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November 10, 1971

George W. ROSE, Jr., an infant, by and through his father and next friend, George W. Rose and George W. Rose, Plaintiffs,
Arcadius H. HAKIM and Weston Bruner, Jr., et al., Defendants

William B. Jones, District Judge.

The opinion of the court was delivered by: JONES

By an amended complaint this medical malpractice action was brought by plaintiffs against Arcadius H. Hakim, an ear, nose and throat surgeon (Hakim), a number of physicians practicing medicine in partnership as anesthesiologists (Associated Anesthesiologists) and the Washington Hospital Center (Hospital). The plaintiffs are George W. Rose, Jr. (infant plaintiff) and his father George W. Rose (father plaintiff) who brought the action for and on behalf of the infant plaintiff as well as in his own behalf.

 Before trial plaintiffs settled with and dismissed Hakim and Associated Anesthesiologists from the action. Plaintiffs thereafter proceeded to trial by the Court and jury of their action against Hospital. This resulted in jury verdicts in favor of the plaintiffs. Infant plaintiff was awarded $265,000.00 and father plaintiff was awarded $29,777.25. *fn1"

 In their pleadings Hakim and Associated Anesthesiologists each cross-claimed against Hospital for indemnification or contribution. *fn2" Hospital cross-claimed against Hakim and Associated Anesthesiologists. In each instance the cross-claim was for indemnification. At pretrial it was stipulated by the parties that the cross-claims would be tried by the Court without a jury. At the commencement of the trial Hospital dismissed its cross-claim against Hakim.

 The cross-claims were tried by the Court without the jury contemporaneously with the jury trial of plaintiffs' action against the Hospital. The jury was excused from the courtroom when evidence relating solely to the cross-claims was being received by the Court. At no time was the jury informed of either the amount or the fact that Hakim and Associated Anesthesiologists had settled with plaintiffs. Thus the Court has before it the evidence received out of the presence of the jury and the evidence received in the jury case. *fn3" From that evidence the Court finds the facts to be as follows.

 Hakim is a private physician and surgeon who specializes in treating conditions affecting the ear, nose and throat. The father plaintiff employed Hakim to care for the infant plaintiff whose tonsils and adenoids were infected. For the purpose of surgically removing the tonsils and adenoids and correcting an inflamed condition of the middle ear, Hakim arranged for the infant plaintiff to be admitted to the Washington Hospital Center. On February 21, 1968, infant plaintiff, then a five year old boy, was admitted to the Hospital as Hakim's private patient. Before surgery Hospital personnel performed the required tests and made the appropriate physical examination of the infant plaintiff. The tests and examination disclosed no reason for not undertaking the planned surgery.

 To perform the surgery Hakim placed himself at the head of the infant plaintiff and Dr. Ho stood at the side of the infant plaintiff. Several times during the surgery Hakim told Dr. Ho he needed more exposure, that is greater opportunity to see into the small oral cavity of the infant plaintiff. This needed exposure was made available to the surgeon. About three minutes before the completion of the tonsillectomy and adenoidectomy Hakim noticed the blood of infant plaintiff getting dark. He called upon the anesthesiologist, Dr. Ho, to administer oxygen. The blood lightened in color and Hakim continued with the surgery. Again the blood darkened and again Hakim requested Dr. Ho to administer more oxygen. The blood again lightened in color. Hakim saw the blood lightening and scrub nurse Lewis observed infant plaintiff's lips return to normal from a blue color. During this period of darkening and lightening in the color, the blood continued to spurt from capillary vessels in infant plaintiff's oral cavity which evidenced the fact that the heart was functioning.

 As Hakim completed the tonsillectomy and adenoidectomy he positioned the infant plaintiff's head to perform a myringotomy, the surgical procedure to correct the ear involvement. At that time he asked circulating nurse Bowman to check the infant plaintiff's pulse. She did so and reported that he had no pulse. External cardiac pressure, pure oxygen by positive pressure squeeze bag and various drugs were immediately administered to resuscitate infant plaintiff. At the same time Hospital's emergency signal -- "code blue" -- was given. In response to that signal a number of other physicians went immediately to the operating room. Additional drugs were administered and a cardiac monitor was attached to infant plaintiff. Two and one-half minutes after nurse Bowman reported there was no pulse the infant plaintiff's heart beat resumed.

