Hill v. Boles

• Decision Date: 27 June 1979
• Docket Number: No. 60788,60788
• Citation: 583 S.W.2d 141
• Parties: Christopher Shawn HILL, a minor, by and through Ronald D. Hill, his father and next friend, Plaintiff-Appellant, v. C. Read BOLES, M. D., and St. Louis Children's Hospital, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 141

583 S.W.2d 141

Christopher Shawn HILL, a minor, by and through Ronald D Hill, his father and next friend, Plaintiff-Appellant, v. C. Read BOLES, M. D., and St. Louis Children's Hospital Defendants-Respondents.

No. 60788.

Supreme Court of Missouri, En Banc.

June 27, 1979.

Robert Lee Smith, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for plaintiff-appellant.

Eugene K. Buckley, Evans & Dixon, St. Louis, for defendant-respondent St. Louis Children's Hospital.

Doris J. Banta, George E. Lee, Barnard & Baer, St. Louis, for defendant-respondent Boles.

PER CURIAM.

This case was transferred by this court after opinion of the Missouri Court of Appeals, Eastern District, upon application of defendants-respondents. The cause has been further briefed and argued here. This court has concluded the court of appeals opinion by Kelly, J., is correct and we therefore adopt the same without use of quotation marks as follows:

Ronald D. Hill, father and next friend of Christopher Shawn Hill, plaintiff-appellant, brings this appeal from the judgment of the Circuit Court of the City of St. Louis in behalf of the defendants, C. Read Boles and the St. Louis Children's Hospital. Because we have determined that the trial court committed errors which were prejudicial to the plaintiff-appellant's rights, we reverse and remand with directions.

Plaintiff-appellant's Amended Petition charged both Dr. C. Read Boles and the St. Louis Children's Hospital with negligence in the medical care and treatment of the minor, Christopher Shawn Hill. More specifically, the defendant-respondents were charged with negligently administering oxygen to the minor while he was a patient in the Hospital under the care of Dr. Boles, causing him to suffer from retrolental fibroplasia, hereinafter called RLF, an eye disease, causing total blindness in the minor's right eye and loss of sight in his left eye so that its vision was limited to simple light perception. Plaintiff-appellant's First Amended Petition alleged that he suffered mental, emotional and physical pain and prayed for $1,000,000.00 in damages.

Plaintiff-appellant's First Amended Petition was filed on July 25, 1974. The cause was instituted on May 14, 1971, and between that date and July 20, 1973, considerable discovery was employed by the parties, and on November 12, 1974, defendant-respondent Hospital filed its motion for summary judgment on the ground that there was no genuine issue as to any material fact pertaining to the defense of charitable immunity alleged in paragraph 10 of its Separate Answer to plaintiff-appellant's Amended Petition. On February 21, 1975, defendant-respondent Hospital's motion for summary judgment was heard and taken under submission and on March 10, 1975, the trial court sustained the Hospital's motion for summary judgment.

The cause against the remaining defendant-respondent, C. Read Boles, came on for trial on March 24, 1975, was tried to a jury, and a verdict for the defendant-respondent Boles was returned on April 3, 1975.

Thereafter, on April 15, 1975, plaintiff-appellant filed his motion to set aside the judgment entered on the jury verdict in favor of defendant-respondent Boles and to grant him a new trial as to said defendant-respondent Boles and also a separate motion to set aside the judgment entered in favor of the defendant-respondent Hospital on its motion for summary judgment and for a new trial as to said defendant-respondent. On June 30, 1975, both of plaintiff-appellant's motions were overruled and on July 3, 1975, a notice of appeal from both of these judgments was filed to this court.

The evidence at trial was as follows: The plaintiff was born on May 19, 1969 in Washington County Memorial Hospital, Potosi, Missouri, approximately two months prior to the expected delivery date of July 10, 1969, as projected by the delivering physician, Dr. Kirby Turner. Christopher was the second of a set of fraternal twins, the first born having died shortly after delivery. He was examined by Dr. Turner and the hospital record indicates his general condition was good, including vision, but shortly after delivery the baby showed symptoms of respiratory distress, which included cyanosis (a bluish color of the skin) and grunting. Dr. Turner then prescribed oxygen for Christopher, which he received after being placed in a type of incubator called an isolete.

