Haas v. United States, Civ. A. No. 75-4110-K.

• Decision Date: 05 June 1980
• Docket Number: Civ. A. No. 75-4110-K.
• Citation: 492 F. Supp. 755
• Parties: Laura L. HAAS et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

492 F. Supp. 755

Laura L. HAAS et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 75-4110-K.

United States District Court, D. Massachusetts.

June 5, 1980.

Enid M. Starr, Barron & Stadfeld, Boston, Mass., Richard C. Driscoll, Jr., Driscoll & Mattingly, Brockton, Mass., for plaintiffs.

James J. O'Leary, Newburyport, Mass., for defendant.

MEMORANDUM

KEETON, District Judge.

I.

This case is before the court on defendant's Motion for Summary Judgment.

Plaintiff Laura L. Haas, individually and as guardian of her husband, Julius Haas, brought this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and §§ 2671 et seq. In Count I plaintiff seeks to recover for grievous and totally incapacitating personal injuries sustained by Julius Haas as a result of an anoxic episode during which his brain was deprived of oxygen while he was under knee surgery at the West Roxbury Veterans Hospital on October 12, 1971. In Count II plaintiff seeks to recover individually for her damage resulting from the injuries to her husband. In both counts, the alleged basis of liability is negligence of employees of defendant, within the scope of their employment in the performance of medical and nursing care.

After extensive, contested discovery proceedings, this case was called for pre-trial conference on October 31, 1979, at which time the parties advised the court that the principal contested issue on liability arises from plaintiff's contention that, by application of the principle of res ipsa loquitur, plaintiff will have proved that the injuries resulted from negligence of defendant's servants in the administration of anesthesia upon proving that "prior to the administration of an anesthesia for the operation on his knee on or about October 12, 1971, the patient Julius Haas was in excellent physical condition and health except for the injury" and after the operation he was found to have sustained severe and permanent injuries because his brain was deprived of oxygen while he was under the care of the defendants for the operation on his knee. Plaintiff's Pre-Trial Memorandum, paragraphs 3, 4. Plaintiff contends that the "doctrine of res ipsa loquitur applies to a case where a person is injured because of lack of oxygen getting to the brain while unconscious by reason of anesthesia and is in the sole control of the Defendant or its agents, servants or employees because the general experience and observation of mankind teaches that the result would not be expected without negligence and the injury must have been caused by an agency or instrumentality in the control of the Defendant and the injury was not due to any voluntary action or contribution on the part of the Plaintiff." Id., paragraph 7. Defendant contends that no evidence of negligence is proffered by plaintiff, and with respect to plaintiff's argument based on res ipsa loquitur, defendant asserts that the doctrine has never been applied to a medical malpractice action in Massachusetts, has at least implicitly been rejected, and that application of the doctrine here "would be an unwarranted extension of Massachusetts law, contrary to the intent of the Federal Tort Claims Act that federal courts will apply existing state law rather than create new law." Defendant contends also that even if Massachusetts law did accept the doctrine, it would not apply to the present case. Defendant's Pre-Trial Memorandum, paragraph 4.

Defendant filed a Motion for Summary Judgment on December 19, 1979, and at a further Pre-Trial Conference on December 21, 1979, the parties were allowed time for written submissions before oral argument, which was heard on February 15, 1980. In light of issues addressed at the oral argument, plaintiff, for reasons referred to infra, was allowed an additional 10 days for further submissions. No further submissions having been filed within the further allowed time, the court now addresses the defendant's motion for summary judgment.

II.

In support of its motion for summary judgment, defendant submitted an affidavit of Dr. Edward R. Roaf, to which was attached, as Exhibit A, a copy of "all of the medical and hospital records pertaining to the operation on the knee of Julius Haas on October 12, 1971, at the West Roxbury Veterans Administration Hospital." Affidavit of Edward R. Roaf, January 21, 1980, paragraph 2. Based on his review of these records, and for reasons detailed in the affidavit, id., paragraph 5, Dr. Roaf stated:

4. Based on my complete review of these records, it is my firm opinion that Mr. Haas' failure to regain normal cerebral function was not caused by any negligence on the part of the anesthesiologist, anesthetist, or any of the other VA medical personnel who attended to him before, during, or after the surgery. Rather, it is my opinion that the care and treatment provided to Mr. Haas at the pre-operative, operative, and post-operative stages was fully in accord with the accepted standards of the medical profession, and that the anesthesiologist met or exceeded the standard of care and skill of the average member of the profession practicing the specialty of anesthesia, taking into account the advances of the profession.