 At 2:30 P.M. on February 21, 1968, following the return of infant plaintiff's heart beat, he was transferred to the recovery room. There Hakim ordered intravenous fluids and medication to drip at the rate of 50cc per hour, a reduction and maintenance of body temperature at 90 DEGREES Fahrenheit through hypothermia, 12.5 grams of Manitol intravenously in a single dose, 22.3 milligrams of sodium bicarbonate and 600,000 units of Wycolline to be given daily. He also ordered that infant plaintiff's vital signs be checked, a blood chemistry examination be made, a record of urine output be maintained, an electroencephalogram be made and a neurological consultation be had. Later he gave an additional order for 10 milligrams of Hykenone to be given intravenously. All of this was in accord with proper medical practice.

 Two hours after the cardiac arrest and in the recovery room infant plaintiff was examined in consultation by Dr. Hakim, Dr. Bruner, one of the Associated Anesthesiologists' partners, Dr. Hugo Rizzoli, the head of the Department of Neurosurgery at the Hospital, and Dr. Cooney and Dr. Koulouris, neurosurgery residents employed by Hospital. After examining infant plaintiff Dr. Rizzoli stated in his consultation note that it was his impression that infant plaintiff had experienced cerebral anoxia but that he believed he would recover. He recommended that hypothermia be continued. At trial Dr. Rizzoli explained his note "will recover" meant infant plaintiff would survive in terms of life and death.

 Sometime in the late afternoon or early evening of February 21, 1968, Hakim ordered infant plaintiff transferred to the intensive care unit of the Hospital. The exact time of the transfer was to be determined on the basis of infant plaintiff's condition by Dr. Shibuya, the anesthesiologist on duty the night of February 21-22, 1968, and who was with the infant plaintiff in the recovery room. Shibuya was one of the Associated Anesthesiologists' partners.

 At 10:30 P.M. on February 21, 1968, Dr. Shibuya transferred infant plaintiff to the intensive care unit. At that time Shibuya was of the opinion that infant plaintiff was making a good recovery. Shibuya found him becoming more reactive and alert, breathing on his own and in a satisfactory physical condition. In Shibuya's opinion infant plaintiff would recover from the cardiac arrest in the operating room.

 In anticipation of the transfer of infant plaintiff to the intensive care unit a nurse from that unit went to the recovery room prior to 10:30 P.M. to become informed of infant plaintiff's condition and to make arrangements for proper equipment and supplies for his care in the unit. But when infant plaintiff arrived in the unit the only resuscitator assigned to the intensive care unit either wasn't there, or if it was there it was broken and inoperative. Moreover, the unit did not have a glass thermometer that would register lower than 94 DEGREES Fahrenheit temperature, although there were such thermometers elsewhere in the Hospital. The unit nurses knew or in the exercise of ordinary care should have known that Hakim's written orders called for maintaining infant plaintiff's temperature at 90 DEGREES Fahrenheit. They also knew that the telethermometer, which was attached to the hypothermia machine (an apparatus to lower body temperature) was not always accurate. Furthermore, the intensive care unit either did not have, when needed for infant plaintiff, a heart monitor, with a defibrillator on it to shock the heart if it started to fail or to beat abnormally, or if it did have such a monitor it was not attached to the infant plaintiff.

 When infant plaintiff arrived in the intensive care unit a nurse, an employee of the Hospital, was assigned to exclusively care for him. When the nursing staff changed at 11:00 P.M. February 21, 1968, this exclusive nursing arrangement was continued with another Hospital nurse being assigned. While the latter was a graduate nurse, she was not a registered nurse since she had passed only two of the subjects required to achieve that status. Neither at the time of her employment nor at any time prior to February 22, 1968, did any Hospital personnel ever inquire of her as to whether she was a registered nurse.

