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Ziegert v. S. Chicago Community Hospital





APPEAL from the Circuit Court of Cook County; the Hon. JAMES H. FELT, Judge, presiding.


Rehearing denied September 8, 1981.

Margaret A. Ziegert (plaintiff) filed this action for medical malpractice against the South Chicago Community Hospital (Hospital) and Dr. Gonzalo Magsaysay (defendants). A jury returned a general verdict in favor of defendants. Plaintiff appeals.

Plaintiff was employed as a clerical coordinator at the Hospital in November 1973. She enrolled in the first semester of nursing school. She was acquainted with Dr. Magsaysay, a staff physician who specialized in surgery. They had several conversations regarding plaintiff's varicose veins and the possibility of corrective surgery. Plaintiff agreed to such surgery by Dr. Magsaysay.

Approximately one week prior to surgery, Dr. Magsaysay personally took a general medical history from plaintiff including her allergies and previous hospitalization. After preoperative tests, plaintiff was admitted to the Hospital on December 16, 1973. She was given a computer form upon which she detailed her prior medical history. An intern went over this history with her to check it for accuracy. Plaintiff was tendered and signed a consent form. Additional preoperative testing remains a subject of controversy.

The surgery, known as bilateral greater and lesser saphenous vein stripping, was performed on December 17, 1973. "Saphenous" relates to the two chief superficial veins of the leg. Plaintiff does not claim negligence by either defendant as regards the actual procedure. Medical records state plaintiff was removed to the nursing unit following surgery. Dr. Magsaysay prescribed tetracycline, an antibiotic.

Plaintiff made no complaints on December 18, 1973, other than the "usual postoperative pain." On December 19, plaintiff showed an elevated temperature and complained of chest and leg pain and heaviness. Dr. Magsaysay also noted a positive Homan's sign. This is a pain or discomfort behind the knee generally associated with a thrombosis or blood clot in the leg. The doctor diagnosed her condition as a possible pulmonary embolism or obstruction of a pulmonary vein. He ordered heparin, an anticoagulant drug. A pulmonary scan was also ordered.

On December 20, Dr. Magsaysay noted a reduction in calf tenderness and chest pain. Results of the pulmonary scan were normal. An electrocardiogram (EKG) examination revealed "right ventricular strain," but was noted to be normal. Percodan, a pain medication containing aspirin, was prescribed by Dr. Magsaysay. He permitted plaintiff to have bathroom privileges. Later that evening, plaintiff's pain increased. She was given additional pain medication and oxygen.

On December 21, plaintiff was noted to be pale but with a regular pulse. She complained of heavy chest pain. Heparin treatment was discontinued and a chest X ray was ordered. Additional pain medication was prescribed.

On December 22, plaintiff again reported chest and leg pain. After a consultation with Dr. Magsaysay, heparin treatment was reinstituted. An EKG again revealed right ventricular strain. A possible pulmonary embolism remained Dr. Magsaysay's prime concern.

On December 23, plaintiff was reported to be pale. Massive swelling of her legs was noted and diagnosed as a result of internal bleeding. Heparin treatment was discontinued. Plaintiff was given blood transfusions and was transferred to the intensive care unit. Dr. Magsaysay did not consult with other specialists upon the transfer of plaintiff to intensive care.

On December 24, plaintiff reported no chest pains. Her thighs continued to be swollen, and blood transfusions were continued. Plaintiff was transferred to St. James Hospital on December 25, 1973. She was discharged on January 4, 1974. This action was filed on December 16, 1975.

At trial, the vice-president of the Hospital's nursing department testified as to the manner in which nurses make records in a patient's chart. Five nurses who had been involved in the postoperative care of plaintiff testified as to the procedures by which nurses monitor the patient and make notations in the medical chart.

Nurse Esperanza Buscaino testified as to the entry she made on December 17, 1973, indicating plaintiff's legs were wrapped in Ace bandages when plaintiff was brought into the nursing unit. Nurse Buscaino also indicated in plaintiff's chart on December 20 that plaintiff was crying and complaining of numbness in her left leg. She had noted that plaintiff was ambulated to the washroom with assistance on that day. Nurse Buscaino also stated the chart first revealed signs of bleeding on December 23. She could not recall if she ever removed the bandages on plaintiff's legs to examine them, but stated that nurses would normally check for bleeding and circulation problems as part of their general care.

