Morrision v. Loma Linda Medical Center

Filed 10/13/06 Morrision v. Loma Linda Medical Center CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed.

Schilt & Heinrich and E. Nathan Schilt for Defendant and Appellant.

Barnhill & Vaynerov, Steven M. Barnhill and Maxim Vaynerov for Plaintiff and Respondent.

Loma Linda University Medical Center (Loma Linda) appeals from a medical negligence judgment. It contends that there was insufficient evidence to support a finding of causation. We affirm the judgment.

PROCEDURAL HISTORY

Ronald Morrison (hereafter Morrison or plaintiff) sustained a high-pressure injection injury which resulted in the amputation of his left index finger through the mid-portion of the proximal phalanx, i.e., between the middle knuckle and the big knuckle at the base of the finger. As of the date of trial, he continued to suffer residual pain and numbness in the adjacent finger and in the palm of his hand. He sued Loma Linda and its employee, Christy Gamboa, and Big Bear Lake Medical Group and its employee, John Bulrice, for professional negligence, contending that negligent delay in treatment exacerbated the extent of his injury.

The jury found that Loma Linda and Bulrice were negligent and partially responsible for Morrison’s damages.^[1] It attributed 70 percent of the fault to Morrison, 4 percent to Bulrice and 26 percent to Loma Linda. It found that Morrison suffered past noneconomic damages in the amount of $150,000 and future noneconomic damages in the amount of $100,000. The judgment ordered Loma Linda to pay Morrison a total of $65,000 and ordered Big Bear Lake Medical Group and Bulrice to pay $10,000.

Loma Linda, the only appellant herein, filed a timely notice of appeal.

FACTUAL BACKGROUND

Morrison accidentally injected his left index finger with paint thinner while attempting to clear a clog from the nozzle of a high-pressure paint sprayer. He had the sprayer set for approximately 2000 pounds per square inch. As he wiped the nozzle with his left index finger, he accidentally triggered the sprayer. The tip of the finger immediately “plumped up,” and Morrison felt “pretty severe” pain, localized at the tip of his finger.

Morrison sought treatment immediately at Big Bear Lake Medical Group, which was approximately a 10-minute drive away from his job site, where the injury occurred. He was seen by John Bulrice, a physician assistant. Bulrice informed him that a high-pressure injection injury is very serious, analogous to a venomous snake bite. Bulrice could not treat the injury. He telephoned the local hospital and other facilities, and then advised Morrison to go to Loma Linda. In an attempt to ameliorate the pain, Bulrice injected a lidocaine solution around the base of the index finger. Rather than having the desired effect, however, the injection caused an immediate increase in the pain.

Bulrice felt that it would be fastest for Morrison to drive to Loma Linda rather than having him transported by ambulance. Morrison returned to his work site, where his fiancée was also working. His fiancée (now his wife) drove him to Loma Linda. It was their understanding that Bulrice was going to telephone the emergency room at Loma Linda to advise the staff that Morrison was on his way and to alert them to the seriousness of the injury and the need for expeditious treatment. However, Bulrice did not do so, and when they arrived, the triage nurse, Christy Gamboa, knew nothing about Morrison. She told Morrison to fill out an information slip and wait his turn.

Morrison went through triage at 4:01 p.m. At that point, the only visible injury was a small ring around the injection site. However, when Gamboa pressed on the finger tip, she observed that the capillary refill time was excessive, indicating impaired blood circulation. Gamboa was aware of the seriousness of the injury.^[2] She alerted the charge nurse and spoke to an attending physician. The attending physician instructed Gamboa to put an orange dot on Morrison’s chart, indicating that his condition was “emergent,” and told her to bring him into the treatment area as soon as possible.^[3]

At that time, there were no beds available in the emergency room. Loma Linda’s procedure required that any patient must be assigned a bed before he or she could be seen by a physician. Gamboa periodically checked for an available bed. However, there were other cases deemed more emergent than Morrison’s, and no bed became available for him until 6:55 p.m., approximately two hours and 40 minutes after he arrived at Loma Linda.

During the time that Morrison waited to see a doctor, his finger developed a dusky hue indicative of necrosis, or tissue death. The discoloration first appeared at the tip around the injection site. Over time, the discoloration progressed up the finger toward the palm.^[4] By the time he was taken to the treatment area at about 6:55 p.m., the discoloration extended to the middle knuckle.

