Goudreault v. Kleeman

• Decision Date: 09 January 2009
• Docket Number: No. 2007–807.,2007–807.
• Court: New Hampshire Supreme Court
• Parties: Joseph P. GOUDREAULT, Jr. v. Thomas J. KLEEMAN.

158 N.H. 236

965 A.2d 1040

Joseph P. GOUDREAULT, Jr.

v.Thomas J. KLEEMAN.

No. 2007–807.

Supreme Court of New Hampshire.

Argued: Sept. 16, 2008.

Opinion Issued: Jan. 9, 2009.

Sullivan & Gregg, P.A., of Nashua (Kenneth M. Brown on the brief and orally), for the plaintiff.

Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (Peter W. Mosseau and Jonathan A. Lax on the brief, and Mr. Mosseau orally), for the defendant.

HICKS, J.

The defendant, Thomas J. Kleeman, M.D., appeals rulings of the Superior Court (Murphy, J.) made during a medical malpractice trial. The plaintiff, Joseph P. Goudreault, Jr., cross-appeals the apportionment of fault to non-litigants and the failure to impose joint and several liability upon Dr. Kleeman. We reverse and remand.

The record supports the following. Goudreault developed a back problem in 2001. He consulted Dr. Kleeman, an orthopedic surgeon specializing in spine surgery, who initially recommended conservative therapies. These were unsuccessful and diagnostic testing revealed degeneration in the discs and cartilage of Goudreault's lower back. Dr. Kleeman recommended a procedure called an anterior lumbar interbody fusion (ALIF). The ALIF procedure uses a bone graft to prevent inflammation by immobilizing the affected discs. The procedure is performed laparascopically to minimize its invasiveness, typically by a vascular surgeon teamed with a spine surgeon.

Goudreault's ALIF was performed at Catholic Medical Center (CMC) in April 2002 by Dr. Kleeman and vascular surgeons Dmitry Nepomnayshy and Patrick Mahon. The operation began at 7:00 a.m., initially with Drs. Kleeman and Nepomnayshy. Although there were no complications with the spinal fusion part of the surgery, complications arose with respect to accessing Goudreault's spine. Vascular injuries occurred causing substantial bleeding and requiring conversion from a laparascopic, minimally invasive approach to a more intrusive open approach. Dr. Kleeman testified that he could not say for sure whether he or Dr. Nepomnayshy caused the vascular injuries. After the vascular injuries arose, Dr. Kleeman left the surgery table and Dr. Mahon assisted Dr. Nepomnayshy. Dr. Kleeman returned to complete the ALIF after the vascular injuries were repaired and the bleeding was controlled. The surgery concluded around 4:00 p.m.

Following the surgery, Goudreault was taken to the post-anesthesia care unit (PACU) at CMC, where he was monitored and given intravenous fluid. The PACU nurse eventually transferred him to the intensive care unit (ICU) for monitoring and contacted Dr. Kleeman and his partner, Dr. Ahn, around 9:00 p.m. due to concern over some of his symptoms. Dr. Kleeman, who was familiar with compartment syndrome, observed Goudreault around 9:30 p.m. and saw no symptoms of the complication.

Dr. Kleeman began to suspect compartment syndrome in Goudreault's left calf the following morning when he observed him at 6:30 a.m. He testified that he then called Dr. Mahon. The substance and timing of the telephone call to Dr. Mahon were disputed, and the court instructed the jury to consider Dr. Kleeman's testimony only as evidence that a telephone call was made and not as evidence that Dr. Mahon agreed to take responsibility for treating any potential compartment syndrome . The ICU nurse observing Goudreault testified that she also contacted Dr. Mahon around 6:30 a.m. and updated him on Goudreault's condition.

Around 6:45 a.m., Dr. Kleeman requested a tonometer, which is a device that can detect compartment syndrome by measuring pressure in the leg. The ICU nurse testified that she left and asked the charge nurse for the instrument, returned to tell Dr. Kleeman that there was a tonometer in the emergency room, but found that he had left. Dr. Kleeman testified that he left before the nurse returned because she had informed him that she did not think CMC had a tonometer.

Several hours elapsed before surgery took place to treat Goudreault's compartment syndrome, during which time Dr. Kleeman performed scheduled elective surgery at another hospital. Dr. Kleeman testified that he placed several telephone calls to Dr. Mahon and the hospital attempting to discover Goudreault's condition. He returned to observe Goudreault around 11:30 a.m. and made additional notes on his chart. Dr. Mahon did not perform the surgery to relieve the pressure in Goudreault's leg until around 2:00 p.m., when the compartment syndrome had reached an advanced state. Goudreault suffered a permanent loss of the peroneal nerve, which runs through one of the compartments in the leg. Although he saw improvement in his back pain, Goudreault testified that he now experiences pain, numbness and difficulty walking.