 Following his arrival in the unit the infant plaintiff's temperature began to rise with accompanying minor convulsions every fifteen minutes. The temperature rise and small convulsions every fifteen minutes were observed and recorded by the unregistered nurse on duty between 11:00 P.M. February 21 to 7:30 A.M. February 22, 1968, but she did not notify Hakim of those facts nor did anyone else. Before Hakim left the Hospital in late afternoon or early evening of February 21, he notified the nurses where he could be located and that they were to call him if there were any questions. Moreover, Hakim's office and home telephone numbers were recorded and readily available for the nurses' use and this was known to the nursing staff. If Hakim had been called, he could have ordered various drugs to lower the temperature.

 Following a cardiac arrest it is good medical practice to reduce and maintain the body temperature of the patient. Reduced temperature diminishes the demand of body tissues for oxygen, particularly the tissues of the brain and the myocardium of the heart. Increasing body temperature increases the brain's demand for oxygen and unless corrected will result in seizures or convulsions. It was to give the infant plaintiff's brain and heart the rest needed after the cardiac arrest that Hakim in his first orders in the recovery room ordered hypothermia at 90 DEGREES Fahrenheit.

 Hypothermia as used and understood by Hakim and Hospital's employees is a mechanical cooling process consisting of a blanket placed on the patient. The blanket contained tubing through which cooling material circulated. The blanket was connected to a machine which caused the circulation of the cooling material. The machine may be set to operate automatically at the desired constant temperature and if working properly it maintains that temperature or a temperature within a permissible variable one-half degree. A telethermometer is a part of this equipment and through a tube records the temperature rectally. If in proper working condition, it records the actual body temperature.

 Hypothermia was applied to infant plaintiff in the recovery room and by 6:20 P.M. the temperature was reduced to 90.5 DEGREES. A different hypothermia machine was used in the intensive care unit and it did not function as it should as the temperature recordings by the nurses attested. However, it was not before 6:55 A.M. or 7:00 A.M. on February 22, that infant plaintiff's temperature was checked with a glass thermometer. A nurse took infant plaintiff's temperature with a glass thermometer which she borrowed from the Hospital's emergency room. By comparison she ascertained that the telethermometer was recording a temperature 4.6 DEGREES lower than the actual temperature. The intensive care unit hypothermia machine telethermometer recorded the following temperatures: February 21, 10:30 P.M. 92 DEGREES, 11:00 P.M. 91.5 DEGREES, 12:00 midnight 92 DEGREES, February 22, 1:00 A.M. 93.5 DEGREES, 1:30 A.M. 95.4 DEGREES, while in fact each was 4.6 DEGREES higher. And it was at 1:45 A.M. that infant plaintiff had the first of three grand mal convulsions.

 The attending nurse, upon noting the rising temperature during the night, did not give him aspirin, or increase the intravenous medication he was receiving, or pack him in ice, or sponge the infant plaintiff with alcohol. All of those things she should and could have done for her patient without further orders from a doctor. Her failure to do so failed to meet the standard of good nursing practice.

 Not only did the temperature chart indicate that the hypothermia machine telethermometer was not working properly, but also the nursing staff in the intensive care unit knew that the telethermometer did not always accurately record the true temperature. Possessing such knowledge good nursing practice required checking the accuracy of the telethermometer with a glass thermometer long before the grand mal seizure of 1:45 A.M. February 22. Nor was it good nursing practice to permit infant plaintiff's temperature rise to 95.4 DEGREES as recorded by the malfunctioning telethermometer when the doctor's orders were to maintain it at 90 DEGREES.

