Glassman v. Costello
| Decision Date | 09 July 1999 |
| Docket Number | No. 78,905.,78,905. |
| Citation | 986 P.2d 1050,267 Kan. 509 |
| Parties | JEROME ALAN GLASSMAN, as Administrator of the Estate of Cathleen Lyn Glassman, Deceased, and JEROME ALAN GLASSMAN, Individually, for and on behalf of JEROME ALAN GLASSMAN, Surviving Spouse of Cathleen Lyn Glassman, and SHAYLYN JANAE GLASSMAN, a Minor, and Surviving Child of Cathleen Lyn Glassman, Appellants/Cross-Appellees, v. J. WILLIAM COSTELLO, M.D., Appellee/Cross-Appellant. |
| Court | Kansas Supreme Court |
Fred E. Stoops, Sr., of Stoops & Clancy, P.C., of Tulsa, Oklahoma, argued the cause, and Thomas C. Boone, of Hays, was with him on the briefs for appellants/ cross-appellees.
Michael R. O'Neal, of Gilliland & Hayes, P.A., of Hutchinson, argued the cause, and Tara L. Bragg, of the same firm, was with him on the briefs for appellee/ cross-appellant. The opinion of the court was delivered by
This appeal arises from an anesthesia-related death of a mother during the course of a cesarean section delivery of a healthy child. The mother's survivors sued the anesthetist and the obstetrician. After a settlement was reached with the anesthetist, the claim against the obstetrician was tried to a jury. The jury found the anesthetist 99% at fault and the obstetrician 1% at fault, and awarded damages of $2,007,385.47.
The mother's survivors appeal, contending the trial court erred in refusing to allow testimony as to the standard of medical care by two pathologists. The obstetrician cross-appeals, raising issues of the instructions given as to the duties of surgeons, the questioning of expert witnesses, and the damage award.
Facts:
The sad facts of this case reveal the death of Cathleen (Cathy) Glassman on September 11, 1994, during the course of a cesarean section delivery of a healthy baby girl (Shaylyn Glassman).
Cathy had experienced an uneventful pregnancy when labor commenced on September 10, 1994, and she was taken to Hays Medical Center about 8 p.m. Her obstetrician, Dr. Doss, and his backup, Dr. Bauer, were both unavailable, and she was assigned to the obstetrician on call, Dr. J. William Costello.
Dr. Costello checked on Cathy until around 2 a.m., when he determined the labor had not progressed satisfactorily and it was necessary to prepare Cathy for surgery so he could perform a cesarean delivery.
Dr. Costello ordered anesthesia services and Certified Registered Nurse Anesthetist (CRNA) Greg Mahoney was assigned to administer the anesthesia to Cathy. Mahoney discussed the options available with Cathy and her husband, Jerome Glassman. Dr. Costello was not a part of this discussion. A spinal rather than a general anesthetic was chosen and administered by Mahoney.
As the surgery began, the testimony of what happened became inconsistent. Dr. Costello claimed he only nicked the skin with the first incision. Jerome testified the first incision was 4 to 6 inches in length and Cathy said: "I can feel that, you'll have to stop, its not deadened." Jerome stated a mask was placed over Cathy's face, CRNA Mahoney said "go ahead," and Dr. Costello deepened the original incision. At this point, Jerome was excluded from the operating room.
There was also testimony that Dr. Costello immediately discontinued the surgery. Because the spinal was "spotty," Mahoney determined that additional anesthesia was necessary. A general anesthesia was chosen. Mahoney placed an oxygen mask over Cathy's mouth for 3 to 4 minutes in order to increase the oxygen (oxygenation) to her lungs. Oxygenation raises the content of oxygen in the blood and increases the patient's safety during surgery. Mahoney then administered Curare (a muscle relaxant), Sodium Pentothal (sleeping agent and respiration depressant which makes it impossible for the patient to breath on her own), and Anectine (paralyzes the muscles completely).
According to Dr. Costello, he continued with the surgery and performed a second incision only after Mahoney had administered the general anesthesia and after he asked of Mahoney, "May I start?" and Mahoney told him to proceed. Mahoney said Dr. Costello asked him if the oxygen tube was in place. Mahoney responded, Dr. Costello then continued the surgery.