The orthopedic resident on duty, Dr. Dickson, initially told Morrison that he would need to undergo a series of operations to open the finger and clean out the toxic material. He did not mention the possibility that any portion of the finger would have to be amputated. However, when Morrison told Dr. Dickson that he had been kept in the waiting room for three and a half to four hours, Dr. Dickson told him that he would need at least a partial amputation of the finger. Dr. Dickson noted in his report that Morrison’s middle finger and palm were partially numb. Morrison did not notice any pain or numbness in his palm when Gamboa initially examined him.

Morrison was finally taken to surgery at approximately 11:00 p.m. By that time, the discoloration had spread above the middle knuckle. Surgery was performed by Dr. Watkins, an orthopedic specialist. Dr. Watkins attempted to preserve as much of the finger as possible. Amputation below the middle knuckle would preserve the tendons which bend the finger. However, Dr. Watkins determined that there was insufficient blood flow to sustain the finger below the middle knuckle. He amputated the finger in the middle portion of the proximal phalanx, i.e., between the middle knuckle and the base of the finger.

Morrison testified that the palm of his hand continues to hurt, particularly in cold weather. The palm is soft and swollen, and he also has some pain and some numbness in the middle finger. When he makes a fist, the third finger sometimes hurts as well. The injury left him with significantly less strength in his left hand, which interferes with his ability to continue working in construction trades, as he had always done. He has less ability to grip nails, screws and tools. He is afraid to climb ladders because on one occasion he missed his grip on the rung of a ladder and fell about 20 feet.

The Standard of Care

Although high-pressure injection injuries are rare, they are well-known in the medical profession to constitute a true medical emergency requiring prompt surgical treatment in order to avoid amputation or to minimize the extent of amputation. Dr. John Lawrence, an emergency room physician with over 20 years experience, testified that such an injury is an “extreme emergency,” and that the standard of care requires getting the patient into surgery as quickly as possible. Because that type of injury cannot be treated in the emergency room, the role of the emergency room physician is solely to expedite surgery.

To comply with the standard of care, the emergency room staff had to make any necessary accommodation to expedite Morrison’s being seen by a physician. Even if a bed was not available, Morrison should have been taken immediately to the treatment area and examined by an attending physician, or the physician should have seen him briefly in the waiting room to verify the nature of the injury and begin the process of getting him into surgery. Dr. Lawrence stated that in order to meet the standard of care applicable to this type of injury, Morrison should have been seen by a physician within one hour after he arrived at the hospital. However, upon being informed that Christy Gamboa had notified an attending physician that there was a patient with a high-pressure injection injury, Dr. Lawrence opined that the physician breached the standard of care by failing to have Morrison brought to the treatment area immediately.

DISCUSSION

THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE JURY’S FINDING OF CAUSATION

Loma Linda concedes that the evidence was sufficient to establish that its treatment of Morrison fell below the standard of care. It contends solely that the evidence was insufficient to establish causation, i.e., that there is a reasonable medical probability that Morrison would have had a better outcome but for the negligent delay in treating his injury. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-1315.) It makes two contentions concerning the causation evidence. The first is that there was no competent expert testimony which supports the inference that there is a reasonable medical probability that earlier treatment would have produced a better outcome. The second is that plaintiff failed to adduce any evidence that an operating room would have been available earlier and therefore failed to prove that if he had been seen sooner by a physician, the surgery could have been performed in time to avert the residual damage to his finger and palm.

We review both contentions under the familiar substantial evidence rule. Under that standard, we review the evidence in the light most favorable to the prevailing party, resolving all conflicts and indulging all reasonable inferences from the evidence to support the judgment. (Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053.) We do not reweigh the evidence or evaluate the credibility of witnesses. We must uphold the judgment if it is supported by substantial evidence, even if substantial evidence to the contrary also exists and the trier of fact could have reached a different result if it had believed other evidence. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)

Delay in Initiating Treatment

Morrison’s expert on causation, Dr. Alexander Allins, described the mechanism of Morrison’s injury. He testified that the injection deposited paint thinner into the pulp, or fatty tissue, of Morrison’s finger tip, to a depth of four to eight millimeters. He explained that paint thinner is a lipophilic substance, i.e., one that will affect fat cells. Upon injection, the paint thinner began to liquefy the fat cells in Morrison’s finger. Liquefaction by such a substance does not occur instantaneously. At the injection site, liquefaction can begin in five to 30 minutes.

