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Burrow v. Widder

OPINION FILED SEPTEMBER 2, 1977.

DEBORAH BURROW ET AL., PLAINTIFFS-APPELLEES,

v.

EDITH WIDDER, M.D., ET AL., DEFENDANTS. — (JOHN B. O'DONOGHUE, M.D., DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant, Dr. John B. O'Donoghue, appeals from a judgment entered on the verdict against him and other doctor-defendants in a medical malpractice action brought by plaintiff, Deborah Burrow. He contends: (1) plaintiff failed to establish by expert testimony that he deviated from an accepted standard of medical and surgical care and that his actions were the proximate cause of her injury; (2) the trial court improperly refused to allow his counsel to examine a co-defendant immediately following plaintiff's examination of the co-defendant called as an adverse witness; and (3) the damages awarded are excessive.

In July 1969, Deborah Burrow, a 15-year-old diabetic, underwent surgery for a possible appendicitis; she has never regained consciousness and remains in a semi-comatose condition. Deborah and her parents, Darlene Burrow and Norbert Burrow, brought this action against defendants, Dr. Edith Widder, an anesthesiologist; Dr. John B. O'Donoghue, a surgeon; Dr. Edward J. Winter, an internist; and Little Company of Mary Hospital. Special conservators were appointed for Deborah in the proceedings. At the close of evidence a directed verdict was granted in favor of the hospital. The jury returned verdicts holding Doctors Widder, O'Donoghue and Winter jointly liable, and assessing damages in the amount of $1,500,000 in favor of Deborah, and $1,000,000 in favor of her parents. Judgments were entered accordingly.

After each defendant had filed a post-trial motion for judgment notwithstanding the verdict and for new trial, covenants not to execute upon the judgments were entered into by plaintiffs with Dr. Widder under which the latter paid $600,000 to the estate of Deborah and $600,000 to the parents. The trial court subsequently denied the post-trial motions, conditioned as to the parents upon their remittitur of $400,000, to which the parents consented. They accepted the payment from Dr. Widder in full satisfaction of their judgment. Therefore, the parents' judgment is not before this court.

Thereafter, notices of appeal were filed by Drs. O'Donoghue and Winter. Dr. Winter and Deborah's conservators then entered into a covenant not to execute upon her judgment under which Dr. Winter paid $200,000 and dismissed his appeal. Dr. O'Donoghue appeals from the judgment in favor of Deborah which remains unsatisfied in the amount of $700,000, excluding interest and costs.

The trial of this cause was long and complex, involving a hospital and three of its staff physicians, each practicing within his or her own specialty. Their actions concerning this patient were to an extent interrelated. However, only one of the physicians is before this court, and we are called upon to isolate his activity from that of his colleagues to determine whether the evidence establishes malpractice on his part.

The evidence adduced at trial is voluminous; the testimony is necessarily detailed. What follows immediately is an overview of the treatment given Deborah by all defendants. More detailed testimony concerning the role of Dr. O'Donoghue is set forth in our discussion of the issues.

In 1967, Deborah Burrow, then 13 years old, was diagnosed as a diabetic. During a period of hospitalization at that time she was seen regularly by Dr. Winter, a specialist in internal medicine. After her release from the hospital, she continued to be treated by Dr. Winter's partner, Dr. Vil, also an internist. Deborah learned the technique of self-administering daily injections of insulin, and she also learned to test her urine for sugar and acetone. In other respects she lived a normal life; she achieved good grades in school and participated in physical activities. Her diabetes appeared well controlled.

At about 1 p.m. on July 9, 1969, Deborah and her mother came to the office of Doctors Winter and Vil. She was examined by Dr. Winter. She told him that she had had diarrhea the day before and abdominal pain since that morning. Her abdomen was tender in the right lower quadrant, though Dr. Winter found no rebound tenderness. The turgor of her skin demonstrated that she was dry and dehydrated. She was lethargic. Her sugar was strong and positive, and there was acetone in the urine. Dr. Winter recorded her history and ordered blood tests. The tests showed high hemoglobin and hematocrit readings, and an elevated white blood cell count. On the basis of the history, physical examination and his interpretation of the blood tests, Dr. Winter formed a clinical diagnosis of ketoacidosis (a state of metabolic imbalance) and possible appendicitis. He discussed the matter with Deborah's mother. He recommended hospitalization.

