Fitzgerald v. Manning

• Decision Date: 20 May 1982
• Docket Number: No. 78-1109,78-1109
• Parties: Russell T. FITZGERALD, Appellant, v. Preston C. MANNING, Jr., M. D., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 341

679 F.2d 341

Russell T. FITZGERALD, Appellant, v. Preston C. MANNING, Jr., M. D., Appellee.

No. 78-1109.

United States Court of Appeals Fourth Circuit.

Argued Jan. 8, 1982.

Decided May 20, 1982.

T. David Thelen, Lovingston, Va. (Eggleston & Thelen, Lovingston, Va., Gordon W. Poindexter, Jr., Cooley, Poindexter, Burns & Marks, Waynesboro, Va., on brief), for appellant.

James G. Welsh, Staunton, Va. (Timberlake, Smith, Thomas & Moses, P. C., Staunton, Va., on brief), for appellee.

Before RUSSELL, HALL and MURNAGHAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is a medical malpractice action. At the conclusion of the plaintiff's case, the defendant moved for a directed verdict. The District Court granted the motion and judgment for the defendant was duly entered. From that judgment, the plaintiff has appealed. We affirm.

The plaintiff's illness, with its consequent hospitalization and treatment resulting in this action, began with nausea as he was working on the second shift at the Westinghouse plant in Verona, Virginia, on August 17, 1972. Because of the nausea he went to the restroom. There he began to vomit "something black." He assumed at the time that he had merely regurgitated the hamburger, along with some beer, which he had had shortly before. Later, between ten and ten-thirty o'clock that night, he became ill again and "this time it was pure red blood" that he vomited. He reported his condition to his supervisor and requested permission to leave. Though given such permission, he remained at the plant until the shift change. At that time, he joined his fellow employee who was riding with him, and was proceeding through the parking lot to his car. He began vomiting blood profusely and almost constantly before reaching the car. His companion refused to allow him to go home in that condition and they went instead to King's Daughters' Hospital in Staunton. He arrived at the hospital at about one o'clock on the morning of August 18. The plaintiff had no regular physician and the hospital called the defendant who responded almost immediately and who remained continuously in attendance on the plaintiff for almost twenty hours steady.

After the plaintiff was admitted, and before the defendant had arrived at the hospital, a nurse had accumulated in a basin the blood the plaintiff had vomited after his arrival. When the defendant reached the hospital, he noted the basin of blood and inquired of the nurse on duty how long the plaintiff had been vomiting. When told, he directed that a blood sample be instantly taken and ordered blood for immediate transfusions, administered regularly over a four-hour period. The defendant also ordered that the plaintiff's blood pressure, respiration and pulse be noted each half-hour, that his urine output be followed, that his bleeding be monitored systematically, in the hope that bleeding might be stanched by normal remedies, and that an antacid be given him through a nasal tube each hour.

By early morning of August 18, the flow of blood from the plaintiff's mouth had not moderated. The defendant had already attempted without success to pump out the plaintiff's stomach. Dr. Pittman, an experienced internist with a specialization in gastroenterology, whose assistance the defendant had secured, attempted to arrest the blood flow by applying ice water lavage (or rinsing of the stomach) or, as the plaintiff described it, by "freezing" the stomach. Antispasmodic medication had also been prescribed. When none of these actions reduced substantially the flow of blood, the defendant made a provisional diagnosis of "probable acute bleeding, duodenal or gastric ulcer, some tumor, such as Leiomyoma, possible, alcoholic gastritis, doubtful," and concluded that there was "no alternative to operating (in order) to go in and see what was causing (the bleeding)." He accordingly advised the defendant that it appeared likely he had an ulcer and that an exploratory operation was necessary. After the defendant explained the operation to the plaintiff, the latter agreed to the operation and signed a written waiver to that effect.

The operation itself, performed during the morning of August 18 under a general anesthetic, was "designed primarily (for) exploratory" purposes. When the plaintiff's abdomen was opened in the course of this "exploratory" operation and the stomach was examined, a large clotting of blood was observed in the upper part of the stomach. The defendant removed these blood clots and, in the course of so doing, discovered a few superficial stomach lacerations which he sutured. These lacerations he determined could not have caused the bleeding. "(I)t was apparent" at this point in the examination, "that a good bit of the bleeding was coming from the esophagus." The defendant requested Dr. Pittman's advice on the use of esophagoscopy (inspection of the esophagus through a lighted tube through which bleeding sites can be visualized) and the use of a Senstaken-Blakemore tube. Dr. Pittman recommended against esophagoscopy until the incision was enlarged. His advice was accepted by the defendant.

