Douglas v. Lombardino

• Decision Date: 26 January 1985
• Docket Number: No. 56030,56030
• Citation: 693 P.2d 1138,236 Kan. 471
• Parties: George DOUGLAS, Jr., Individually, and Patrick C. Douglas, by and through George Douglas, Jr., his Father, Next Friend and Guardian, Individually, and Heirs-at-Law of Patricia Douglas, Appellants, v. Carl J. LOMBARDINO and Humana of Kansas, Inc., a Corporation, d/b/a Suburban Medical Center, Appellees.
• Court: Kansas Supreme Court

Page 1138

693 P.2d 1138

236 Kan. 471

George DOUGLAS, Jr., Individually, and Patrick C. Douglas by and through George Douglas, Jr., his Father Next Friend and Guardian, Individually and Heirs-at-Law of Patricia Douglas, Appellants, v. Carl J. LOMBARDINO and Humana of Kansas, Inc., a Corporation, d/b/a Suburban Medical Center, Appellees.

No. 56030.

Supreme Court of Kansas.

Jan. 26, 1985.

Syllabus by the Court

1. When there is no dispute in the evidence that a physician is a specialist, it is not error for the court to instruct the jury on both the standard of care of a general practitioner (PIK Civ.2d 15.01) and of a specialist (PIK Civ.2d 15.12 [1981 Supp.] as these instructions are not inconsistent.

2. When a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.

3. Pursuant to K.S.A. 60-251(b), a party cannot assign as error the giving of an instruction unless the party objects to the same before the jury retires, unless the instruction is clearly erroneous.

4. If, when a pathologist's report is taken as a whole, it appears to reflect a professional opinion as to the cause of death, then it is admissible. Such a report is not inadmissible as being mere speculation simply because of the use of the word "possibility" in the conclusion, as more particularly stated in the opinion.

5. The qualifications of expert witnesses and the admissibility of expert testimony are matters which lie within the sound discretion of the trial court. Under K.S.A. 60-456(b) there is no requirement that before an expert witness may give an opinion he must demonstrate that most, or all, or many other experts would agree with his opinion. The fact that the expert's theory or opinion is a minority view goes only to the weight the jury may give it, and not its admissibility.

6. When the verdict is attacked as contrary to the evidence, the reviewing court must determine only if the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party, will support the verdict.

7. The granting or denial of a new trial on grounds of surprise or newly discovered evidence is discretionary on the part of the trial court, and will not be reversed unless a clear abuse of discretion is shown. The burden is on the party seeking the new trial to show the new evidence could not, with reasonable diligence, have been produced at trial. Where the party does not meet this burden, a trial court does not abuse its discretion in refusing to consider the contents of a supporting affidavit which contains the new evidence. Schraft v. Leis, 236 Kan. 28, 686 P.2d 865 (1984).

8. In accordance with K.S.A. 60-259(g), evidence in support of a motion for new trial on the basis of newly discovered evidence must be produced by the affidavit, deposition, or oral testimony of the witnesses themselves and not of the attorney for the losing party.

Edward M. Boyle of Payne & Jones, Chartered, Olathe, argued the cause, and Bruce Keplinger, Olathe, was with him on briefs for appellants.

Jerome V. Bales of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland

Park, argued the cause, and Frank Saunders, Jr., Overland Park, was with him on brief for appellee, Carl J. Lombardino.

Gordon N. Myerson of Morris, Larson, King, Stamper & Bold, Kansas City, Mo., argued the cause, and James L. Eisenbrandt of James L. Eisenbrandt, Chartered, Overland Park, was with him on the brief for appellee, Humana of Kansas, Inc., a corporation, d/b/a Suburban Medical Center.

SCHROEDER, Chief Justice:

This is a medical malpractice action brought by George Douglas, Jr., the surviving spouse of Patricia Douglas, on his own behalf and on behalf of their infant son, Patrick Douglas, arising from Patricia Douglas' death on December 28, 1981 at Suburban Medical Center, following administration of a local anesthetic for a Caesarean section. The suit was brought against Humana of Kansas, Inc., the operator of Suburban Medical Center, and Dr. Carl J. Lombardino, a staff anesthesiologist at Suburban who administered the anesthetic to Patricia Douglas. The action sought damages for George Douglas' emotional distress caused by the events he witnessed, and damages sustained by the next of kin of Patricia Douglas as a result of her death. The jury found that none of the defendants were at fault. The plaintiffs moved for a new trial which was denied by the trial judge. Numerous trial errors are asserted by the plaintiffs on appeal.

On December 27, 1981, Patricia Douglas, age 31, was admitted to Suburban Medical Center for childbirth. Her obstetrician was Dr. Hal Younglove. At 12:00 p.m., on December 28, Mrs. Douglas was taken to the operating room where a Caesarean section was to be performed. Her husband was admitted with her to observe the delivery. Dr. Carl Lombardino, a staff anesthesiologist, was to anesthetize Mrs. Douglas in preparation for the delivery.