 At 1:45 A.M. on February 22, 1968, the assigned nurse was checking infant plaintiff's vital signs when he had a grand mal convulsion and stopped breathing. There was no resuscitator available in the intensive care unit and a nurse gave mouth to tube resuscitation for a period of 10 to 15 minutes until a Bird respirator was brought from the Hospital's inhalation therapy unit and connected to infant plaintiff. During the mouth to tube resuscitation the nurse applying it noted infant plaintiff's pulse beats. Again at 3:30 A.M. and then at 5:20 A.M. on February 22, 1968, he had grand mal convulsions. At 6:50 A.M. of that day the nurse assigned to infant plaintiff noted that he was not getting proper air exchange, that is he was being deprived of the necessary amount of oxygen. She called the inhalation therapy unit. A member of that unit arrived at 7 A.M. and discovered an obvious kink in one of the tubes of the Bird respirator and corrected it.

 Hakim was not notified of any of the three grand mal convulsions or the respirator problem. He first learned of those changes in the patient's condition when the physician in charge of the ear, nose and throat department of the Hospital called him later in the morning. At that time he was advised that the infant plaintiff had been transferred to the care of the Hospital's department of neurosurgery since his problems were no longer of the ear, nose and throat category.

 From within two and one-half minutes after the cardiac arrest in the operating room until the first grand mal convulsion at 1:45 A.M. on February 22, 1968, infant plaintiff was able to breathe for himself. Commencing with the first grand mal convulsion infant plaintiff was unable to do his own breathing. The hospital chart maintained by the nursing staff records no breathing -- respiration -- by infant plaintiff between 1:45 A.M., the time of the first grand mal convulsion, and 2:10 A.M. on February 22. Nor was any respiration recorded for 7:15 A.M., the approximate time of the kinking of the tube in the respirator. The Bird respirator had to perform or assist his breathing for some considerable period of time. It was not until April 18, 1968, and thereafter that the respirator was no longer used at any time to breathe for him or to assist him in breathing. During the ten minutes that the respirator was malfunctioning on February 22, 1968, in the intensive care unit because of the kink in the tube, plaintiff's brain was deprived of needed oxygen which resulted in increased anoxia.

 Contrary to good hospital practice, Hospital failed to keep or to preserve neurological response charts in the intensive care unit from the time infant plaintiff arrived there at 10:30 P.M. February 21. The first record of neurological responses produced by Hospital was a February 22, 9 A.M. notation. However, one of the Hospital's neurosurgeon residents reported in the consultation record that infant plaintiff had suffered a cardiac arrest during the night of February 22, 1968, as did the Hospital's cardiologist in another consultation record. The latter stated that he recorded a second cardiac arrest after conferring at about 12:30 P.M. on February 22, 1968, with a nurse, or a resident or an intern directly connected with infant plaintiff's case. But at the time he testified at trial he believed, even though he recorded otherwise, that there was not a second cardiac arrest during the night or early morning hours of February 22. On cross-examination Dr. Manchester was referred to a consultation note made by Dr. William Lyons, a thoracic surgeon. On February 22, Dr. Lyons had been called to perform a tracheostomy to replace the endotracheal tube which had been inserted in infant plaintiff. His note read: "There had been some mechanical difficulties in ventilating with the endotracheal tube and a period of hypoxia had occurred this A.M." Dr. Manchester admitted that the recorded "period of hypoxia" could be a cause of a cardiac arrest. "Hypoxia" as defined by Dr. Lyons means a condition of decreased oxygen in the blood. The mechanical difficulties Dr. Lyons referred to were reported to him by Hospital's personnel and were encountered while infant plaintiff was on the Bird respirator during early morning hours of February 22.

 The general nursing record which advised the nurses of Hakim's home and office telephone numbers, also ordered the nurses to record neurological signs. But as noted no such record was kept prior to 9:00 A.M. on February 22, 1968, notwithstanding what had transpired with respect to the condition of infant plaintiff from the preceding midnight. All who testified with respect to the significance of such signs acknowledged that they were of the utmost importance to physicians. The recording of them by nurses was the means of communicating such information to the physician. Not to keep such a record was recognized as a failure to conform to the standard of good nursing practice.

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