Cangelosi v. Our Lady of the Lake Regional Medical Center

• Court: Louisiana Supreme Court
• Writing for the Court: MARCUS; CALOGERO; DIXON, C.J., and DENNIS; LEMMON; CALOGERO; DIXON; DENNIS; MARCUS; WATSON; COLE; MARCUS; WATSON
• Citation: Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La. 1989)
• Decision Date: 23 October 1989
• Docket Number: No. 89-C-1093,89-C-1093
• Parties: Marion L. CANGELOSI, Sr., et ux., v. OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER, et al.

Page 654

564 So.2d 654

Marion L. CANGELOSI, Sr., et ux., v. OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER, et al.

No. 89-C-1093.

Supreme Court of Louisiana.

Oct. 23, 1989.

Dissenting Opinion of Justice Dennis

Nov. 20, 1989.

Rehearing Granted Dec. 7, 1989.

Opinion on Rehearing April 20, 1990.

Malcolm Dugas, Jr., George M. Papale, Stumpf, Dugas, LeBlanc, Papale & Ripp, Gretha, for plaintiffs-appellants.

Roger Fritchie, T. MacDougall Womack, Durrett, Hardin, Hunter, Dameron & Fritchie, Herbert J. Mang, Jr., Glen Scott Love, Mathews, Atkinson, Guglielmo, Marks & Day, F.W. Middleton, Jr., Vicki M. Crochet, Taylor, Porter, Brooks & Phillips, William N. Faller, Bell, Faller & West, Baton Rouge, Robert Kleinpeter, for defendants-appellees.

MARCUS, Justice.

Marion A. Cangelosi, Sr. and his wife brought this medical malpractice action to recover damages for injuries sustained by Mr. Cangelosi. Defendants were Our Lady of the Lake Hospital, Inc., Dr. Ronald A. Radzikowski, Dr. James S. Osterberger, Jr., Dr. William Booth, Dr. Donald Cowick, Dr. Marshall Sommers, Dr. Martin Peuler, Anesthesiology Group Associates, and Ms. A.L. Ashbaugh. Plaintiffs alleged that, at and/or between the intubation and extubation ¹ accompanying gallbladder surgery negligence caused a fracture of two tracheal rings leading to a permanent tracheotomy and subsequent medical procedures.

A medical review panel ruled unanimously in favor of all defendants. Mr. and Mrs. Cangelosi then filed this suit. Plaintiffs voluntarily dismissed Drs. Cowick, Booth, and Sommers. ² The remaining defendants moved for a directed verdict at the close of the plaintiffs' case. The trial judge took the motions under advisement. At the close of all the evidence, he granted directed verdicts in favor of Drs. Radzikowski and Osterberger, but denied the motions made by Our Lady of the Lake, Ms. Ashbaugh, Dr. Peuler, and Anesthesiology Group Associates. Next, finding that the doctrine of res ipsa loquitur did not apply to any of the defendants because no evidence showed that the injury would not have occurred in the absence of negligence, the trial judge refused to instruct the jury on the doctrine. The remaining defendants then made new motions for a directed verdict which the trial judge granted. Plaintiffs appealed. The court of appeal affirmed. ³ Upon plaintiffs' application to this court, we granted certiorari to determine the correctness of that decision. ⁴

The issues presented are whether the trial judge was correct (1) in determining that the doctrine of res ipsa loquitur did not apply to this case and (2) in granting defendants' motions for a directed verdict at the close of all the evidence.

FACTS

Mr. Cangelosi entered Our Lady of the Lake Regional Medical Center in Baton Rouge on November 26, 1982 to undergo gallbladder surgery. He was 68 years old. Dr. Radzikowski, Mr. Cangelosi's treating physician, had recommended the gallbladder surgery. He testified to Mr. Cangelosi's history of health problems which included mild adult onset diabetes, a silent heart attack, pacemaker surgery, hiatal hernia, congestive heart failure, chronic pulmonary disease, and orthopnea, or breathlessness while lying flat. On admission, Mr. Cangelosi showed signs of congestive heart failure including breathlessness, swelling, and an irregular heart rhythm. As a result, the attending physicians postponed the surgery. By December 2, his condition was maximally compensated, meaning it was as good as it would be given his medical problems. Although he remained a high risk, surgery was performed on December 3. Ms. Ashbaugh, a certified registered nurse anesthetist employed by Anesthesiology Group Assoc., anesthetized and intubated Mr. Cangelosi. She testified that she did not use a stylet to intubate Mr. Cangelosi and that, in fact, she never uses a stylet. Dr. Peuler, an anesthesiologist and a co-worker, observed the intubation at Ms. Ashbaugh's request because of the high risk factor of Mr. Cangelosi's health. Several witnesses testified that Mr. Cangelosi's intubation and surgery were uneventful. He remained in intensive care until December 5. Testimony and the hospital records showed that, during this time, the cuff pressure was routinely checked and the endotracheal tube routinely suctioned. Dr. Osterberger, who practices with Dr. Radzikowski, testified that he removed the endotracheal tube without difficulty on December 5. He also explained the steps that he followed for proper extubation. Mr. Cangelosi had been intubated for a total of 53 hours.