In addition to liquefying the fat cells, the paint thinner causes an inflammatory reaction in the surrounding tissue. The tissue swells, the cells begin to exude fluid, and pressure within the compartment of the finger rises. The first effect of the swelling is that blood flow through the capillaries is impeded. That impedes the flow in the larger blood vessels, ultimately including the main arteries within the finger. The pressure within the distal phalanx needs someplace to decompress, so unless there is a hole in the finger which permits the liquid to drain, the substance will decompress proximally. As the substance decompresses, it affects the tissues it encounters, liquefying fat cells and compromising blood vessels. As new segments of the digital arteries become thrombosed, cells in the finger are deprived of oxygen, which causes necrosis, or tissue death, of tissues in addition to the fat cells.

Dr. Allins opined that if Morrison’s finger had been opened immediately upon his arrival at Loma Linda, the paint thinner would have drained out and would not have progressed into the middle phalanx of the finger and beyond. Although it is most likely that Morrison would have lost the tip of the finger, he would not have lost the majority of the finger. He would also not have sustained the damage to the common palmar nerve, which was the cause of the pain and numbness in his middle finger and palm. He would have been left with a more functional finger and a more functional hand.

Loma Linda contends that Dr. Allins’s testimony was not “competent” evidence of causation because it did not provide a reasoned explanation for the fact that the operating surgeon encountered undamaged tissue in the proximal phalanx of the finger. It contends that under the scenario Dr. Allins described, the paint thinner would have necrotized the tissue in the proximal phalanx of the finger before it progressed into the palm. Thus, Loma Linda contends that there is no competent evidence that the paint thinner did migrate from the finger tip into the palm. Loma Linda’s expert, Dr. Macer, agreed with Dr. Allins that paint thinner reached the palm. However, in his opinion, the paint thinner was deposited throughout the finger and into the palm immediately, when the injection occurred. He believed that the common palmar nerve was damaged at that instant as well, and that the injury to the nerve was caused primarily by the mechanical force of the injection and was exacerbated by the presence of the paint thinner. Under that scenario, the lapse of time did not cause Morrison’s injuries. Thus, Loma Linda contends that there is insufficient evidence that its negligent delay in providing treatment caused Morrison’s damages.^[5]

There is substantial evidence which supports the conclusion that the passage of time did allow the paint thinner to reach the nerve. First, Dr. Macer’s opinion that the injection deposited paint thinner throughout the finger was based in part on his understanding that Morrison felt intense pain immediately throughout the finger. However, Morrison testified that when he injected himself, he felt instant pain localized in the tip of the finger. He did not feel any pain or numbness in the middle finger or the palm when he was examined by Christy Gamboa. He first complained of numbness in the index finger when he was examined by Dr. Hegewald about 7:00 p.m. He had pain and numbness in the middle finger by then as well. He first complained of pain and numbness in the palm when he was examined by Dr. Dickson about 7:45 p.m. At that time, the dusky hue indicative of necrosis had progressed to just below the middle knuckle. This is substantial evidence which supports the inference that the nerve damage occurred only after Morrison was seen in triage, but before he was seen by a doctor.

Second, Loma Linda’s argument assumes that under Dr. Allins’s scenario, the paint thinner moved into a discrete area of the finger only after it had essentially “eaten” through the tissue in a prior discrete area. But Dr. Allins stated that it was not only the fat necrosis which caused the paint thinner to move proximally, but also the inflammatory processes caused by the presence of the toxic material. He testified that the toxin-induced necrosis occurred only after the tissues had been exposed to the paint thinner for some period of time. However, he testified that necrosis is also caused by the damage done to the blood vessels by the toxin: As the blood flow is compromised, tissue dies from lack of oxygen. This too occurs over a period of time, not instantaneously. Dr. Macer concurred that it “takes some time” for tissues to die. Thus, Dr. Allins’s testimony supports the inference that the paint thinner was moved up the finger by the inflammatory processes which were at work at the same time that necrosis was occurring in more distal portions of the finger.

This is consistent with the testimony of Dr. Watkins, the operating surgeon, who testified that he debrided some necrotic tissue in the proximal phalanx, and that he did not know, at the time, whether there would be further necrosis postoperatively, because tissue can continue to die. He also testified that it was possible that paint thinner had reached the tissues beyond the point of amputation, although he did not see any direct evidence of that. This evidence also supports the inference that necrosis occurred in more distal portions of the finger while the paint thinner moved proximally. Conversely, there is no evidence that the paint thinner could not have moved into the palm by the inflammatory process before significant necrosis occurred in the proximal phalanx.

