make here is the plaintiffs, according to their own expert testimony, have been completely unable to prove that but for the negligence of Dr. Jones, Alan Fish would have survived, because in fact, when he arrived at Childrens Hospital, although it was at 11:50 in the evening, and they contend that he should have been hospitalized at about eight in the evening, their experts have testified he was in no imminent peril; he was in no immediate danger of dying; that at that time, or according to Dr. Woods, all the way up until 9:30 on Sunday evening, when he had the convulsion and became decerebrate, there was no reason to suspect that surgery would not have been successful in saving his life.

“Dr. Coulter has testified to the same thing, that when he arrived at Childrens Hospital, it was not too late to save his life. There was no significant chance that surgery would be unsuccessful. In his opinion, if surgery had been performed at that time, or over a period of many hours thereafter, he would anticipate a virtually complete recoveiy.”

In amplification of this argument, counsel for defendant Jones further stated: “You will recall that Dr. Coulter testified that he felt, under the circumstances, the personnel at Childrens Hospital probably should have obtained an angiogram when the young man arrived there—and just briefly, again, this would have been the study where they injected some dye in the blood circulating to the brain; take a picture and see what abnormalities showed up—and in his opinion, the abnormalities that would have showed up at that time would have been basically the same abnormalities that showed up when the angiogram was done some 11 or 12 hours later, somewhere in that vicinity. Or to put it the other way around, that he does not think that there was any significant—or would have been any significant difference in the appearance of the brain injury on the angiogram over that first period of about 12 hours that he was in the hospital; and that based on the appearance of that angiogram, there *631 was no reason at all to believe that he would not have survived with relatively minimal residual effects if surgery had been performed there. And I think you will recall that both Dr. Woods and Dr. Coulter testified that in their opinion, surgery was indicated on the basis of the angiogram.”

The Causation Instructions

In view of the above argument having been made, counsel for plaintiffs requested that the court instruct in accordance with BAJI No. 3.77 (Concurring Causes), BAJI No. 3.79 (When Third Party’s Intervening Negligence Becomes Superseding Cause), and BAJI No. 14.66 (Additional Harm Resulting From Original Injury). These requests were denied, and the only instruction given with respect to causation was BAJI No. 3.76, modified to read as follows; “A legal cause of a death is a cause which is a substantial factor in bringing about the death.”

The jury was instructed on Friday, September 21, and retired about 11 a.m. They did not reach a verdict by the end of the day. On Monday, September 24, about 11:30 a.m., the jury sent the following note to the court:

*632 The following written response was given to the juiy by the judge at 1:50 p.m.: