GRACE T. LEONARD, Appellant, v. WATSONVILLE COMMUNITY HOSPITAL et al., Respondents, 47 Cal. 2d 509

GIBSON, C. J. A scissors-shaped metal instrument about 6 inches long, called a Kelly clamp, was left in plaintiff’s abdomen when an operation was performed on her at defendant hospital. The operation was commenced by Doctors Lacy and Slegal. Kay Pogatschnik, who was an employee of the hospital, acted as surgical nurse. Doctor Eiskamp assisted in a part of the operation at the request of Doctor Lacy. Plaintiff" was unconscious during the entire operation, which lasted approximately five hours.

She was in considerable pain during the 10 days she remained in the hospital following the operation, and the pain persisted for several months after she returned home. X-ray pictures taken about six months after the operation revealed a clamp lodged in the upper right quadrant of her abdomen. The clamp was removed, and plaintiff brought this action to recover damages from the hospital, the doctors and the surgical nurse. At the close of plaintiff’s ease motions for nonsuit were "granted as to Eiskamp, Pogatschnik and the hospital, and plaintiff has appealed from the ensuing judgment.

The questions presented are whether an inference of negligence was raised under the doctrine of res ipsa loquitur and whether, if such an inference arose, it was dispelled as a matter of law. Evelyn Craig, who was superintendent of the hospital, and defendants Lacy, Slegal and Eiskamp were called by plaintiff to testify under

section 2055 of the Code of Civil Procedure, which provides that in a civil action a party may call and examine an adverse party. The testimony of Lacy, who was in charge of the operation, may be summarized as follows: He scheduled the operation after deciding that an exploratory examination of the upper right quadrant of plaintiff’s abdomen should be made. The hospital assigned Pogatschnik to act as surgical nurse, furnished all equipment and instruments, and charged plaintiff for the use of the room and for the services of the nurse.

The operation began with Lacy and Slegal making an incision from plaintiff’s navel upwards, exposing her gall bladder, which was diseased. About 40 minutes after the operation was begun, Lacy requested Eiskamp, who had been performing surgery in another part of the hospital, to look at plaintiff’s gall bladder. Eiskamp made a visual inspection and recommended that the gall bladder be removed. After Eiskamp left the room, Lacy and Slegal discovered a “mass” in the sigmoid colon, which appeared to be cancerous. Lacy again consulted Eiskamp, who agreed that the mass should be removed and offered to help.

The doctors decided not to operate on the gall bladder, and, while Lacy began to close the upper half of the incision, Eiskamp and Slegal prepared to remove the mass, which was in the lower left quadrant. None of Eiskamp’s work was performed in the upper portion of plaintiff’s abdomen, and he left the room before final closure of the incision. During the operation Lacy and Slegal used about 18 Kelly clamps which are uncurved scissors-shaped instruments. Eiskamp did not use anything but curved clamps. Lacy paid Slegal his fee but never received a bill from Eiskamp for his services.

Lacy further testified that the surgical nurse keeps a set of instruments on a tray very close to the surgical field and that one of her principal functions is to hand instruments to the doctor and take them back from him. No request for an instrument count was made by Lacy. The practice of hospitals generally is to maintain a sponge count before closure of an incision and to account for the needles used in suturing. This practice is followed by the nurses at defendant hospital. Slegal’s testimony substantially confirmed that of Lacy as to the sequence of events in the operating room.

He said that Eiskamp did not take

part in closing the upper portion of the incision and left before final closure of the abdomen. Eiskamp testified that no Kelly clamps were used in his part of the operation, that he “had nothing to do with the gall bladder” and that in order to speed the operation he worked with Slegal on the tumor in the lower left quadrant of the abdomen. Superintendent Craig testified that surgical instruments are furnished by the hospital, that they are placed in sterile packs containing a specified number and that she believed there are 18 Kelly clamps in a pack.

After an operation all instruments are taken directly from the operating room, cleaned and reassembled into packages by a nurse or some other hospital employee. At the time of plaintiff’s operation no one person was designated as being responsible for collecting and reassembling the instruments, and none of the hospital employees reported that any instrument was missing. Hospitals in the area “have no established practice of instrument counting either before or after surgery.” Sponges and needles are usually counted, and an instrument count is made if requested by the surgeon.

When a foreign object is unintentionally left in a patient’s abdomen it is ordinarily the result of the negligence of someone. (Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409].) And where a patient receives unusual injuries while unconscious, all of the persons who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. (Ybarra v.

Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].) The evidence is sufficient to raise an inference of negligence under the doctrine of res ipsa loquitur as to Biskamp, Pogatschnik and the hospital. Biskamp assisted in the operation; at one time or another during the operation the control of the instrument left in plaintiff’s body was in the hands of the nurse; the hospital employed the nurse and furnished and reassembled the instruments. This places upon them the burden of initial explanation. (Ybarra v.

Spangard, supra.) Plaintiff contends that the inference of res ipsa loquitur was not dispelled as a matter of law and that therefore the court erred in granting the motion for a nonsuit. The same test is applicable in determining when the res ipsa loquitur inference is dispelled as a matter of law as in deciding when any other inference is conclusively rebutted. (See Rose v. Melody Lane, 39 Cal.2d 481, 487 [247 P.2d 335]; Leet v. Union Pac. R. R.

Co., 25 Cal.2d 605, 621-622 [155 P.2d 42, 158 A.L.R. 1008].) It has long been the rule in this state that a nonsuit may be granted only when, disregarding conflicting evidence, giving to the plaintiff’s evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, the court properly determines that there is no substantial evidence to support a verdict in favor of the plaintiff. (Seneris v.

Haas, 45 Cal.2d 811, 821 [291 P.2d 915]; Estate of Caspar, 172 Cal. 147, 150 [155 P. 631].) There is, however, a qualification on this broad general rule. It is settled that where the evidence raises an inference that a fact exists, and either party produces evidence of the nonexistence of the fact that is clear, positive, uneontradieted and of such a nature that it cannot rationally be disbelieved, the nonexistence of the fact is established as a matter of law. (See Blank v.

Coffin, 20 Cal.2d 457, 461 [126 P.2d 868].) In these circumstances the inference is dispelled as a matter of law, and, if the fact inferred is necessary to establish an essential element of the plaintiff’s case, a nonsuit or directed verdict is proper. (Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64 [77 P.2d 1059] [directed verdict]; Crouch v. Gilmore Oil Co., Ltd., 5 Cal.2d 330 [54 P.2d 709] [nonsuit] ; Ceranski v. Muensch, 60 Cal.App.2d 751 [141 P.2d 750] [directed verdict]; Johnston v.

Black Co., 33 Cal.App.2d 363 [91 P.2d 921] [insufficiency of evidence].) The testimony which defendants claim dispels the inference of res ipsa loquitur as a matter of law was elicited from witnesses called under

section 2055 of the Code of Civil Procedure, and plaintiff contends that such evidence cannot be used in ruling on a nonsuit to dispel an inference on which plaintiff relies.

Section 2055 provides in effect that a party to a civil action may be examined as if under cross-examination by the adverse party and that the party examining such witness shall not be bound by the witness’ testimony and may rebut it by other evidence. Before

section 2055 was enacted, a litigant who called an adverse party to testify found that the witness was treated as his own and that his examination was restricted by the rules applicable to direct examination. (See Smellie v. Southern Pac. Co., 212 Cal. 540, 555 [299 P. 529].) This rule was changed by

section 2055 so that testimony elicited by a plaintiff under this

section is not treated as testimony of his own witnesses but as testimony obtained under cross-examination of the defendant’s witnesses. (Smellie v. Southern Pac. Co., 212 Cal. 540, 556 [299 P. 529]; Figari v. Olcese, 184 Cal. 775, 782 [195 P. 425, 15 A.L.R. 192].) It is clear, however, that all such testimony is evidence in the case and that the provision in the

section that a party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, “but, merely, as it declares, that the party calling such witness shall not be concluded from rebutting his testimony or from impeaching the witness.” (Figari v. Olcese, 184 Cal. 775, 782 [195 P. 425,15 A.L.R. 192] ; see Smellie v. Southern Pac. Co., 212 Cal. 540, 559 [299 P. 529]; Dempsey v. Star House Movers, Inc., 2 Cal.App.2d 720, 722 [38 P.2d 825] ; 13 Cal.L.Rev. 302.) It has been squarely held that an inference upon which a plaintiff relies may be completely dispelled .as a matter of law by evidence given by witnesses called under

section 2055. (Crouch v. Gilmore Oil Co., Ltd., 5 Cal.2d 330 [54 P.2d 709].) In the Crouch case an inference that one Smith was an agent of defendant arose from proof of the fact that the defendant’s advertising insignia was painted on trucks operated by Smith. Evidence was adduced under