With the help of nurse Barb King, Mahoney attempted to intubate (place a tube down the trachea) in order to supply Cathy with oxygen during the procedure. A pulse oximeter measuring the oxygen content was attached. The oximeter tones continuously. The tone changes as the level of oxygen in the patient increases or decreases. Mahoney placed the tube. Dr. Costello made a third incision into the abdomen to remove the infant and encountered dark, red blood (an indicator that the patient is not receiving an adequate supply of oxygen). Dr. Costello testified he was unaware the patient had not been properly intubated until he encountered dark, red blood in the patient's abdomen. Furthermore, at that time the tone from the oximeter indicated a sharp decrease in Cathy's oxygen level.
According to nurse King, Mahoney pulled the tube, masked the patient in order to supply her with oxygen, and placed a second tube. Nurse King was reading the oximeter and testified that Cathy's oxygen level rose and fell several more times. Mahoney testified he tried to maintain Cathy's airway with a bag (squeezing the bag forcing air into her lungs) and an oxygen mask until the baby was delivered at 5:37 a.m.
After the baby was delivered, there were continued efforts to oxygenate Cathy. Mahoney administered additional Anectine and attempted another intubation. Mahoney had difficulty because he encountered airway resistance. Additional assistance from other hospital staff was provided in an attempt to resuscitate Cathy. Their efforts failed and Cathy died due to hypoxia brought about by inadequate anesthetic induction and a failure to intubate prior to initiation of the cesarean section.
This medical malpractice action for the wrongful death of Cathy was brought by Jerome Glassman and on behalf of Shaylyn against Mahoney, Dr. Costello, and others. After settlement or dismissal of all parties except Dr. Costello, the case preceded to a jury trial against him only. The Glassmans contended Dr. Costello was guilty of negligence in (1) failing to direct and monitor nurse Mahoney in the administration of anesthesia, (2) beginning surgery after the failure of a spinal anesthesia administered under his direction, (3) ignoring the oral representation of Mahoney that Cathy was not intubated, and (4) continuing with surgery when he knew, or should have known, that Cathy was inappropriately intubated.
Prior to trial, Dr. Costello moved in limine to prohibit Drs. Noordhoek and Sperry, both pathologists, from testifying as to the standard of care applicable to him, an obstetrician. This motion argued that K.S.A. 60-3412, as interpreted by our court in Tompkins v. Bise, 259 Kan. 39, 910 P.2d 185 (1996), disqualified the pathologists because they did not practice in a field similar or related to that of Dr. Costello. Dr. Costello contended our holding in Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988), that a physician is allowed to testify about issues outside his or her area of specialization with such testimony subject to cross-examination and arguments as to weight and credibility was limited by the language of Tompkins. The Glassmans argued that both pathologists fully complied with the requirements of K.S.A. 60-3412 in that 50% of their professional time within the 2-year period preceding the incident was devoted to actual clinical practice of the same medical profession in which Dr. Costello is licensed. Both were licensed to practice medicine in Kansas by the Board of Healing Arts, as was Dr. Costello. Their involvement in the case was in their official capacities as Deputy District Coroners under K.S.A. 22a-226(a). The Glassmans stated both doctors had sufficient experience and expertise to render an opinion as to the standard of care of Dr. Costello and the jury was entitled to hear those opinions. They further contended Tompkins did not limit the holding of Wisker, but rather expanded it to allow a dentist who performed the same procedures and had comparable training as the medical doctor who performed oral and maxillofacial surgery to testify as an expert witness notwithstanding the difference in their profession and the fact they were licensed by different boards.
The trial court granted the motion to prohibit Drs. Sperry and Noordhoek from testifying as to the standard of care applicable to Dr. Costello. The written decision referred to K.S.A. 60-3412, and recognized that in Wisker, it was held to be error to prohibit a medical doctor surgeon from testifying as to the standard of care applicable to a medical doctor general practitioner and vice-versa. The trial court did not read Tompkins to expand the Wisker test as the Glassmans argued but rather focused on whether the witness was engaged in a "similar or related area of practice" as that of the defendant.
The trial court admitted the legislative history of K.S.A. 60-3412 referred to in Tompkins revealed that a provision requiring the witness to practice the same specialty as the defendant had been rejected in the final version of the statute. However, the trial court looked to specific Tompkins wording and reasoned:
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