Because of the possibility of appendicitis, Dr. Winter asked Dr. O'Donoghue, who had an office in the same building, to examine Deborah and give his opinion as a surgeon. Dr. O'Donoghue reviewed her history as recorded by Dr. Winter. In addition to the facts contained therein, he noted that she was nauseated; he "understood" that she had vomited prior to coming to the office, although Dr. Winter's record indicated otherwise. Upon physical examination, he found that her abdomen was flat, which he interpreted as indicating distention. He did not test for rebound tenderness. She responded to palpation of the right side below the beltline. Dr. O'Donoghue also formed a diagnosis of possible appendicitis and ketoacidosis.

Deborah was taken to Little Company of Mary Hospital by her mother at about 3 p.m. She was admitted under the care of Dr. Winter. The admitting orders sent by Dr. Winter requested a determination of serum electrolytes, urine analysis and blood tests. The order also directed that she be given insulin subcutaneously and a liter of Ringer's lactate solution intravenously. At about 3:30 p.m. Dr. Winter saw Deborah in the hospital and observed no difference in her appearance.

At about 7 p.m. Dr. O'Donoghue examined Deborah. She again complained of pain in her right lower quadrant. Dr. O'Donoghue reexamined Deborah's abdomen and reviewed an X ray of the area taken on admission. The X ray revealed a collection of gas in the right lower quadrant. The results of the tests ordered by Dr. Winter were available. Dr. O'Donoghue reviewed these and noted a drop in the hematocrit and white blood cell count. The blood chemistries showed that the pH and potassium were below normal. He determined that the patient was not as dehydrated and lethargic as she had been during the examination at Dr. Winter's office. Dr. O'Donoghue conferred with Dr. Winter by telephone and ordered a repeat "sodium, potassium, chloride, CO

and pH blood sample" be obtained. He also ordered a portable chest X ray. Deborah's parents were at the hospital; he spoke with them about their daughter's condition and informed them that he would return to the hospital later that evening.

Dr. Winter returned to the hospital at about 7:30 p.m. He too reviewed the results of the tests he had ordered, and he also looked over the nurse's notes, all orders, and the patient's history. No progress notes had thus far been prepared. He examined Deborah and found her pulse and respirations rapid. He found that she was improving in regard to dehydration, and that she was controlling her sugar and experiencing diminished pain. He was less alarmed about her general condition, but had no conclusion with respect to the appendicitis. However, in his progress notes he indicated that appendicitis was less likely.

At about 8 p.m. Dr. O'Donoghue received a call from a nurse asking whether something could be given to relieve Deborah's headache. Dr. O'Donoghue ordered 30 milligrams of Talwin, an analgesic, to be given intramuscularly.

Since her arrival at the hospital, fluids were administered to Deborah intravenously. The first I.V. started at 4:26 p.m. was Ringer's lactate solution containing a small amount of salt. On Dr. Winter's orders it was followed at 6:15 p.m. by Ringer's lactate solution with glucose. The third I.V. started at about 9 p.m. was a simple saline solution with 5% glucose.

At about 10 p.m. Dr. Winter received a call informing him of the results of the tests taken at 9:30 p.m. On the basis of these results, Dr. Winter ordered 40 milliequivalents of potassium chloride to be added to the I.V. started at 9 p.m.

At about 10:30 p.m. Dr. O'Donoghue returned to the hospital. Deborah's history had been taken and she had been examined by a medical student who recorded his findings. Upon physical examination Dr. O'Donoghue found persistence of abdominal extension, localized tenderness in the right lower quadrant, and some guarding on deep palpation. Although she had been given an analgesic at 8:10 p.m., Deborah complained of pain in the right lower quadrant.

Dr. O'Donoghue called Dr. Winter at about 11 p.m. They discussed the laboratory results Dr. Winter had received at 10 p.m. and Dr. O'Donoghue's later findings on physical examination. They decided that the indications were such that the patient had to proceed to surgery, and arrangements were made for an emergency appendectomy. The I.V. which started at 9 p.m., to which 40 milliequivalents of potassium chloride was later added, had almost finished infusing when Deborah was taken to surgery. It was Dr. O'Donoghue's opinion that this potassium would accomplish the necessary metabolic balance.

