Surgery Court cases

SPECIAL

DEPARTMENTS

Surgery

Court

HOWARD NEWCOMB MORSE,*

LANDSBERG

of Calijornia

145 C. A. 2d 1#l,jo2

P. 2d 86

The patient, who was pregnant, entered the Queen of AngeIs Hospital in Los AngeIes, Cahfornia. Upon admission the feta1 heart beats suddenIy dropped from 120/160 mm. Hg to a Iow of 80 beats per minute, a condition requiring immediate deIivery. The patient was given a spinal anesthetic; the baby’s head was found to be in an abnorma1 position requiring the use of forceps to rotate the head, resuhing in certain Iacerations. To faciIitate delivery, the surgeon performed episiotomy to widen the vagina1 cana1, and to stop bleeding, inserted a number of cotton gauze sponges measuring about 4 by 4 inches square. When the baby was born two Ioops of cord wrapped around its neck impeded breathing, which was restored by artificia1 respiration. Shortly after delivery, the patient suddenIy had a severe hemorrhage, losing 3 or 4 pints of bIood and indicating a faiIure of the uterus to contract normaIIy; the patient’s puIse rose, blood pressure dropped and it was feared that she would die on the table. After medicina1 and other procedures faiIed to stop the bIeeding, the surgeon packed the uterus with a 5 yard roI1 of gauze and then packed the vagina with a 3 yarc1 Iength of gauze tied to the first roll. The hemorrhage was then arrested. More than two years Iater, an expIoratory * Counselbr

Chicago, Illinois

operation by another surgeon discIosed a Iarge abscess in the abdomina1 cavity. Within the mass of abscess was Iodged “an irreguIar disintegrating gauze mesh,” measuring approximateIy 7 by 6 by about 345 inches. A second operation was performed during which the patient’s spIeen and three quarters of the stomach were removed. Many blood transfusions were required, and a third remedial operation was then performed. The patient brought an action in the Superior Court of Los Angeles County against the surgeon to obtain damages for alleged negligence in causing the mesh of cotton gauze to become lodged and embedded in her abdomen. At the trial two theories were advanced as to how the gauze reached the patient’s abdominal cavity. The expert witnesses suggested that in the packing process the fundus of the uterus was accidentally punctured and a portion of gauze was shoved through the opening. The other explanation was that one or more gauze sponges, used to wipe away bIeeding caused by lacerations or incisions, passed through cervical or vaginal Iacerations into the cul-de-sac close by and were carried into the abdomen. A jury returned a verdict in favor of the surgeon and the court entered judgment accordingly. The patient appealed. The District Court of AppeaI of CaIifornia affrrmed the decision of the court below. The District Court of AppeaI declared: “ . . . under either theory . . . the jury may have reached the conclusion that the occurrence was in the category of an unavoidable accident.”

VS. KOLODNY

District Court of Appeal

Cases

at Law of the Supreme Court of the United States of America.