section 2055 which the court found dispelled the inference as a matter of law, and it was held that a nonsuit was proper. Our decision in Crowe v. McBride, 25 Cal.2d 318 [153 P.2d 727], is not inconsistent with the holding in the Crouch ease. As will be seen from an examination of the opinion in Crowe v. McBride, the point involved was whether the evidence was sufficient to present a question for the trier of fact, and in this connection we held that the testimony of the defendant given pursuant to an examination under

section 2055 was evidence in the case and could be used to establish a cause of action against him. The use of evidence elicited under

section 2055 to dispel an inference was not involved. Plaintiff, however, relies upon the following language in Crowe v. McBride, supra: “In considering the propriety of the nonsuit, we must accept the evidence most favorable to plaintiffs and disregard that which is unfavorable. The testimony of the defendant, who was called to testify under

section 2055 of the Code of Civil Procedure, falls within this rule and is to be treated as evidence in the case insofar as it is favorable to plaintiffs.” This language must, of course, be read in the light of the facts of the case and the question presented for determination. It is correct as a general proposition, and it should not be given a strained

interpretation to reach a conclusion on a matter not presented to or considered by the court. Cases involving the use of evidence adduced under

section 2055 to dispel a presumption must be distinguished from those involving inferences. Generally speaking, it may be said that a presumption is dispelled as a matter of law only when a fact which is wholly irreconcilable with it is proved by the uncontradieted testimony of the party relying on it or of such party’s own witnesses, (Mar Shee v. Maryland Assur. Corp., 190 Cal. 1, 9 [210 P. 269] ; Steward v. Paige, 90 Cal.App.2d 820, 825 [203 P.2d 858]; see Chakmakjian v. Lowe, 33 Cal.2d 308, 313 [201 P.2d 801]; Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 70 [77 P.2d 1059]; Smellie v. Southern Pac.

Co., 212 Cal. 540, 552 [299 P. 529]; cf. Mundy v. Marshall, 8 Cal.2d 294, 296 [65 P.2d 65]; Levin v. Brown, 81 Cal.App.2d 913, 917 [185 P.2d 329].) Accordingly, it is the general rule that a presumption favorable to a plaintiff cannot be so dispelled by the testimony of a defendant given pursuant to

section 2055 because a defendant called under that

section is not treated a,s the plaintiff’s witness. (Smellie v. Southern Pac. Co., 212 Cal. 540, 559 [299 P. 529]; Lopez v. Knight, 121 Cal.App.2d 387, 390-391 [263 P.2d 452]; Green v. Uarte, 87 Cal.App.2d 75, 78-79 [196 P.2d 63]; see Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 70 [77 P.2d 1059].) On the other hand, as we have seen, an inference can be dispelled as a matter of law by evidence produced by either party. It follows from what has been said that the testimony of a witness called by a plaintiff under

section 2055 may be used to dispel an inference upon which the plaintiff relies, provided the evidence is clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved.

It is particularly appropriate to allow such testimony to be used to rebut the inference in cases like the present where plaintiff, because she was unconscious while receiving the treatment that resulted in her injuries, is given the benefit of a liberalized test for res ipsa loquitur, and all persons who had any control over her body or the instrumentalities which might have caused her injuries are required to meet the inference of negligence by giving an explanation of their conduct. If in these circumstances evidence given by witnesses under

section 2055 establishes as a matter of law that one of the defendants is free from negligence, the prima facie case against that defendant based on the inference should fall, and plaintiff’s position with respect to that defendant should be the same as if she had failed to prove all the facts necessary to raise the inference. A witness may, of course, be disbelieved if there is any rational ground for doing so, and the interest of a party in the result of a case will in some circumstances justify the trier of fact in disregarding his testimony. (See Hamilton v.

Abadjian, 30 Cal.2d 49, 53 [179 P.2d 804] ; Hicks v. Reis, 21 Cal.2d 654, 659-661 [134 P.2d 788]; Blank v. Coffin, 20 Cal.2d 457, 461-462 [126 P.2d 868].) There are situations, however, where the interest of a party in obtaining a judgment favorable to himself will not render all of his testimony subject to disbelief.

Por example, where part of a defendant’s testimony is harmful to him but favorable to a codefendant, as where it tends to show that the witness is. liable or makes it more difficult for him to establish his own lack of fault, that portion of his testimony may be used to rebut an inference unfavorable to the codefendant provided there is nothing to indicate collusion or any other reason for disbelieving the testimony.