On December 7, Dr. Radzikowski examined Mr. Cangelosi and noted labored breathing and congestion. His condition worsened and he was moved back to intensive care. Dr. Charles Mitchell, an ear-nose-throat (ENT) physician, diagnosed laryngeal swelling secondary to the intubation. He prescribed medication, and the symptoms disappeared two days later. Dr. Mitchell released Mr. Cangelosi from his care, and he was transferred out of intensive care. On December 14, he was discharged from the hospital.

On December 29, Mr. Cangelosi saw Dr. Radzikowski for a post-operative visit. The doctor testified that he had not observed any breathing difficulties at that time. However, on January 4, Mr. Cangelosi saw Dr. Osterberger with complaints of hoarseness and shortness of breath. Dr. Osterberger testified that it sounded as though he was breathing through a straw. He made an appointment for Mr. Cangelosi with Dr. Mitchell who, after examination, admitted him to Our Lady of the Lake. The next day, Mr. Cangelosi was transferred to New Orleans to be examined by Dr. Daniel Mouney, an ENT specialist. The transfer summary indicated tracheal stenosis (narrowing of the trachea due to swelling or scar tissue) and stridor (a sound on respiration caused by constriction of the airway). Dr. Mouney performed a tracheotomy, which is an opening into the trachea through the neck, to maintain an airway for Mr. Cangelosi and to do a direct laryngoscopy. On direct observation, he saw scar tissue which had reduced the interior diameter of the trachea. In his opinion, the scar tissue covered collapsed and apparently fractured tracheal cartilaginous rings. Subsequently, Mr. Cangelosi underwent sixteen surgical procedures to reduce the continual growth of tissue and to maintain the airway. No procedures were performed after July 1986 because of his deteriorated general health. At the time of trial, Mr. Cangelosi resided in a nursing home following an unrelated stroke.

Dr. Mouney, testifying for the plaintiffs, said that his first impression was that Mr. Cangelosi had suffered an injury of the trachea. In his opinion, the event causing the damage to the trachea occurred sometime during the 53 hours of intubation. However, Dr. Mouney also testified that tracheal stenosis is seen in the absence of substandard care. He further stated that perichondritis, ⁵ the condition asserted by defendants as the cause of Mr. Cangelosi's tracheal stenosis, was a credible explanation and that an aging patient with heart and pulmonary disease is at a higher risk for developing tracheal stenosis. Moreover, he testified that a skilled and experienced person doing the intubation would know that the rings had fractured because of the force a fracture would require. Finally, if a fracture had occurred, blood would be seen on suctioning which is routinely done immediately after intubation.

Plaintiffs called Dr. Joseph Stirt, an anesthesiologist, as an expert witness. Dr. Stirt testified that, based on his review of the medical records, Mr. Cangelosi's injury would not have occurred in the absence of substandard care by some health care provider. He opined that some external force on the trachea caused the injury rather than an internal inflammation or infection. However, Dr. Stirt could not say with any certainty which event or defendant(s) might have caused the injury. Further, he testified that perichondritis is not within his area of expertise, and he deferred to Dr. Mouney's opinion whether it was a possible cause of Mr. Cangelosi's injury. Dr. Stirt also testified that he found no cases in the medical literature of fractured tracheal rings from intubation when a stylet was not used. Moreover, he estimated that his program does 10,000 to 15,000 intubations annually. He never saw or heard of a patient with a tracheal fracture caused by intubation during his four years with that institution.

Additionally, the defense presented Drs. Mouney and Stirt with the following hypothet. An experienced and capable anesthesist intubated Mr. Cangelosi without using a stylet. The intubation was not difficult and the tracheal rings were not manipulated externally. No tracheal bleeding occurred, and an experienced anesthesiologist observed the intubation and felt that it was a-traumatic. Assuming these facts, both doctors conceded the unlikelihood that the intubation process caused Mr. Cangelosi's injury. ⁶ Defendants established by direct testimony all the factors in the hypothet.

Dr. Booth, testifying for the defendants, stated that a fracture of two tracheal rings on intubation was almost "inconceivable." He testified that an air leak would have occurred immediately with accompanying swelling. This condition is known as subcutaneous emphysema and is part of the diagnosis of a fractured trachea. Its appearance is dramatic and is also heard and felt. In addition, free air from an air leak is detected on x-rays. Mr. Cangelosi's x-ray reports did not indicate the presence of free air. Also, Dr. Cowick testified that the effect of fractured tracheal rings is immediately visible and palpable. Based on his review of the surgical records, he felt that fractured tracheal rings absolutely did not occur during intubation.

Similarly, Dr. Osterberger testified that the signs of a tracheal fracture are dramatic and immediate. Based on his opinion and a review of the medical records, the process of...