Nurse Margaret Jagielski testified patients being treated with heparin are monitored for signs of bleeding. During her care of plaintiff she observed no signs of bleeding. Nurse Phyllis Harnish could not recall if plaintiff had bandages on her legs. She also stated a patient being treated with heparin would be monitored for signs of bleeding. No such signs appeared on plaintiff's chart through December 22, when Nurse Harnish made her last entry. Nurse Virginia Agcayab stated the cart revealed plaintiff was "ambulatory" on December 22. This meant plaintiff had been able to sit up and stand. Nurse Jan Joswiak, who cared for plaintiff during her treatment in the Hospital's intensive care unit, testified plaintiff's condition improved in the intensive care unit.

Dr. Magsaysay testified under section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60). He is a specialist in vascular surgery and has authored part of a text on that subject. He knew plaintiff when she worked at the Hospital. She had asked him if he could perform surgery on her varicose veins. He agreed to perform the surgery before having physically examined plaintiff, but ordered her to undergo preoperative testing at the Hospital. The decision to proceed with the surgery was, in his opinion, mutual.

Dr. Magsaysay testified he and an intern performed a physical examination on plaintiff on the morning of December 17 just prior to surgery. He stated that contrary to his previous deposition testimony, this examination did not take place on December 16, indicating a wrong date on the examination report. Plaintiff informed Dr. Magsaysay she had been previously hospitalized for a leg condition called thrombophlebitis. (An inflammation of the vein which precedes the formation of a thrombus or clot within the vein.) An examination of her legs revealed painful swelling of both knees, but plaintiff did not complain of other leg pains. He noted her previous history of excessive bleeding following surgery.

Dr. Magsaysay testified patients must be examined directly prior to this type of surgery to be sure there were no acute problems which could rule out surgery. There were no indications of any such problems in this case, and no factors which would contraindicate the surgery. The results of the Partial Thromboplastin Time Test (PTT, a measurement of clotting time), although above normal, ruled out a potential complication of excessive bleeding as the abnormality was "not significant." The doctor did not perform a preoperative venogram (vein test) on plaintiff. There were inherent risks involved in such a test. Also, the three clinical signs which would indicate the need for a venogram were not present.

Dr. Magsaysay stated plaintiff had no abnormal complaints on the first day after surgery. On December 19, however, she complained of chest and left calf pain. He personally examined her and removed her bandages to inspect the legs. Her condition was indicative to him of a possible pulmonary embolism, which could prove fatal. He ordered a lung scan and heparin therapy. Dr. Magsaysay did not perform additional PTT or Lee White blood clotting tests as it is rare to have complications of bleeding with the use of heparin. In his opinion, those tests would not have been useful in treating a patient for a pulmonary embolism with heparin. He admitted bleeding was a possible side effect of heparin treatment, but noted that bleeding is not usually fatal, while a pulmonary embolism may be fatal. Dr. Magsaysay did not perform a blood gas study as its results would not necessarily be consistent with the diagnosis. Similarly, the fact that the pulmonary scan taken on December 20 was normal did not rule out the diagnosis of a pulmonary embolism whereas the EKG examination was supportive of this diagnosis. In Dr. Magsaysay's opinion it was necessary to treat plaintiff for a potential pulmonary embolism until it had been ruled out.

Dr. Magsaysay testified plaintiff was continually monitored for postoperative bleeding by observation of her vital signs and blood pressure in addition to regular inspections of her operative sites. He stated that the notes concerning his examination of plaintiff on December 20 could not have been made without having first removed her bandages. The pain and pallor plaintiff experienced prior to December 22 did not necessarily indicate a loss of blood.