The evidence as to Eiskamp’s participation in the operation consisted of the testimony of Lacy, Slegal and Eiskamp, and it was clear and uneontradicted to the effect that Biskamp was not responsible for leaving the clamp in plaintiff’s abdomen. This testimony did not in any way tend to benefit Lacy or Slegal but, to the contrary, was disadvantageous to them because the exoneration of one defendant would have the necessary effect of increasing the possibility of liability on the part of each of the other defendants.

The record indicates no rational ground for disbelieving their testimony, and we hold that the inference raised against Biskamp under the doctrine of res ipsa - loquitur was dispelled as a matter of law. The evidence, however, does not compel the conclusion that the inference of negligence on the part of the surgical nurse and the hospital has been dispelled. The testimony relied upon to absolve them was given by Craig, who was a hospital employee and who, in view of the advantages to her of maintaining a favorable relationship with the hospital, obviously had an interest in the outcome of the case.

She likewise had an interest in the litigation as to the nurse because the hospital, as employer, would be liable for acts of the nurse within the scope of her employment. Craig’s testimony could therefore be disbelieved by the trier of fact. (See Hamilton v. Abadjian, 30 Cal.2d 49, 53 [179 P.2d 804]; Hicks v. Reis, 21 Cal.2d 654, 659-661 [134 P.2d 788]; Blank v. Coffin, 20 Cal.2d 457, 461-462 [126 P.2d 868].) Moreover, if Craig’s testimony were accepted by the trier of fact as being true, it is not of the character required to dispel the inference of negligence raised against the hospital and the nurse.

As we have seen, Craig testified that it was the practice of hospitals in the area to count sponges and needles as part of the operative procedure, and with respect to “other implements” she stated there was “no established practice of instrument counting either before or after surgery.” Even if we assume she intended to say that it was the practice not to count instruments, this evidence would not conclusively establish that the hospital and nurse were free from negligence.

These defendants seek to avoid liability on the theory that they were required to exercise only that degree of skill employed by other hospitals and nurses in the community. It is a matter of common knowledge, however, that no special skill is required in counting instruments. Although under such circumstances proof of practice or custom is some evidence of what should be done and may assist in the determination of what constitutes due care, it does not conclusively establish the standard of care. (Cf. Ales v. Ryan, 8 Cal.2d 82, 100 [64 P.2d 409]; Barham v. Widing, 210 Cal. 206, 216 [291 P. 173]; Anderson v.

Stump, 42 Cal.App.2d 761, 765 [109 P.2d 1027]; Inderbitzen v. Lane Hospital, 124 Cal.App. 462, 467 [12 P.2d 744, 13 P.2d 905].) “General negligence cannot be excused on the ground that others in the same locality practice the same kind of negligence.” (Ales v. Ryan, 8 Cal.2d 82, 100 [64 P.2d 409].) We cannot say as a matter of law that there was no duty on the part of the hospital and nurses to keep an instrument count in order to assist the surgeon in determining whether all instruments used had been removed from the patient before final closure.

The judgment is affirmed as to defendant Eiskamp and is reversed as to defendants Pogatschnik and Watsonville Community Hospital. Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred. The case against Lacy and Slegal was settled after the nonsuits were granted as to the other defendants.

Section. 2055 of the Code of Oivil Procedure provides: “A party to the record of any civil action or proceeding or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent, member, agent, employee, or managing agent of any such party or person, or the agent, officer or employee of a municipal corporation which is a party to the action or proceeding, may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses.

The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence. Such witness, when so called, may be examined by his own counsel, but only as to the matters testified to on such examination. ’ ’ In an

article entitled “Some Reeent Cases in Evidence,’’ 13 Cal.L.Rev. 285, 302 (1925), Professor A. M. Kidd, in commenting on

section 2055, said: “The

section states that a party calling such adverse party shall not be bound by his testimony, as if a party were ever bound by the testimony of any witness. What was meant was that an adverse party called as a witness might be examined and impeached to the same extent as the ordinary witness.’’ There is a recognized exception to the general rule where evidence of the opposite party is absolutely conclusive, as for instance, where the presumption of death of a person who has not been heard from in seven years is dispelled by production of the person in court. (See Engstrom v. Auburn Auto.

Sales Corp., 11 Cal.2d 64, 70 [77 P.2d 1079]; Smellie v. Southern Pac. Co., 212 Cal. 540, 552 [299 P. 529].) The general rule also is subject to the qualification that where testimony of the party relying on a presumption or of his witnesses is the product of mistake or inadvertence, such testimony will not operate to dispel the presumption. (See Mar Shee v. Maryland Assur. Corp., 190 Gal. 1, 9 [210 P. 269].)