While Dr. Pittman was "scrubbing" preliminary to assisting the defendant in an examination of the plaintiff's esophageal area, the defendant, in an effort to stop the flow of blood, attempted without success to insert a Senstaken-Blakemore tube (a device containing two balloons which, when inflated, permits pressure to be applied to the walls of the esophagus or stomach, or both, in order to stop bleeding from small lacerations or bleeding sites on the walls of these parts of the bowel) in plaintiff's abdomen. When Dr. Pittman was in position to assist the defendant during the examination of the esophageal area, the defendant proceeded to enlarge the excision, and opened the lower stomach. Using an esophagoscope, both Dr. Manning and Dr. Pittman checked the esophageal area. They found no lesion or bleeding sites. The defendant then placed the Senstaken tube in the esophagus, inflated it properly and closed the esophagus.

Anxious that he had done everything he could under the circumstances to alleviate the plaintiff's condition, the defendant at this point telephoned Dr. Harry Wellons, a thoracic cardiovascular surgeon at the University of Virginia Hospital at the University of Virginia in Charlottesville, for any "suggestions he might have for management (of plaintiff's case) in case of further bleeding." As the defendant recalled it, Dr. Wellons had "no specific" suggestions "except that we should esophagoscope the patient before carrying out any exploration if the patient bled again ... (and) that we make a tube gastrostomy (that is an opening in the stomach through which we put a tube leading to the outside) to check more easily on any recurrent bleeding and to allow any nasogastric tube to be removed after a day or two." Dr. Wellons, in his testimony said that "(t)he only specific recommendation that (he could) recall (giving the defendant was) the performance of the gastrostomy." The suggestion of Dr. Wellons for the use of a tube gastrostomy was immediately followed.

After the operation on August 18, the defendant followed closely the plaintiff's condition. By August 21, the Senstaken tube had been removed but not the chest tube for drainage. The defendant was preparing to take a short vacation, which had been long planned. Before doing so, he reviewed carefully the plaintiff's condition. No evidence of further bleeding was observed at the time, the "(c)hest (of the plaintiff) was essentially clear," the plaintiff's "(p)rogress (appeared) satisfactory" and there was, in the opinion of the defendant, no "reason to suspect that (the) plaintiff's esophagus might not be intact." The defendant's opinion was confirmed by the nurse's notes, which characterized the plaintiff's condition as "good", though he complained of "being thirsty" and the "(t)ubes (were) bothering him." The defendant concluded under these circumstances and without any evidence of a fistula, that it was advisable to provide the plaintiff with some nourishment. He accordingly directed that the patient be permitted to have "clear liquids with milk." The defendant, in addition, gave orders for the irrigation with sterile saline solution regularly of the gastrostomy tube. After giving these orders at about midday of August 21, the defendant departed for his planned vacation, leaving the patient in the care of his partner, Dr. Todd, an older and more experienced surgeon.

Dr. Todd visited the plaintiff once in the afternoon and a second time in the early evening of August 21. He ordered an x-ray of the patient to be taken the next morning (August 22). At 7:30 on the morning of August 22, Dr. Todd visited the patient again. He noted on this occasion a significant increase during the night in the drainage through the chest tube. He concluded from this that there had developed "a leak through the wound in the esophagus, which was draining to the outside" and, on that basis, ordered all mouth feeding discontinued. The reason for such order was to prevent any leakage of food from the esophagus into the pleural cavity through the cavity. Dr. Todd further ordered that antibiotics be administered in order to overcome any possible infection that might develop. From this point on, the plaintiff's condition remained under constant observation by both Dr. Todd and Dr. Pittman until August 28. By the 26th or 27th it was thought that an infection of the lung had developed and additional antibiotics were ordered.

On August 28, the defendant returned. He became concerned when he visited the plaintiff that the latter's condition might be adversely affected by malnutrition. He hesitated to use intravenous feeding at the time because of the difficulty of hyperalimentation with all the chest drainages and the continued openings in the plaintiff's chest and abdomen. He determined under the circumstances to permit...