Hartnett v. O'Rourke
| Decision Date | 24 July 2003 |
| Docket Number | No. 01-1470.,01-1470. |
| Parties | CHRISTOPHER E. HARTNETT; LACEY HARTNETT and GABRIEL HARTNETT, minor children, by parent and next friend, Christopher E. Hartnett, Plaintiffs - Appellants, v. P. TERRENCE O'ROURKE, M.D.; COLORADO SPRINGS SURGICAL ASSOCIATES, P.C., Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
D.C. No. 98-B-2812 (D. Colorado).
Before HENRY, BRORBY, and LUCERO, Circuit Judges.
Christopher Hartnett, Lacey Hartnett, and Gabriel Hartnett filed this diversity medical malpractice action after Dawn Hartnett (the wife of Christopher and the mother of Lacey and Gabriel) died following abdominal surgery performed by the defendant Terrence O'Rourke, M.D., at Penrose Hospital.1 The Hartnetts alleged that Dr. O'Rourke had failed to comport with the applicable standard of care by applying only one ligature of the splenic artery, which led to a massive hemorrhage, and, ultimately brain death. They asserted that Dr. O'Rourke's employer, Colorado Springs Surgical Associates, was vicariously liable for his negligence and that other medical personnel at Penrose Hospital had acted negligently during Dawn Hartnett's surgery and post-operative care.2
The district court granted summary judgment to Dr. O'Rourke and his employer, relying on deposition testimony from Dr. O'Rourke and the surgeon who assisted him, both of whom testified that Dr. O'Rourke had used two ligatures on the splenic artery. The court also concluded that the facts did not warrant the application of the doctrine of res ipsa loquitur In a separate order that is also challenged in this appeal, the district court denied the Hartnetts' request to inspect medical records pertaining to other surgeries performed by Dr. O'Rourke.
Upon review of the record, we conclude that the Hartnetts have offered sufficient evidence in support of their one-ligature theory to render summary judgment unwarranted. We therefore vacate the district court's judgment and remand the case for further proceedings. However, we further conclude that the district court did not err in refusing to apply the doctrine of res ipsa loquitur. We do not address the Hartnetts' challenge to the district court's refusal to allow inspection of the records of other surgeries, allowing the parties to revisit that issue in the subsequent district court proceedings.
We begin with a description of Dawn Hartnett's surgeries. Then, we outline the proceedings in the district court.
In December 1996, Dawn Hartnett, a 31-year-old mother of two, was diagnosed with a pancreatic mass. On January 3, 1997, the defendant Dr. Terrence O'Rourke performed surgery on Mrs. Harntett, removing her spleen, 60% of her pancreas, and a benign cyst. In order to prevent further bleeding, Dr. O'Rourke ligated the splenic artery. The parties agree that, in performing this procedure, the appropriate method is to apply a double ligature.
Both Dr. O'Rourke and the vascular surgeon who assisted him in the operation, Dr. William C. Chambers, Jr., testified in their depositions that Dr. O'Rourke applied a double ligature. However, Dr. O'Rourke's post-operative notes do not expressly refer to a double ligature. The notes state:
Splenic artery was ligated as it came off the celiac and splenic vein ligated as it terminated into the portal vein.
Aplts' App. at 119 (emphasis added).
Initially, the surgery appeared to be successful, and Mrs. Hartnett was transferred to the recovery room in stable condition. However, two hours later, Mrs. Hartnett suffered massive internal bleeding and lost consciousness. In an emergency surgical procedure, Dr. O'Rourke reopened the abdominal incision, observed bleeding from the splenic artery and the tumor bed, and removed a large volume of blood. His post-operative notes describe this second operation as follows:
There was approximately 1500 cc of clotted blood within the abdomen which was rapidly removed. Pressure was applied to the area of the previous dissection. Once the patient was stabilized, it could be seen that there was bleeding from the splenic artery. This was controlled with a clamp and suture ligatures. In addition, there were multiple sites of bleeding in the tumor bed from small veins. These were controlled with suture ligation, clipping, and pressure. There were numerous sutures of 5-0 Prolene and suture ligatures of 3-0 silk.
The patient became progressively stable throughout the procedure . . . . .
Sterile dressings were applied, and the patient was brought back to the intensive care unit in critical, but stable condition.
Id. at 120 (emphasis added).