It is worth noting, as well, that although Loma Linda’s expert, Dr. Macer, initially took the position that the paint thinner was deposited throughout the finger at the instant of injection, and that there is no mechanism for paint thinner to migrate up the finger, he later admitted that in fact it could migrate. He testified that if the paint thinner had been injected solely into the finger tip, the pressure caused by fat liquefaction would have pushed the liquid out through the entrance wound rather than further into the finger. However, when Morrison’s attorney pointed out to him that the medical records indicated that the entrance wound was crusted over, he agreed that under that circumstance, the liquid would move proximally. This is consistent with Dr. Allins’s testimony that immediately opening the tip of the finger to allow the liquid to drain would prevent it from migrating further and would minimize tissue damage.

An expert’s opinion is substantial evidence if it has evidentiary support and is accompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) Dr. Allins offered a rational explanation of the mechanism of Morrison’s injury, based on the medical literature and the facts of this case. Loma Linda’s argument boils down to the contention that the jury should have believed its expert rather than Morrison’s. Because we do not reweigh evidence or assess the credibility of witnesses on review for substantial evidence, we must reject this argument. (Howard v. Owens Corning, supra 72 Cal.App.4th at p. 631.)

Moreover, even the jury did not, or based on the evidence could not, find that the passage of time allowed the damage to the nerve to occur because of the migration of the paint thinner, it could have based its verdict on the fact that the passage of time resulted in amputation of more of Morrison’s finger than would have been necessary if surgery had been performed promptly. Loma Linda asserts that Morrison’s complaint was solely that the lapse of time allowed the damage to extend beyond the finger itself to the palm, thus leaving him with a less functional hand, and asserts, in effect, that it is irrelevant that earlier surgery might have saved more of Morrison’s finger. However, the record does not support this premise.

Loma Linda relies exclusively on the testimony of Dr. Allins that loss of a digit is of less significance than the injury to Morrison’s palm, which resulted in loss of the ability to grip. Dr. Allins did offer that opinion. However, the record as a whole supports the inference that Morrison’s complaint was that the delay caused him to lose functionality in his hand both because of the extent of the amputation and because of the nerve damage.^[6] Dr. Allins made it clear that the objective of prompt treatment is to prevent the progression of tissue damage, “leaving as much of a functional digit alive as possible.” He testified that the standard treatment is drainage, debridement of dead tissue and irrigation to preserve as much of the finger as possible, rather than immediate amputation, because “a finger is a good thing to have. If we can salvage the finger, we should do everything to do so to accomplish that.” He testified that prompt treatment would have left Morrison with a “more functional digit . . . and a more functional hand.” Morrison testified that he specifically asked Dr. Watkins to try not to amputate above the middle knuckle. He understood from Dr. Dickson, the orthopedic resident, that if the finger was amputated above the middle knuckle, he would lose the tendons which allow the finger to flex. Inferentially, this means that if the amputation left the middle knuckle in place, Morrison would have had a more functional hand, because his index finger would still have been functional. Dr. Watkins did not specifically recall having discussed that with Morrison, but he did recall that Morrison wanted him to save as much of the finger as possible. He agreed that amputation below the middle knuckle would have preserved the tendons which operate the finger. Thus, if there is substantial evidence to support the conclusion that there is a reasonable medical probability that the delay resulted in more extensive amputation than would have been necessary if surgery had been performed sooner, we would be required to affirm the judgment even if there were insufficient evidence that the negligent delay allowed the paint thinner to reach Morrison’s palm.

The testimony of a single witness, including an expert, constitutes substantial evidence, even if there is evidence to the contrary. (People v. Vega (2005) 130 Cal.App.4th 183, 190; Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.) Dr. Allins’s testimony is in itself substantial evidence that there is a reasonable medical probability that earlier intervention would have limited amputation to the middle portion of the middle phalanx, i.e., excluding the second knuckle. Substantial evidence supports his opinion as to the progression of the injury. When Morrison was first seen at Big Bear Lake Medical Group, there was no swelling and good capillary refill. When he was seen in triage at Loma Linda about 4:00 p.m., capillary refill was compromised. There was a small dark spot or ring at the point of entry. By 7:00 p.m., the finger was significantly swollen, and a dusky hue indicative of necrosis was “slowly spreading proximally.” By that time, Morrison had numbness in the index finger and the adjacent finger. By 7:44 p.m., the dusky hue had progressed to the middle of the middle phalanx and Morrison had numbness in his palm as well. By the time Morrison was taken to surgery about 11:00 p.m., the dusky hue had progressed above the middle knuckle. When Dr. Watkins opened the finger, he observed fat liquefaction to the middle of the proximal phalanx.