The procedure intended was a lumbar epidural in which a local anesthetic is injected in the lower back area outside the membrane that covers the spinal cord to desensitize the nerves there. In administering a lumbar epidural, the anesthesiologist must take care not to penetrate the spinal cord because this would create too strong a block, resulting in paralysis. The anesthesiologist must also take care not to penetrate any blood vessels which are engorged during pregnancy. Penetration of the blood vessels is referred to as an intravascular injection. If an intravascular injection occurs, the body's circulatory system carries the anesthetic to the brain within 30 seconds. Convulsions and respiratory arrest may occur. If the patient convulses and stops breathing, there is a resuscitation procedure which, if followed, will normally bring the patient back.

The anesthetic involved in this case was bupivacaine, which is marketed under the name Marcaine by Breon Laboratories. At 12:20 p.m., Dr. Lombardino first injected a 3 cc. test dose of Marcaine into Mrs. Douglas and then aspirated (pulled back on the plunger of the syringe) to see if any blood would come back into the syringe. There was no aspiration of blood to indicate to Dr. Lombardino that he was in a vein. Dr. Lombardino then injected a therapeutic dose of 21 cc.'s of Marcaine at a rate of 1 cc. per second over a period of twenty seconds. At 12:25, Mrs. Douglas began having violent convulsions. Mr. Douglas was immediately taken from the room. As soon as she began convulsing, Mrs. Douglas was turned from her side onto her back. An oxygen mask was placed on Mrs. Douglas' face simultaneously as she was placed on her back by Judy Peck, a certified registered nurse anesthetist. It took approximately 30 seconds to get Mrs. Douglas on her back.

Nurse Elias testified that she entered the delivery room at 12:25 p.m. and saw Mrs. Douglas on her side having a seizure. She then assisted in turning Mrs. Douglas onto her back. She observed Nurse Peck ventilating Mrs. Douglas as soon as she had been turned.

By the time Mrs. Douglas was on her back, Dr. LaSalle, a staff anesthesiologist, had been called "stat" (meaning "come now-- immediately"). Dr. Younglove, the obstetrician, was also summoned. There is some dispute as to whether a formal Code Blue was ever called, but the testimony established that all of the necessary doctors were present when needed. Nurse Elias testified that she did not call a Code Blue because all of the right doctors were present. Mr. Douglas testified that he heard a Code Blue call on the intercom.

Mrs. Douglas was given 200 mg. of Pentathol after she was on her back. Pentathol was given for the purpose of stopping the seizure. She was also given 40 mg. of Succinylcholine to relax her jaw so that she could be intubated. Dr. Lombardino then unsuccessfully attempted intubation. Dr. LaSalle arrived within 15-30 seconds after this attempt and successfully intubated Mrs. Douglas within ten seconds. At that time, Nurse Peck was also giving closed chest massage which she continued to administer. The intubation was completed sometime between 12:27 and 12:30 p.m. Nurse Elias testified that she listened to the fetal heart tones at 12:28 and remembers that Mrs. Douglas had been intubated at that time. CPR was started at 12:27 p.m.

Dr. Younglove, the obstetrician, arrived in the operating room at 12:27 p.m. He testified that Mrs. Douglas had been intubated by 12:29. Intubation had to have been completed before he could begin delivery. The delivery took between 30 seconds and one minute, and at 12:30 p.m. a viable male infant was delivered.

After Dr. LaSalle was in the room, Mrs. Douglas was hooked up to a monitor and it was determined that her heart was in ventricular fibrillation, meaning her heart was moving irregularly and abnormally without generating any blood pressure. Defibrillation was first attempted after the baby was born but before the incision was closed, sometime between 12:33 and 12:35 p.m.

At 12:35 p.m. Mrs. Douglas was given an ampule of sodium bicarbonate to balance the acid that is produced in the blood as a result of the convulsions. This dose was repeated at 12:40 and at 12:45 and again at 12:55. The blood gas was first read at 1:00 and indicated that, although Mrs. Douglas was well oxygenated, her acidity was too high. This was brought to within the normal range by 1:30.

The resuscitation measures were continued for two and one-half hours after Mrs. Douglas first convulsed. She was finally pronounced dead at 3:03 p.m.

At trial, the plaintiffs alleged that Mrs. Douglas died as a result of the inappropriate administration of the regional anesthetic and the subsequent incorrect and substandard behavior of Dr. Lombardino in attempting to resuscitate her and by the inappropriate preparations by the hospital for drug availability in case of emergency. The defendants' position was that Dr. Lombardino was not negligent, that...