Harris v. Miller

• Decision Date: 02 July 1991
• Docket Number: No. 902SC336,902SC336
• Citation: 407 S.E.2d 556,103 N.C.App. 312
• Parties: Haywood HARRIS, in his capacity as Administrator of the Estate of Etta Harris v. George J. MILLER, M.D.
• Court: North Carolina Court of Appeals

Page 556

407 S.E.2d 556

103 N.C.App. 312

Haywood HARRIS, in his capacity as Administrator of the Estate of Etta Harris v. George J. MILLER, M.D.

No. 902SC336.

Court of Appeals of North Carolina.

July 2, 1991.

Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A. by Adam Stein, Chapel Hill, and James E. Ferguson, II, Charlotte, for plaintiff-appellant.

LeBoeuf, Lamb, Leiby & MacRae by George R. Ragsdale, Sherry C. McConnell, and Kurt E. Lindquist, II, Raleigh, for defendant-appellee.

GREENE, Judge.

Etta Harris and her husband, Haywood Harris, filed this medical malpractice action on 1 April 1983 against George J. Miller, M.D. (an orthopedic surgeon), William Hawkes (a certified registered nurse anesthetist), and Beaufort County Hospital. On 21 October 1986, Mr. and Mrs. Harris settled with nurse Hawkes and Beaufort County Hospital and released them from liability.

On 8 November 1987, Mrs. Harris died from injuries sustained during her operation. Mr. Harris, as administrator of the estate of Etta Harris, was substituted as plaintiff and the complaint was amended to allege Mrs. Harris' wrongful death. Dr. Miller was the only defendant named in the amended complaint. The complaint alleges that Dr. Miller was negligent in treating Mrs. Harris, negligent in the supervision of nurse Hawkes, and vicariously liable for the negligence of nurse Hawkes in that Hawkes was Dr. Miller's agent.

Trial began on 28 November 1988. At the close of plaintiff's evidence, the trial court granted defendant's motion for a directed verdict on the issue of vicarious liability on the ground there was insufficient evidence of an agency relationship between Dr. Miller and nurse Hawkes and on the ground that the release of Hawkes relieved Dr. Miller of any vicarious liability. The jury returned a verdict in favor of defendant on the issue of defendant's own negligence. Plaintiff appeals.

Plaintiff's evidence tends to show that in 1981, Mrs. Harris experienced severe back pain and was referred by her physician to Dr. Miller. Dr. Miller diagnosed a ruptured disc requiring a laminectomy. On 26 May 1981, Mrs. Harris was admitted to Beaufort County Hospital and on 31 May 1981 she signed a consent form authorizing "Dr. Miller and/or such assistants as may be selected by him" to perform the operation.

Mrs. Harris underwent surgery on 1 June 1981. Dr. Miller performed the surgery and nurse anesthetist Hawkes administered the anesthesia. At the time, Beaufort County Hospital did not employ a staff anesthesiologist. The hospital's Anesthesia Manual provided that "[a]nesthesia care shall be provided by nurse anesthetists working under the responsibility and supervision of the Surgeon doing the case." Nurse Hawkes was employed by the hospital as a certified registered nurse anesthetist. Dr. Miller, on the other hand, was in private practice and was not on the hospital staff. Nor was he in any way under contract with the hospital. He had applied for and obtained privileges to use the hospital facilities in the treatment of his patients.

Plaintiff introduced the testimony of an expert in anesthesiology who had reviewed Mrs. Harris' medical records and the depositions of Dr. Miller and nurse Hawkes. Based upon the anesthesia record maintained by nurse Hawkes throughout Mrs. Harris' operation, upon Hawkes' deposition, and upon his own expertise, the expert testified that after Mrs. Harris was put to sleep there was a small drop in her blood pressure. This drop is a normal reaction to the anesthetic agents used on patients. Generally, however, the blood pressure goes back up once the operation begins as a result of surgical stimulation. Mrs. Harris' blood pressure never went up.

At 8:05 a.m., approximately the time the surgery began, the blood pressure dropped lower and the heart rate rose to an abnormally high rate. Nurse Hawkes thought at the time these abnormalities resulted because Mrs. Harris was not deeply asleep. He increased the anesthetic. At 9:15 a.m., the blood pressure dropped lower. The anesthesia record indicates that by 9:30 a.m. the blood pressure had dropped so low it was no longer audible and the heart rate had risen higher. The expert testified that, based on the anesthesia record, Hawkes was continuing to give Mrs. Harris 33% oxygen, 66% nitrous oxide, and 1/2% ethrane. He further testified that in such a situation it was common knowledge that the proper measure is to cut off everything going to the patient except oxygen which is turned up to 100%, and that in his opinion Mrs. Harris suffered from brain damage due to hypoxia, or insufficient oxygenation, during the operation.

