Docket No. L.A.

19067
Supreme Court of California

Ybarra v. Spangard
25 Cal.2d 486 (Cal. 1944) • 154 P.2d 687
Decided Dec 27, 1944

Docket No. L.A. 19067. shoulders, about an inch below his neck. Dr. Reser
then administered the anesthetic and plaintiff lost
487 December 27, 1944. *487
consciousness. When he awoke early the
APPEAL from a judgment of the Superior Court following morning he was in his hospital room
of Los Angeles County. Goodwin J. Knight, attended by defendant Thompson, the special
Judge. Reversed. nurse, and another nurse who was not made a
defendant.
Marion P. Betty and Wycoff Westover for
Appellant. Plaintiff testified that prior to the operation he had
never had any pain in, or injury to, his right arm or
Parker Stanbury, Harry D. Parker, Raymond G.
shoulder, but that when he awakened he felt a
Stanbury and Vernon W. Hunt for Respondents.
sharp pain about half way between the neck and
the point of the right shoulder. He complained to
GIBSON, C.J.
the nurse, and then to Dr. Tilley, who gave him
This is an action for damages for personal injuries diathermy treatments while he remained in the
alleged to have been inflicted on plaintiff by hospital. The pain did not cease, but spread down
defendants during the course of a surgical to the lower part of his arm, and after his release
operation. The trial court entered judgments of from the hospital the condition grew worse. He
nonsuit as to all defendants and plaintiff appealed. was unable to rotate or lift his arm, and developed
paralysis and atrophy of the muscles around the
On October 28, 1939, plaintiff consulted shoulder. He received further treatments from Dr.
defendant Dr. Tilley, who diagnosed his ailment as Tilley until March, 1940, and then returned to
appendicitis, and made arrangements for an work, wearing his arm in a splint on the advice of
appendectomy to be performed by defendant Dr. Dr. Spangard.
Spangard at a hospital owned and managed by
defendant Dr. Swift. Plaintiff entered the hospital, Plaintiff also consulted Dr. Wilfred Sterling Clark,
was given a hypodermic injection, slept, and later who had X-ray pictures taken which showed an
was awakened by Doctors Tilley and Spangard area of diminished sensation below the shoulder
and wheeled into the operating room by a nurse and atrophy and wasting away of the muscles
whom he believed to be defendant Gisler, an around the shoulder. In the opinion of Dr. Clark,
employee of Dr. Swift. Defendant Dr. Reser, the plaintiff's condition was due to trauma or injury by
anesthetist, also an employee of Dr. Swift, pressure or strain, applied between his right
488 adjusted plaintiff for *488 the operation, pulling shoulder and neck.
his body to the head of the operating table and,
Plaintiff was also examined by Dr. Fernando
according to plaintiff's testimony, laying him back
Garduno, who expressed the opinion that
against two hard objects at the top of his
plaintiff's injury was a paralysis of traumatic

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 Ybarra v. Spangard 25 Cal.2d 486 (Cal. 1944)