Despite these efforts, Mrs. Hartnett suffered ischemic encephalopathy (brain injury from decreased blood flow) and never regained consciousness. A neurologist later concluded that she had suffered irreversible brain damage. The family elected to discontinue life support, and, tragically, Mrs. Hartnett died on January 9, 1997.
The Hartnetts filed this diversity action against Dr. O'Rourke, Colorado Springs Surgical Associates, P.C., and Catholic Health Initiatives Mountain Region, asserting claims for negligence and lack of informed consent. The Hartnetts' negligence theory was based primarily on Dawn Hartnett's medical records and on the testimony of their expert, Dr. Mark Gordon, a general surgeon who reviewed Dawn Hartnett's medical records, wrote a report and an affidavit, and gave deposition testimony. Dr. Gordon's June 23, 1999 report states:
There are several points in this case that do not meet the standard of care. Slippage of splenic artery free ties are known to occur and given a case where there is significant inflammation and difficulty with splenectomy [,] a double ligature including a distal suture ligature should have been utilized. Regarding the nursing care, vital signs, including central venous pressure and arterial line monitoring in a patient undergoing surgery of this magnitude was not performed. This is a breach of the standard of care. The nurses were not in close attendance and the resuscitation effort was slow and ineffective, resulting in prolonged hypotension and severe brain damage. The intensive care nursing in this case was woefully inadequate and the response to the acute emergency of cardiovascular collapse and shock was below the standard and resulted in the death of this patient. There can be no justification for this to have occurred in a close monitored situation such as the intensive care unit.
In deposition testimony, Dr. Gordon explained that his conclusion that a double ligature was not used was based on his interpretation of Dr. O'Rourke's notes after the two surgeries:
I have two operative notes. I have the note of the original surgery and I have the note of approximately three hours later, a little less than that when the patient is back in the operating room being reexplored for massive hemorrhage. The first operative note doesn't mention double ligation, it says ligated and it's very specific about that. Says ligated the artery, ligated the vein and then the second operative note says there was adequate room to get a double ligature on when we went back. Given that type of language, it's natural for me to interpret it verbatim.
Dr. Gordon also explained that his conclusion was based in part on his knowledge of how surgical notes are typically written. Finally, Dr. Gordon stated that if in fact Dr. O'Rourke had double ligated the splenic artery, it was unclear to Dr. Gordon how the artery could have ruptured. He explained that Id.
In contrast, the defendants presented testimony indicating that ligatures may fail (and arteries rupture) for many reasons. In particular, Dr. Jack Pickelman testified that "possible explanations" for the bleeding of Mrs. Hartnett's splenic artery after the surgery included "[t]he ligatures . . . com[ing] off, . . . the sutures . . . fail[ing], or the ligatures . . . in and of themselves damag[ing] the artery, cut[ing] through the artery." Id. at 123. Dr. Bruce L. Gewertz testified that "one possib[le] [cause of the bleeding] is that the ties cut through the artery, that the splenic artery was thin and/or inflamed and that with the constant arterial pressure of the several hours after surgery that the artery was necrosed or fell apart at the point of ligature." Id. at 125. According to Dr. Gewertz, other possible explanations were that "[t]he knot could have come undone" or "[t]he suture could have broken." Id.
Another defense expert, Dr. William Fry, stated that the pulsations of the splenic artery could have possibly caused the bleeding. See id. at 127. Dr. Fry also explained that Mrs. Hartnett could have had a seizure. Id. at 128.
Finally, Dr. Ihor J. Fedorak listed the following possible causes of the bleeding: "failure of th[e] ligation," "mechanical failure of the suture material," and "erosion of the suture material through an inflamed splenic artery wall." Id. at 130. According to Dr. Fedorak, the latter was the most likely cause because "it fits with the time course of Ms. Hartnett's collapse." Id.3 After the parties conducted discovery, the defendants moved for summary judgment, primarily on the grounds that Drs. O'Rourke and Chambers both testified that Dr. O'Rourke used two ligatures on the splenic artery during the first surgery and that the expert testimony indicated that there were many possible causes of the bleeding. The district court accepted both arguments and granted summary judgment to the defendants on the Hartnetts' negligence claim against Dr. O'Rourke and Colorado Springs Surgical Associates.
The Hartnetts then filed a motion to reconsider the summary judgment ruling. They attached an affidavit...
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