Fields

O’Greata L. Fields (Fields) suffered injuries from a sponge left in her leg during surgery. 1 After settling with the hospital, she pursued a claim for negligence against the surgeon, respondent Frank M. Yusuf, and his professional corporation (collectively referred to as Dr. Yusuf). The jury found that Dr. Yusuf was not negligent. On appeal, Fields contends the trial court erred in refusing to instruct the jury on res ipsa loquitur, the nondelegable duty of a surgeon, and the “captain of the ship” doctrine. Based on Ales v. Ryan (1936) 8 Cal.2d 82 [ 64 P.2d 409 ] (Ales), we find prejudicial error and reverse the judgment.

FACTS AND PROCEDURAL BACKGROUND

On September 11, 2002, 75-year-old Fields was admitted to the Henry Mayo Newhall Memorial Hospital for pain management after she sustained injuries from a fall in her home. An angiogram revealed that arteries to Fields’s right leg were completely blocked due to advanced vascular disease. Fields’s left leg had previously been amputated above the knee due to a similar condition.

On September 19, 2002, Dr. Yusuf performed arterial bypass graft surgery to install a new blood vessel in Fields’s right leg, inserting sponges…

A. The evidence did not support a res ipsa loquitur instruction as the element of exclusive control was missing

1. Dr. Yusuf lacked exclusive control over the sponges for the sponge count

Contrary to the majority, I conclude that the exclusive control condition, necessary for the giving of a res ipsa loquitur jury instruction, was missing on these facts. Rather than being factually akin to Ales v. Ryan (1936) 8 Cal.2d 82 [ 64 P.2d 409 ] (Ales), in my view the facts here are more similar to those of Sherman v. Hartman (1955) 137 Cal.App.2d 589 [ 290 P.2d 894 ] (Sherman).

In Sherman , the appellate court held that the trial court properly refused to give an instruction on res ipsa loquitur as to the defendant doctor who performed a hysterectomy on the plaintiff. Due to the plaintiff’s blood loss and shock, an assisting doctor started a blood transfusion and determined that the plaintiff was in good condition and the transfusion was working properly before leaving the plaintiff in the care of hospital personnel with instructions to watch the plaintiff’s blood pressure. It was undisputed that the injury occurred when the infusion needle slipped out of the vein and caused blood to…

DOI TODD, Acting P.J.

Appellant O'Greata L. Fields (Fields) suffered injuries from a sponge left in her leg during surgery. [1] After settling with the hospital, she pursued a claim for negligence against the surgeon, respondent Frank M. Yusuf, and his professional corporation (collectively referred to as Dr. Yusuf). The jury found that Dr. Yusuf was not negligent. On appeal, Fields contends the trial court erred in refusing to instruct the jury on res ipsa loquitur, the nondelegable duty of a surgeon, and the "captain of the ship" doctrine. Based on Ales v. Ryan (1936) 8 Cal.2d 82 , 64 P.2d 409 ( Ales ), we find prejudicial error and reverse the judgment.

On September 11, 2002, 75-year-old Fields was admitted to the Henry Mayo Newhall Memorial Hospital for pain management after she sustained injuries from a fall in her home. An angiogram revealed that arteries to Fields's right leg were completely blocked due to advanced vascular disease. Fields's left leg had previously been amputated above the knee due to a similar condition.

On September 19, 2002, Dr. Yusuf performed arterial bypass graft surgery to install a new blood vessel above Fields's right leg, inserting sponges to…