origin, not arising from pathological causes, and Brown v. Shortlidge, 98 Cal.App. 352 [ 277 P.
not systemic, and that the injury resulted in 134]; Moore v. Steen, 102 Cal.App. 723 [ 283 P.
atrophy, loss of use and restriction of motion of 833]; Armstrong v. Wallace, 8 Cal.App.2d 429 [
the right arm and shoulder. 47 P.2d 740]; Meyer v. McNutt Hospital, 173 Cal.
156 [ 159 P. 436]; Vergeldt v. Hartzell, 1 F.2d 633;
Plaintiff's theory is that the foregoing evidence
Maki v. Murray Hospital, 91 Mont. 251 [ 7 P.2d
presents a proper case for the application of the
228]; Whetstine v. Moravec, 228 Iowa 352 [ 291
doctrine of res ipsa loquitur, and that the inference
N.W. 425]; see Shain, Res Ipsa Loquitur, 17
of negligence arising therefrom makes the
So.Cal.L. Rev. 187, 196.)
granting of a nonsuit improper. Defendants take
the position that, assuming that plaintiff's There is, however, some uncertainty as to the
condition was in fact the result of an injury, there extent to which res ipsa loquitur may be invoked
is no showing that the act of any particular in cases of injury from medical treatment. This is
defendant, nor any particular instrumentality, was in part due to the tendency, in some decisions, to
489 the cause thereof. They attack plaintiff's *489 lay undue emphasis on the limitations of the
action as an attempt to fix liability "en masse" on doctrine, and to give too little attention to its basic
various defendants, some of whom were not underlying purpose. The result has been that a
responsible for the acts of others; and they further simple, understandable rule of circumstantial
point to the failure to show which defendants had evidence, with a sound background of common
control of the instrumentalities that may have been sense and human experience, has occasionally
involved. Their main defense may be briefly stated been transformed into a rigid legal formula, which
in two propositions: (1) that where there are 490 *490 arbitrarily precludes its application in many
several defendants, and there is a division of cases where it is most important that it should be
responsibility in the use of an instrumentality applied. If the doctrine is to continue to serve a
causing the injury, and the injury might have useful purpose, we should not forget that "the
resulted from the separate act of either one of two particular force and justice of the rule, regarded as
or more persons, the rule of res ipsa loquitur a presumption throwing upon the party charged
cannot be invoked against any one of them; and the duty of producing evidence, consists in the
(2) that where there are several instrumentalities, circumstance that the chief evidence of the true
and no showing is made as to which caused the cause, whether culpable or innocent, is practically
injury or as to the particular defendant in control accessible to him but inaccessible to the injured
of it, the doctrine cannot apply. We are satisfied, person." (9 Wigmore, Evidence [3d ed.], § 2509,
however, that these objections are not well taken p. 382; see, also, Whetstine v. Moravec, 228 Iowa
in the circumstances of this case. 352 [ 291 N.W. 425, 432]; Ross v. Double Shoals
Cotton Mills, 140 N.C. 115 [ 52 S.E. 121; 1
[1] The doctrine of res ipsa loquitur has three
L.R.A.N.S. 298]; Maki v. Murray Hospital, 91
conditions: "(1) the accident must be of a kind
Mont. 251 [ 7 P.2d 228, 231].) In the last-named
which ordinarily does not occur in the absence of
case, where an unconscious patient in a hospital
someone's negligence; (2) it must be caused by an
received injuries from a fall, the court declared
agency or instrumentality within the exclusive
that without the doctrine the maxim that for every
control of the defendant; (3) it must not have been
wrong there is a remedy would be rendered
due to any voluntary action or contribution on the
nugatory, "by denying one, patently entitled to
part of the plaintiff." (Prosser, Torts, p. 295.) It is
damages, satisfaction merely because he is
applied in a wide variety of situations, including
ignorant of facts peculiarly within the knowledge
cases of medical or dental treatment and hospital
of the party who should, in all justice, pay them."
care. ( Ales v. Ryan, 8 Cal.2d 82 [ 64 P.2d 409];

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 Ybarra v. Spangard 25 Cal.2d 486 (Cal. 1944)