The affidavit adds:

6. After my complete review of the hospital and medical records in this case, I am unable to state what caused Mr. Haas to suffer the severe loss of cerebral function which presently impairs him. The records are complete, well-kept, and indicative of proper medical standards being followed before, during, and after the surgery. Most importantly, all vital signs are normal during the entire anesthetic and surgical period, which flatly contradicts the possibility of an anoxic episode having occurred to deprive Mr. Haas of sufficient oxygen during this period. A deprivation of the necessary amount of oxygen would have to be reflected in blood pressure, pulse, respiration, and/or EKG, all of which were normal during this entire period. Additionally, all signs point to Mr. Haas responding normally and being on the road to normal recovery from anesthesia until about 12 noon, 1½ hours after completion of surgery.

In short, the cause of Mr. Haas' present condition is not discernible from the medical and hospital records, but it is clear that a deprivation of oxygen or anoxia was not the cause. The hospital and medical records reveal no negligent act or omission by any of the VA medical personnel which caused Mr. Haas' injury.

Unfortunately, general anesthesia, by its very nature as a trespass on a person's normal physiology, carries with it an inherent risk of loss of cerebral function and even death. Such tragic results can and do occur in a certain number of cases even where general anesthesia is administered with all due care, in full accord with accepted medical standards, and without any negligence whatsoever. General anesthesia has a morbidity and mortality rate approximately four or five times that for spinal anesthesia.

In a supplemental affidavit of February 15, 1980, Dr. Roaf adds:

1. I have read those portions of plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment in which plaintiff's attorney alleges that plaintiff suffered brain damage as a result of an anoxic episode whereby his brain was deprived of oxygen while he was under general anesthesia (see plaintiff's Memorandum, pp. 4, 7, 13, 14, 16). As indicated in my first Affidavit (p. 4, ¶ 6) this possibility is flatly contradicted by the normalcy of all vital signs revealed by the close monitoring which took place during the entire anesthetic and surgical period. While it is true that ordinarily in circumstances like this an anoxic episode would be suspected initially, that tentative suspicion must be categorically rejected in light of a review of the carefully monitored and recorded vital signs during the entire relevant period. Based on a retrospective review of the entire set of medical records, including those of the entire postoperative period, it is my firm conclusion that there is simply no medical evidence either in the medical records or presented in plaintiff's Memorandum supporting the conclusion that Mr. Haas suffered deprivation of oxygen to the brain, or that such a deprivation caused his injuries. There is no medical explanation which would square the alleged anoxic episode with his normal vital signs during the entire period in which the oxygen deprivation allegedly took place.

2. I have also read those portions of plaintiff's Memorandum in which plaintiff's attorney alleges that "men in their common knowledge and experience know that the brain of an unconscious patient would not be deprived of oxygen unless someone caring for him was negligent" (p. 16; see also pp. 13-14). This statement is medically false and inaccurate. Medical science makes it clear that an anoxic episode whereby the brain is deprived of oxygen during general anesthesia can occur in a large number of circumstances in which there is absolutely no negligence by the medical personnel treating that individual. For example, the patient can suffer a sudden heart attack, pulmonary embolism blocking the flow of blood, shock in which peripheral blood circulation fails, an acute blood loss from surgery leading to shock, or a lack of blood glucose which causes brain cells to die. All of these examples can result in an anoxic episode despite the patient's having been treated properly and without any negligence whatsoever. The only way that such a situation can be detected is through monitoring the vital signs and noting that some or all of them are abnormal. But even with proper and frequent monitoring, such abnormalities do not always show up in time to prevent brain damage. In short, a patient under general anesthesia can have an anoxic episode whereby the brain is deprived of oxygen, and suffer brain damage as a result, even if he or she is treated properly in conformity with accepted medical practice, and

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