For all of the foregoing reasons, we conclude that substantial evidence supports the jury’s finding that negligent delay caused Morrison’s damages.

Availability of an Operating Room

Loma Linda also contends that Morrison failed to prove that if he had been seen sooner by a physician, the surgery could have been performed in time to avert any portion of his injury. It contends that there was no evidence that an operating room would have been available early enough to prevent the damage to the finger and to the nerve. However, as discussed in detail above, Dr. Allins’s testimony constitutes substantial evidence that the loss of the index finger and the nerve damage were caused by Loma Linda’s failure to provide timely treatment, i.e., surgery, within one hour of Morrison’s arrival at the hospital. Dr. Lawrence testified that Loma Linda had to make necessary accommodations to provide timely treatment. Because it was undisputed that treatment in this case means surgery, this would necessarily include providing an operating room. Loma Linda does not explain why it was Morrison’s burden to prove affirmatively that an operating room would have been available if he had been seen earlier. Rather, because Morrison made a prima facie showing that Loma Linda was negligent in failing to provide timely treatment and that its failure caused his damages, the burden was on Loma Linda to prove that its failure to provide treatment within an hour either did not breach the standard of care or did not cause Morrison’s damages.

Loma Linda also argues that Dr. Allins testified that once Morrison was taken to the treatment area of the emergency room, he received appropriate care. From this, Loma Linda deduces that the evidence establishes that it was not negligent by failing to get Morrison into surgery in under approximately three hours. Because there is no evidence that surgery after 7:00 p.m. would have produced a better result, it contends that there is no causal link between its negligence and Morrison’s damages. As the courts have so often reminded counsel, under the substantial evidence rule it is irrelevant that there is substantial evidence which would support a contrary verdict. All that matters is whether there is substantial evidence which supports the verdict rendered by the trier of fact. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.) Moreover, this argument really pertains to the standard of care rather than to causation. Loma Linda concedes that the evidence supports the finding that its treatment of Morrison fell below the standard of care. This necessarily includes the finding that Loma Linda was negligent in failing to get Morrison into surgery in time to prevent the damage which Dr. Allins said resulted from a delay beyond one hour. Having conceded that the evidence supports the finding that it breached the standard of care, Loma Linda may not attack that finding under the guise of insufficiency of the evidence of causation.

DISPOSITION

The judgment is affirmed. Plaintiff and respondent Ronald Morrison is to recover his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] Because the liability of Big Bear Lake Medical Group, if any, was solely derivative of Bulrice’s liability, the jury was not asked to determine whether the medical group was negligent. The jury found Christy Gamboa, an emergency room nurse, not negligent.

^[2] Morrison testified that Gamboa did not appreciate the seriousness of the injury and kept insisting that he merely had a bruise on his finger, despite his efforts to convince her otherwise. However, the jury found that Gamboa was not negligent. Thus, although we generally recite the evidence in the light most favorable to Morrison, as to Gamboa, we recite the evidence in the light most favorable to her as the prevailing party. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.)

^[3] Under Loma Linda’s system, a red dot indicates a life-threatening condition requiring immediate intervention. An orange dot indicates all emergency conditions which are not life-threatening, including those which pose a threat of amputation of a limb, or, as in Morrison’s case, amputation of a digit.

^[4] The witnesses described the progression of the damage to the finger as “proximal” or proceeding from the tip of the finger toward the base. “Distal” refers to the portion of the finger which is furthest from the heart, while “proximal” is the portion closest to the heart. There is some ambiguity in the questions and answers, in that the attorneys at times refer to the damage as proceeding “down” the finger, while the doctors generally describe it as proceeding “up” the finger. We will refer to the progression as moving up the finger, away from the tip and toward the base. Thus, when we describe the amputation of Morrison’s finger as “above” the second knuckle, we mean that the knuckle was also removed.

^[5] Loma Linda characterizes the injury for which Morrison sought compensation as the residual pain and numbness in his middle finger and palm, which reduces the functionality of his hand. As we discuss below, the record does not support this premise.

^[6] Loma Linda did not provide us with a transcript of closing arguments. Neither the reporter’s transcript nor the jury instructions tell us exactly how Morrison’s contentions were submitted to the jury. As the appellant, Loma Linda has the burden of demonstrating error, and of producing an adequate record to do so. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) In the absence of a record which explicitly states Morrison’s contentions as submitted to the jury, we will draw all reasonable inferences which support the judgment.