[2a] The present case is of a type which comes explain the unusual result. (See Ales v. Ryan, 8
within the reason and spirit of the doctrine more Cal.2d 82 [ 64 P.2d 409]; Brown v. Shortlidge, 98
fully perhaps than any other. The passenger sitting Cal.App. 352 [ 277 P. 134].)
awake in a railroad car at the time of a collision,
The argument of defendants is simply that plaintiff
the pedestrian walking along the street and struck
has not shown an injury caused by an
by a falling object or the debris of an explosion,
instrumentality under a defendant's control,
are surely not more entitled to an explanation than
because he has not shown which of the several
the unconscious patient on the operating table.
instrumentalities that he came in contact with
Viewed from this aspect, it is difficult to see how
while in the hospital caused the injury; and he has
the doctrine can, with any justification, be so
not shown that any one defendant or his servants
restricted in its statement as to become
had exclusive control over any particular
inapplicable to a patient who submits himself to
instrumentality. Defendants assert that some of
the care and custody of doctors and nurses, is
them were not the employees of other defendants,
rendered unconscious, and receives some injury
that some did not stand in any permanent
from instrumentalities used in his treatment.
relationship from which liability in tort would
Without the aid of the doctrine a patient who
follow, and that in view of the nature of the injury,
received permanent injuries of a serious character,
the number of defendants and the different
obviously the result of someone's negligence,
functions performed by each, they could not all be
would be entirely unable to recover unless the
liable for the wrong, if any.
doctors and nurses in attendance voluntarily chose
to disclose the identity of the negligent person and We have no doubt that in a modern hospital a
the facts establishing liability. (See Maki v. patient is quite likely to come under the care of a
Murray Hospital, 91 Mont. 251 [ 7 P.2d 228].) If number of persons in different types of contractual
this were the state of the law of negligence, the and other relationships with each other. For
courts, to avoid gross injustice, would be forced to example, in the present case it appears that
invoke the principles of absolute liability, Doctors Smith, Spangard and Tilley were
irrespective of negligence, in actions by persons physicians or surgeons commonly placed in the
491 suffering injuries *491 during the course of legal category of independent contractors; and Dr.
treatment under anesthesia. But we think this Reser, the anesthetist, and defendant Thompson,
juncture has not yet been reached, and that the the special nurse, were employees of Dr. Swift and
doctrine of res ipsa loquitur is properly applicable not of the other doctors. But we do not believe that
to the case before us. either the number or relationship of the defendants
alone determines whether the doctrine of res ipsa
The condition that the injury must not have been
loquitur applies. [3] Every defendant in whose
due to the plaintiff's voluntary action is of course
custody the plaintiff was placed for any period
fully satisfied under the evidence produced herein;
was bound to exercise ordinary care to see that no
and the same is true of the condition that the
unnecessary harm came to him and each would be
accident must be one which ordinarily does not
492 liable for *492 failure in this regard. Any
occur unless someone was negligent. We have
defendant who negligently injured him, and any
here no problem of negligence in treatment, but of
defendant charged with his care who so neglected
distinct injury to a healthy part of the body not the
him as to allow injury to occur, would be liable.
subject of treatment, nor within the area covered
The defendant employers would be liable for the
by the operation. The decisions in this state make
neglect of their employees; and the doctor in
it clear that such circumstances raise the inference
charge of the operation would be liable for the
of negligence, and call upon the defendant to

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 Ybarra v. Spangard 25 Cal.2d 486 (Cal. 1944)

