(Super. Ct. No. CIV 241684) (Ventura County). Barbara Lane, Judge.
The opinion of the court was delivered by: Perren, J.
pub. order 6/28/10 (see end of opn.)
Opinion following rehearing
ORDER CERTIFYING OPINION FOR PUBLICATION
The opinion in the above entitled matter filed on June 1, 2010, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.
William Scott and Robert Scott, as personal representatives of Jay Scott,*fn1 appeal from a jury verdict in favor of respondents, Drs. Constanze Rayhrer and Gosta Iwasiuk, on Scott's claim for medical malpractice. A drain inserted after surgery was left in Scott's abdomen and not discovered and removed until 20 months later.
Scott contends that the trial court erred in denying his request for a res ipsa loquitur instruction as to Dr. Rayhrer, instructing the jury that a finding of res ipsa loquitur against Dr. Iwasiuk must be based on expert testimony, and refusing to instruct the jury that meeting the community standard of care does not excuse unreasonable conduct. We affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Scott had surgery for colorectal cancer in September 2002. Dr. Iwasiuk performed the surgery. Scott subsequently developed diarrhea and dehydration requiring hospitalizations in January and February 2003. Scott's symptoms continued and, on August 1, 2003, a CT scan of Scott's abdomen revealed fluid collection in the sacral hollow near the rectum. A drainage catheter was placed to drain the fluid and removed a week later. On August 28, fluid collection was again seen on a CT scan. Scott continued to complain of pain related to reaccumulation of the fluid.
On September 9, 2003, while Dr. Iwasiuk was on vacation, Dr. Rayhrer placed two Penrose drains in the presacral space.*fn2 On September 18 and 19, Dr. Iwasiuk advanced the drains by pulling them partially out of the wound, trimming the protruding section, and securing them with safety pins to prevent them from being pulled back into the wound. Dr. Iwasiuk removed the drains on September 22.
After the drains were thought to be removed, fluid continued to accumulate. Scott experienced increased diarrhea, fever, and fatigue. Dr. Iwasiuk continued to treat Scott. On Dr. Iwasiuk's orders, a fistulogram was performed on May 3, 2005. The fistulogram showed a tubular structure resembling a drain. Dr. Iwasiuk performed surgery and removed a seven-inch Penrose drain or a portion of the drain.
Scott filed a complaint for medical malpractice against Doctors Iwasiuk and Rayhrer, Pueblo Radiology Group and Santa Paula Hospital. He settled with Pueblo and the hospital and proceeded to trial against the two doctors.
Scott requested that the jury be instructed on the doctrine of res ipsa loquitur in his claims against both doctors. The court refused to give the instruction as to Dr. Rayhrer and gave the instruction as to Dr. Iwasiuk only. Over Scott's objection, the court instructed the jury that a finding of negligence could be based only on expert testimony. Scott contends that there was no need for expert testimony because the basis of his claim is within the common knowledge of the jury. The trial court declined to give CACI No. 413 as requested by Scott that meeting the community standard of ...