611

American

Journal

oJ Surgery,

Volume

102, October 1~61

Surgery HUTTNER

Court

VS. MACKAY

Supreme Court of Washington 48 Wash. zd 378, 293 P. zd 766

The patient suffered a generaIized convuIsion, and his condition was diagnosed as a Iow Ieve of epiIepsy. The folIowing year, he suffered another convuIsion of the same type. Two years Iater, he contracted a coId which was accompanied by severe headaches. Thereafter, he suffered dipIopia in one eye and consuIted an ophthalmoIogist, who examined his eyes and changed the lenses in his gIasses. When the dipIopia continued, the doctor sent him to consult an eye, ear, nose and throat .speciaIist. This doctor reported that the troubIe did not stem from the ears, nose or throat, and referred the patient to a surgeon. After the doctor-patient reIationship was agreed upon, the patient gave the surgeon a history of his subjective symptoms. The history incIuded a negative Wasserman test. An eIectroencephaIogram indicated that there was some generaIized cerebra1 dysfunction and a grade 2 foca1 Iesion in the right fronta Iobe. The surgeon’s examination of the patient aIso discIosed an incipient choked disk in the right eye. Roentgenograms taken earIier by another doctor showed a norma skuI1. A pneumoencephaIogram was performed. During this diagnostic study, the manner in which the fluid flowed from the spina cana indicated that the patient had high intracrania1 pressure. The roentgenograms taken were negative for abnormalities. A VentricuIogram was performed. The roentgenoIogist reported that these roentgenograms were negative for abnormaIities. However, the roentgenograms confirmed the surgeon’s cIinica1 diagnosis that the patient was suffering from a deep-seated brain tumor in the right fronta tempora1 area. On the same day, the surgeon performed craniotomy. During this operation, the surgeon cut a portion of the patient’s skuI1. When the bone was Iaid back, approximateIy 15 square inches of the dura was exposed. The surgeon put severa “nicks” in the dura and inserted a cannuIa in different pIaces in an attempt to Iocate the tumor. When the surgeon did not Iocate the tumor in this manner, he incised the dura. Because of the intracraniaI pressure, this incision aIIowed the brain to herniate

612

Cases

through the opening in the skuI1. The herniation was in the genera1 area of the motorsensory cortex. Thereafter, the surgeon cannuIated further, but couId not reach the tumor. He cIosed the opening, Ieaving the skuI1 flap sIightIy raised to compensate for the intracrania1 pressure. The damage resuIting from the herniation caused paraIysis of the patient’s Ieft side. He was discharged from the hospita1. Thereafter, on severa occasions, the patient was seen by the surgeon in his offIce. The surgeon prescribed certain medicines during these caIIs, and over the teIephone. Later, the patient was in Harborview HospitaI in SeattIe, Washington, with pneumonia. WhiIe there, he was visited by a second surgeon, who became interested in the patient’s condition. The second surgeon compIeted an extensive diagnostic examination. His diagnostic studies did not reveal the exact Iocation of the tumor or whether it was operabIe. He received permission to perform an expIoratory operation. He operated through the same opening in the skuI1 as had the first surgeon. After incising the cortex, he discovered a tumor in the base of the right ventricIe and removed a smaI1 piece of it. This operation resuIted in decreased intracrania1 pressure, thus permitting the herniated portion of the brain to recede so that the skuI1 flap couId be repIaced in its norma position. The second surgeon performed a second craniotomy. This time he operated from a different angIe, approached the tumor from the bottom and removed another piece of it. SubsequentIy, a third operation was performed, whereby tubes were inserted so that the excess ffuid around the brain couId drain through the ears and throat into the stomach, where it wouId be re-absorbed. AIthough the operations performed by the second surgeon reIieved the pressure on the patient’s brain, the tumor was inoperabIe and couId not be compIeteIy removed. Therefore, the operations were paIIiative onIy and did not correct the paraIysis. The patient fiIed an action in the Superior Court of King County, Washington, against the first surgeon to obtain damages, aIIeging that the surgeon had performed an expIoratory craniotomy when onIy a craniotomy to remove the tumor had been authorized. At the tria1 testimony estabIished that a craniotomy had been authorized. However, the patient’s wife

Surgery

Court

Cases

determined onIy by a craniotomy such as the surgeon performed. The court dismissed the case, and the patient appealed. The Supreme Court of Washington sustained the decision of the Iower court. The Supreme Court stated: “Where a doctor is authorized to remove a tumor by means of a craniotomy and finds, during the operation, that it cannot be removed without grave risk to the Iife of his patient, the authority to remove the tumor carries with it the implied authority not to do so when death would be a most probable resuIt. The doctor performed the operation authorized.”

testified that she had not authorized an exploratory craniotomy. The surgeon did not testify that he performed an exploratory operation for diagnostic purposes. He used the term “exploratory” generaIIy, in that, in his opinion, all operations are exploratory because the practice of medicine is not an exact science. He testified that, from his diagnosis, he concluded that the tumor was Iocated in the right frontal temporal region, but the operation disclosed it was too deep-seated for remova1. He admittedly was authorized to remove the tumor. The evidence established that its exact location, or if it was operabIe, couId be

613