negligence of those who became his temporary for which defendants contend, would
servants for the purpose of assisting in the unreasonably limit the application of the res ipsa
operation. loquitur rule. It should be enough that the plaintiff
493 can show an injury resulting *493 from an external
In this connection, it should be noted that while
force applied while he lay unconscious in the
the assisting physicians and nurses may be
hospital; this is as clear a case of identification of
employed by the hospital, or engaged by the
the instrumentality as the plaintiff may ever be
patient, they normally become the temporary
able to make.
servants or agents of the surgeon in charge while
the operation is in progress, and liability may be [4] An examination of the recent cases,
imposed upon him for their negligent acts under particularly in this state, discloses that the test of
the doctrine of respondeat superior. Thus a actual exclusive control of an instrumentality has
surgeon has been held liable for the negligence of not been strictly followed, but exceptions have
an assisting nurse who leaves a sponge or other been recognized where the purpose of the doctrine
object inside a patient, and the fact that the duty of of res ipsa loquitur would otherwise be defeated.
seeing that such mistakes do not occur is delegated Thus, the test has become one of right of control
to others does not absolve the doctor from rather than actual control. (See Metz v. Southern
responsibility for their negligence. (See Ales v. Pac. Co., 51 Cal.App.2d 260, 268 [ 124 P.2d
Ryan, 8 Cal.2d 82 [ 64 P.2d 409]; Armstrong v. 670].) In the bursting bottle cases where the
Wallace, 8 Cal.App.2d 429 [ 47 P.2d 740]; Ault v. bottler has delivered the instrumentality to a
Hall, 119 Ohio St. 422 [ 164 N.E. 518, 60 A.L.R. retailer and thus has given up actual control, he
128]; and see, also, Maki v. Murray Hospital, 91 will nevertheless be subject to the doctrine where
Mont. 251 [ 7 P.2d 228, 233].) it is shown that no change in the condition of the
bottle occurred after it left the bottler's possession,
[2b] It may appear at the trial that, consistent with
and it can accordingly be said that he was in
the principles outlined above, one or more
constructive control. ( Escola v. Coca Cola
defendants will be found liable and others
Bottling Co., 24 Cal.2d 453 [ 150 P.2d 436].)
absolved, but this should not preclude the
Moreover, this court departed from the single
application of the rule of res ipsa loquitur. The
instrumentality theory in the colliding vehicle
control, at one time or another, of one or more of
cases, where two defendants were involved, each
the various agencies or instrumentalities which
in control of a separate vehicle. (See Smith v.
might have harmed the plaintiff was in the hands
O'Donnell, 215 Cal. 714 [ 12 P.2d 933]; Godfrey v.
of every defendant or of his employees or
Brown, 220 Cal. 57 [ 29 P.2d 165, 93 A.L.R.
temporary servants. This, we think, places upon
1072]; Carpenter, 10 So.Cal.L.Rev. 170.) Finally,
them the burden of initial explanation. Plaintiff
it has been suggested that the hospital cases may
was rendered unconscious for the purpose of
properly be considered exceptional, and that the
undergoing surgical treatment by the defendants; it
doctrine of res ipsa loquitur "should apply with
is manifestly unreasonable for them to insist that
equal force in cases wherein medical and nursing
he identify any one of them as the person who did
staffs take the place of machinery and may,
the alleged negligent act.
through carelessness or lack of skill, inflict, or
The other aspect of the case which defendants so permit the infliction of, injury upon a patient who
strongly emphasize is that plaintiff has not is thereafter in no position to say how he received
identified the instrumentality any more than he has his injuries." ( Maki v. Murray Hospital, 91 Mont.
the particular guilty defendant. Here, again, there 251 [ 7 P.2d 228, 231]; see, also, Whetstine v.
is a misconception which, if carried to the extreme

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 Ybarra v. Spangard 25 Cal.2d 486 (Cal. 1944)

Moravec, 228 Iowa 352 [ 291 N.W. 425, 435], rather a good reason for re-examination of the
where the court refers to the "instrumentalities" as statement of legal theories which supposedly
including "the unconscious body of the plaintiff.") compel such a shocking result.

[2c] In the face of these examples of liberalization We do not at this time undertake to state the extent
of the tests for res ipsa loquitur, there can be no to which the reasoning of this case may be applied
justification for the rejection of the doctrine in the to other situations in which the doctrine of res ipsa
instant case. As pointed out above, if we accept loquitur is invoked. We merely hold that where a
the contention of defendants herein, there will plaintiff receives unusual injuries while
rarely be any compensation for patients injured unconscious and in the course of medical
while unconscious. A hospital today conducts a treatment, all those defendants who had any
highly integrated system of activities, with many control over his body or the instrumentalities
persons contributing their efforts. There may be, which might have caused the injuries may
494 e.g., preparation for surgery by nurses *494 and properly be called upon to meet the inference of
internes who are employees of the hospital; negligence by giving an explanation of their
administering of an anesthetic by a doctor who conduct.
may be an employee of the hospital, an employee
The judgment is reversed.
of the operating surgeon, or an independent
contractor; performance of an operation by a Shenk, J., Curtis, J., Edmonds, J., Carter, J., and
surgeon and assistants who may be his employees, Schauer, J., concurred.
employees of the hospital, or independent
Respondents' petition for a rehearing was denied
contractors; and post surgical care by the surgeon,
January 25, 1945. Traynor, J., voted for a
a hospital physician, and nurses. The number of
rehearing.
those in whose care the patient is placed is not a
good reason for denying him all reasonable
opportunity to recover for negligent harm. It is