In Dr. Magsaysay's opinion, plaintiff was very ill when transferred to the intensive care unit on December 23. Although a Hospital bylaw stated that a treating physician should consult with a specialist when a patient is transferred to the intensive care unit, Dr. Magsaysay did not do so in this case. He believed that because plaintiff's complication arose within the area of his own specialty, vascular surgery, it was unnecessary to consult with another specialist in this field. Dr. Magsaysay noted plaintiff improved while in the intensive care unit.

Dr. Husang Javid, a specialist in cardiovascular surgery, testified for plaintiff. Many of his opinions were expressed in response to a lengthy hypothetical question. He stated that before a vein stripping, a physician would require the patient's medical history of previous leg problems. A physical examination is also important to determine the tendency for bleeding. A venogram would be helpful to determine the presence of vein problems, but was not a routine procedure before a vein stripping operation due to its own possible complications.

Dr. Javid stated the diagnosis of a pulmonary embolism is the same whether a patient has been operated upon or not. If a physician detects physical signs of such a condition, a lung scan should be performed. If, however, the results were negative, a blood gas study and venogram should be performed before heparin is administered. A failure to perform such tests would be outside the standard of care as it existed in the community in 1973. Similarly, a failure to perform Lee White tests before and during heparin treatment would also be outside the standard of care. The administration of percodan to a patient being treated with heparin without having performed the Lee White test would also be outside the standard of care. Dr. Javid also believed the detection of plaintiff's bleeding was not "prompt" and that it was outside of the standard of care not to have conducted blood counts while treating a patient with an anticoagulant. Dr. Javid also believed a patient undergoing heparin treatment for a pulmonary embolism should get as complete bed rest as possible. In his opinion, it would not be "good" if such a patient were to be "ambulated about the hospital."

On cross-examination, Dr. Javid stated it would not be proper for a vein stripping to be performed without the surgeon having first examined the patient's legs. He noted the medical records indicated an examination was performed, but the chart did not give complete details. Dr. Javid believed vein stripping is a common procedure. It was not routine to conduct a venogram prior to surgery because of its risks. Dr. Javid also noted there were error factors involved in the lung scan and blood gas tests in determining the presence of a pulmonary embolism. He agreed a pulmonary embolism can be fatal whereas bleeding can be treated. Heparin was the proper treatment for a pulmonary embolism, and transfusions were the proper treatment for bleeding. Dr. Javid believed bleeding could have been possible even if all of the above-detailed tests had been performed. In his opinion, the treating physician would have been in the best position to determine the proper course of treatment.

Dr. Theodore Schafer is a general practitioner and was a former treating physician of plaintiff. He testified he was not an expert in vascular surgery, and could not offer an "expert" opinion on the subject. Any criticism of Dr. Magsaysay and his treatment of plaintiff should, in his opinion, be left for the "experts." Dr. Schafer did state he generally advises women to postpone having varicose vein surgery until after having children.

Dr. Dinesh Desai is a specialist in internal medicine practicing at St. James Hospital. He treated plaintiff when she was transferred to St. James Hospital in December 1973 and when she was subsequently hospitalized for thrombophlebitis in September 1974. It was his opinion that the drug percodan should not be given to a patient being treated with heparin because it could enhance the anticoagulant effect of heparin. When asked if a postphlebitic syndrome could occur from a vein stripping performed on a patient with a past history of thrombophlebitis, Dr. Desai stated such a result "may or may not be a speculation."

Dr. Desai stated plaintiff's condition had been improving prior to her admission to St. James Hospital. He concurred with the other physicians that a pulmonary embolism can be life threatening and is properly treated with heparin. Dr. Desai did not believe it necessary to perform a venogram on plaintiff on either occasion he treated her because of the hazards involved in such a procedure. Dr. Desai would not venture an opinion as to whether a subsequent flareup of thrombophlebitis after surgery would indicate something had been improperly done. He stated he was not an expert in that field.

Plaintiff's mother, Mrs. Horan, testified she noted plaintiff's legs were swollen and discolored when visiting her daughter on December 18. This swelling and discoloration had increased when she saw plaintiff on December 19 and 20. On December 21, Mrs. Horan noted plaintiff's legs to be "grossly swollen" and heavily discolored. By December 22, plaintiff was "stuporous," and by December 23 plaintiff was unable to talk or sit up.