Plaintiff introduced the testimony of another expert in anesthesiology who had also reviewed the medical records and depositions. He testified that when nurse Hawkes became concerned that Mrs. Harris was not getting enough anesthesia he gave her a dose of innovar, a combination of a narcotic and tranquilizer which tends to decrease blood pressure. He testified that the low blood pressure and high heart rate which prompted Hawkes to give more anesthesia was not a result of insufficient anesthesia as Hawkes thought, but was a result of Hawkes' improper placement of the endotracheal tube. A post-operative x-ray revealed that the tube was ventilating only one lung. The expert stated his opinion that Mrs. Harris suffered brain damage between 9:15 and 10:30 a.m. due to prolonged low blood pressure and an improperly placed endotracheal tube.

Plaintiff read into evidence Dr. Miller's deposition which established that preparation for Mrs. Harris' surgery began at 7:30 a.m. on 1 June 1981. Dr. Miller began the operation at 8:05 a.m. At approximately 8:40 a.m., Dr. Miller noticed an unusual amount of bleeding which he began to control by direct pressure. Between 8:50 and 9:00 a.m., Dr. Miller noted the bleeding had not stopped as he would normally expect. At 9:00 a.m., when Mrs. Harris had lost three to four hundred cc's of blood, approximately twice the normal amount, Dr. Miller told nurse Hawkes to begin giving blood to Mrs. Harris. Dr. Miller stated he did not recall any response from Hawkes, though other evidence indicates that Hawkes responded that blood volume was "okay." After requesting blood, Dr. Miller returned to his attempts to control the bleeding and was unaware that blood was not started immediately. As a precautionary measure, two units of blood had been cross-matched to Mrs. Harris' blood before the operation began, and were in refrigeration in the hospital's blood bank on the floor above the operating room. Dr. Miller's post-operative review of the blood bank's records indicated the blood was not signed out of the blood bank until 9:30 a.m. Dr. Miller estimated that at the very earliest Mrs. Harris began receiving blood at 9:40 a.m., though nurse Hawkes did not designate in the records he kept during the operation the specific time blood was first given to Mrs. Harris. The blood bank records indicate the second unit was signed out at 9:43 a.m., and two additional units were cross-matched and signed out at 10:43 a.m. These two additional units of blood were cross-matched pursuant to a request made by Dr. Miller shortly after 10:00 a.m. By that time Dr. Miller had called in another surgeon, Dr. Waters, to assist him in controlling the bleeding problem. It was then that "we realized that we had a major bleeding problem."

Dr. Miller stated that he had no recollection of nurse Hawkes informing him at any time prior to 11:00 a.m. that Mrs. Harris' blood pressure was dropping or that her heart rate was going up. Then, at approximately 11:10 a.m. both Dr. Miller and Dr. Waters were still operating on Mrs. Harris' back when nurse Hawkes informed them that Mrs. Harris' blood pressure and pulse had rapidly dropped to extremely low levels. The two surgeons then abandoned the efforts to control the bleeding and closed the incision in Mrs. Harris' back. Mrs. Harris was then transferred to another bed and placed on her back so the surgeons could begin resuscitation efforts.

Dr. Miller attributed the low pulse and blood pressure to massive unexplained and unaccounted bleeding. Thinking blood may have been entering the abdomen, Dr. Miller consulted with Dr. Coleman, a general surgeon with a sub-specialty in vascular surgery. Dr. Coleman used a needle to inspect the abdomen for blood and found none. Dr. Coleman then made an incision in the abdomen to examine for blood, again finding none.

Dr. Coleman examined the aorta and indicated that it was flaccid, that the heart was not pumping at a high volume. Dr. Coleman clamped the aorta so blood would not go to the legs, causing the blood pressure to increase. Dr. Coleman closed the incision after the blood pressure returned.

At approximately 1:30 p.m., Mrs. Harris was taken from the operating room to the intensive care unit. Mrs. Harris' condition was still unstable at that time, with a pulse of 110 and a systolic blood pressure of 40. Dr. Miller explained this move was made because the intensive care unit is better equipped for the long-term treatment and monitoring of a patient.

Plaintiff introduced the testimony of an expert in nurse anesthesia care. The trial court, however, would not allow this expert to testify that under the circumstances nurse Hawkes needed supervision in determining that a problem existed and in stabilizing Mrs. Harris' condition. Based on a voir dire examination, the expert would have also testified that it was Dr. Miller's responsibility to provide necessary supervision.

During cross-examination of plaintiff's experts in anesthesiology, defendant elicited testimony regarding the training and competency of certified registered nurse anesthetists.

Q. Would you explain to the jury, please, what a certified registered nurse anesthetist is?

A. A certified registered nurse anesthetist is--has to first be an R.N. You have to be a registered nurse. Then have to have had certain...