Goudreault initiated the instant action for professional negligence against CMC and Drs. Nepomnayshy, Mahon and Kleeman. Dr. Kleeman was the sole trial defendant, however, because Goudreault settled with the other defendants. Goudreault introduced evidence of several breaches of Dr. Kleeman's duty of care, including responsibility for causing at least one of the four vascular injuries and for failing to timely diagnose and treat compartment syndrome.

Goudreault maintained that Dr. Kleeman advised him that he would supervise the surgical team performing the ALIF. Dr. Kleeman disputed this, and denied any general responsibility for Goudreault's condition as the admitting physician. Dr. Kleeman further testified that he was not qualified to treat the compartment syndrome and that vascular issues were the vascular surgeon's responsibility. He acknowledged that Dr. Mahon did not act quickly upon being informed of the suspected compartment syndrome, but denied any responsibility for the delay. Additionally, because he was not present for Goudreault's entire surgery, Dr. Kleeman said his "index of suspicion" regarding compartment syndrome was not high and that he relied upon Drs. Nepomnayshy and Mahon to also monitor Goudreault's condition.

Both sides presented expert testimony. Goudreault called Dr. Michael Golding, a surgeon with vascular training and board-certification in thoracic, cardiovascular and general surgery. Dr. Golding testified that surgical teams commonly have leaders, and that the attending surgeon, in this case Dr. Kleeman, typically heads the team. He further testified that, although injuries to blood vessels sometimes happened during spinal surgery, they are rare. He testified that the quantity and severity of the injuries to Goudreault's blood vessels fell far below the standard of reasonable surgical care. Although Dr. Golding initially said that it was difficult to tell whether Dr. Nepomnayshy or Dr. Kleeman caused the injuries, he later testified that it was more likely than not that Dr. Kleeman caused at least one of Goudreault's vascular injuries.

As for the compartment syndrome, Dr. Golding opined that as Goudreault's admitting physician, Dr. Kleeman was responsible for postsurgical monitoring. In Dr. Golding's opinion, the circumstances of Goudreault's surgery created an environment that predisposed him to compartment syndrome and any surgeon would know that vascular injury was one of its common causes. He also testified that Dr. Kleeman breached the standard of reasonable care by failing to timely confirm or deny the presence of compartment syndrome, notwithstanding the presence of warning signs. He testified that early diagnosis and treatment of compartment syndrome usually averts permanent injury and that Dr. Kleeman's failure to timely diagnose and treat the compartment syndrome caused permanent injuries.

Dr. Kleeman called two expert witnesses: Dr. Bruce Morgan, a board-certified general and vascular surgeon, and Dr. John Regan, a board-certified orthopedic surgeon and internist who had performed over two thousand ALIFs. Both disputed the assertions that Dr. Kleeman breached duties of care and caused Goudreault's injuries.

At the close of evidence, both parties moved for a directed verdict. Dr. Kleeman argued that no jury could reasonably find for Goudreault on the count alleging negligent vascular injury because Dr. Golding's expert opinion on causation was speculative. As to the count alleging negligent postoperative care, Dr. Kleeman argued that Dr. Golding lacked the requisite experience with ALIFs to give expert testimony on the breach of duty. Goudreault moved for a directed verdict prohibiting the apportionment of fault to Drs. Nepomnayshy and Mahon for lack of adequate evidence. The trial court denied each motion.

After the jury was instructed and heard closing arguments, the court explained the special verdict form. The first question asked whether the defendant was at fault for the plaintiff's injuries. If so, the jury was instructed to address question two, which asked the jury to determine the total amount of damages.

Upon learning that the jury was deadlocked, the court gave an additional charge that apprised the jury, for the first time, of its ability to apportion fault to non-litigants. The court cautioned the jury not to "reach that issue unless you find D[r.] Kleeman is responsible to any degree." The court then instructed the jury to deliberate further.

Thereafter, the jury foreperson submitted a written question to the court asking:

Does a Decision which Favors The Defendant Preclude other Remedies? ie is it Necessary before [pursuing] other People i.e. Is it necessary to prove Dr. K's negligence in order to seek remedy from other parties? (For example, Dr. Mahon?)

Over Dr. Kleeman's objection, the court responded in writing:

[I]n order for any apportionment of fault among parties other than the defendant Dr. Kleeman to occur, Dr. Kleeman would have to be found legally at fault for plaintiff's injuries to some degree.

The jury then returned an affirmative response to the first question regarding liability but failed to answer the second question concerning damages. The court gave the jury another special verdict form with two additional...