Mrs. Horan testified she never observed any bandages wrapped around plaintiff's legs. She did not recall seeing either Dr. Magsaysay or any of the nurses examine plaintiff. She did not mention the condition of her daughter's legs to any of the nurses. Mrs. Horan believed it would be incorrect to state that plaintiff's legs had been bandaged or that plaintiff had been able to complain between December 21 and December 25. She did not believe it was necessary to speak to the hospital staff concerning her daughter's condition until she had decided to transfer plaintiff to St. James Hospital.

Plaintiff testified she had been employed at the Hospital in the X-ray department for over a year prior to December 1973. At that time she was in her first semester of nursing school. She had varicose veins since 1965. Plaintiff testified she had three conversations with Dr. Magsaysay. He told her surgery could correct her difficulty with a minimum of problems. She stated she did not ask him for the operation nor did she even initiate the discussion of surgery. One week prior to surgery, Dr. Magsaysay asked her some general questions, but did not inform her of the risks of the operation.

When plaintiff checked into the Hospital for her operation, she was given a computerized history form to complete. A physician or intern, whom she did not know, went over it with her. She could not recall any physical examination on the morning before surgery by any physician, and Dr. Magsaysay did not see her. She had no recollection of the days following surgery except that her legs were swollen and she remembered experiencing pain and discomfort. However, in her deposition she stated she made complaints of chest and leg pains on those days. Also, in her deposition she recalled receiving drug treatments during those days. After her operation, the pain and discomfort were worse than before. She eventually recovered and completed her nurse's training. Plaintiff was subsequently hospitalized for her leg condition and detailed the costs incurred.

On cross-examination, plaintiff admitted she had read the surgery consent form before signing it. She had been aware it was important to give an accurate medical history when she had filled out the computerized form. She admitted she had not told the intern her knees were swollen when her history was reviewed. Plaintiff could not recall if her legs had been bandaged after the operation.

Plaintiff stated she did discuss the advisability of surgery with Dr. Magsaysay during their second conversation prior to surgery. She was aware the consent form she signed stated she had full knowledge of the operation. Dr. Magsaysay answered all questions concerning the operation. Plaintiff had consulted her textbooks about vein stripping and was aware that complications could result. Plaintiff also admitted the greater part of the swelling and discoloration of her legs eventually disappeared. She has since been able to return to work.

Dr. Stanton Polin, a certified specialist in vascular surgery, testified for defendants. In response to a hypothetical question, Dr. Polin stated he believed the attending physician practiced within the usual standard of care. Dr. Polin believed a condition of preoperative knee swelling and leg cramping, as well as previous thrombophlebitis, would not necessarily contradict a vein stripping. In his opinion, the record did not indicate a necessity for a preoperative venogram, partially due to the inherent risks in such a procedure.

Dr. Polin testified the record indicated a strong suspicion that plaintiff had developed a possibly life-threatening pulmonary embolism after the operation. He had no criticism of the treatment administered. Failure to treat the patient in this manner would, in his opinion, be subject to criticism. He believed heparin to be the most commonly used therapy for a pulmonary embolism. Dr. Polin stated it was within the standard of care to treat a patient with heparin without performing PTT and Lee White tests due to the inaccuracies of such tests. Such inaccuracies, Dr. Polin stated, could mislead a treating physician. Dr. Polin also noted that while bleeding can be controlled, a pulmonary embolism could be fatal. He also believed that a physician who transfers a patient to the intensive care unit need not consult with another specialist if the patient's problem lies within the expertise of the transferring physician.

On cross-examination, Dr. Polin stated a venogram could prove helpful, as it would indicate a patient's active phlebitis prior to surgery. Signs of such a condition would be edema, calf tenderness, and a positive Homan's sign. Dr. Polin believed that while there was a possibility of bleeding during heparin administration to a recently operated patient, bleeding would be evidenced by physical signs of which there were no indications on plaintiff's chart. Postoperative pain could be a sign of ...

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