At about 11:15 p.m., after indirectly communicating with Dr. Widder, Dr. O'Donoghue prescribed atropine as premedication in preparation for surgery. At that time the operating room was being used for emergency surgery on another patient. Dr. Edith Widder was the anesthesiologist for that operation, which was completed at about midnight. The emergency appendectomy on Deborah Burrow followed, with Dr. Widder again serving as the anesthesiologist.

Prior to surgery, Dr. O'Donoghue and Dr. Widder met in the doctors' scrub room and discussed the course of Deborah's illness and her condition at that time. They discussed the types of anesthesia; she suggested a spinal because of its convenience at that time of night when hospital personnel is light; however, they agreed on general anesthesia because they determined it would be traumatic for a person Deborah's age to be awake during surgery. Dr. Widder then examined Deborah's record and noted the diagnosis of diabetic acidosis and appendicitis; she also reviewed the lab reports. She did not examine the patient prior to surgery.

Dr. Widder began induction at 12:45 a.m. with sodium pentothal. She inserted an oropharyngeal airway and maintained anesthesia with cyclopropane and oxygen. She also administered succinylcholine, a muscle relaxant designed to facilitate surgery. The drug was titrated, and Dr. Widder did not record or recall the amount given during surgery. Dr. Widder assisted respiration by use of a mask and breathing bag, and monitored Deborah's pulse with a precordial stethoscope.

The patient was draped, and the first incision was made at 1:05 a.m. Dr. O'Donoghue was assisted in surgery by Dr. Prabhaker. They were working in a bloodless field. After surgery proceeded for about 20 minutes, Dr. Widder announced that the blood pressure was dropping; then that she could not get a pulse or blood pressure. Dr. O'Donoghue checked the femoral region for a pulse and there was none. After announcing the crisis, Dr. O'Donoghue gave instructions to the personnel in the operating room and commenced external cardiac massage. Dr. Widder removed the mask and the oropharyngeal airway, and inserted an endotracheal tube. Prior to that point in the operation, an endotracheal tube had not been used to ventilate the patient. About one minute and ten seconds after external cardiac massage began, it was interrupted so that Dr. Prabhaker could inject adrenaline by the intracardiac route. Oxygenated blood was observed in the syringe prior to injection. A cardiac monitor was brought into the operating room and connected. About two minutes and ten seconds elapsed from the time the crisis was announced before a normal oscillographic tracing appeared. At that time Dr. Widder confirmed a recordable and low normal pulse and returning blood pressure. Sometime after resuscitation, surgery was completed. The appendix, which Dr. O'Donoghue stated had been removed prior to the crisis, was later determined to be normal.

After surgery Dr. O'Donoghue called Dr. Winter and told him that Deborah had gone into cardiac arrest. Deborah entered the intensive care unit at about 2 a.m., and Dr. Winter ordered that she be placed on a cardiac monitor. He prescribed dilatin to prevent convulsions and digitalis to treat a persistent rapid heartbeat.

On July 11 Deborah was examined by a neurologist. On that date decadron was prescribed to treat swelling of the brain. Dr. Winter testified that swelling of the brain causes additional brain damage. Although Dr. Winter testified that swelling may result from the absence of oxygen in the brain, he did not order decadron until July 11 because he fully expected Deborah to come out of the anesthesia after the operation. He weighed the benefits of decadron against the fact that the patient was post-operative and diabetic, and the possibility of a peptic ulcer resulting from the use of the drug. His assessment of the risk and possible benefits were based in part upon being told that the patient had been deprived of oxygen for only one minute.

Deborah did not regain consciousness. She remains in a permanent semi-comatose condition, variously described as a state of "akinetic mutism" or a "persistive vegetative" state. The testimony shows that the condition was caused by hypoxia, an insufficient amount of oxygen to the brain. She is bedridden and dependent on others for movement. She can apparently see and hear, but there is no intellectual function nor response to her surroundings. The prognosis for her recovery is nil.

OPINION

Dr. O'Donoghue argues that he is entitled to a judgment in his favor as a matter of law, since plaintiff failed to present expert testimony to establish that he deviated from the accepted standard of medical and ...


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