Dr. Turner advised transferring the plaintiff to St. Louis Children's Hospital, and arrangements were made with the defendant, Dr. Boles, a pediatrician on the staff of Children's Hospital, to whom Dr. Turner had referred children with pediatric problems in the past. Approximately two hours and fifteen minutes after birth, Christopher was placed in a portable isolette and transported by station wagon to St. Louis Children's Hospital.

Plaintiff was admitted to the hospital at 7:30 p. m. and was examined by Dr. Robert Greenwood, a first year intern, who noted the child was a premature infant with respiratory distress syndrome. At this point a blood count, a retriculocyte count (a test to determine whether a baby is producing a high amount of red cells because they are being destroyed), a urinalysis, a chest x-ray, a measurement of how much glucose was in the bloodstream, a throat culture and a blood culture were ordered. Dr. Greenwood also prescribed sodium bicarbonate due to a finding of low blood acidity. Throughout this time Christopher was also receiving oxygen at a rate of approximately 50%, a significantly higher percentage than the 20 to 21% Normally found in the atmosphere.

Defendant Boles arrived at around 9:30 p. m. and examined the plaintiff, observing the child was in an isolette, receiving fluids through a catheter which had been inserted at Washington County Hospital. He found the child was in respiratory distress, manifested by an increased breathing rate, grunting, increased movement of the abdomen, as well as the chest wall, which was sinking in, a bruise covering the entire head, and moderate cyanosis. The first written order for oxygen was 40 to 50 percent, issued on May 20, 1969, between one and two a. m., and later that morning a second written order prescribing: "less than 40 per cent oxygen unless cyanotic" was put into effect. This order remained in effect until 7:30 a. m. on May 24, 1969.

Dr. Boles returned on May 20, 1969 to examine the child and found he still had respiratory distress. The x-ray taken showed the child had bronchial pneumonia and Dr. Boles stated this was present on May 21, 22 and 23, 1969, and was a condition which warranted the continuation of oxygen. No additional x-rays were taken however. Dr. Boles testified his decision was based on daily examinations of the child during which the isolette was opened to determine how the child reacted to the change in oxygen, a procedure called "challenging." During this period Dr. Greenwood testified that he also regularly examined the plaintiff outside of the isolette and he determined that oxygen was necessary on May 21, 22, and 23, 1969, because the child showed rapid respiration and began to develop signs of respiratory distress when removed from the isolette. The hospital chart reflects no such observations nor does it reflect that the infant was challenged. The oxygen was ordered turned off by Dr. Greenwood on May 24, 1969, by telephone after he received a call from a nurse stating she had gotten an elevated oxygen reading.

Throughout the time plaintiff was receiving oxygen, readings were taken by nurses of the oxygen concentration. The concentration on May 21st ranged from a low of 30% To a high of 38%. On May 22nd the only measurement shown was 30%. On May 23rd there were readings of 30% To 34%, and finally May 24th shows readings of 50%, 48% And 44%. These last readings appear to be errors because there is no evidence presented showing oxygen continued after 7:30 a. m., May 24, 1969.

Christopher was discharged from the hospital on June 26, 1969, after reaching a desired weight of 5 pounds. It was determined that plaintiff's parents would take plaintiff to Dr. Turner within a month for an examination. At the time of discharge there was no indication plaintiff suffered from RLF.

On July 25, 1969, Dr. Turner examined Christopher and did not notice anything abnormal about his vision. He reported that, aside from being small, the baby was healthy and normal. He also examined Christopher on October 1, 1969, when his parents brought him in with a sore throat and upper respiratory ailment, and again noticed no abnormalities other than weight. Christopher's parents did not mention any condition concerning his eyes to Dr. Turner.

In mid-October, 1969, the Hills noticed a "rolling, jerking movement" of Christopher's eyes and when they brought Christopher to see Dr. Boles on October 29, 1969, for his six month examination they mentioned the condition to him. Dr. Boles was unsuccessful in his attempt at examining the eyes, and referred the Hills to Dr. Allan Kolker, an ophthalmologist in McMillan Hospital, who saw plaintiff on November 5, 1969. According to Mrs. Hill, Dr. Kolker gave no diagnosis. The affidavit of Dr. Kolker, however, states that Christopher had RLF on November 5, 1969, but it does not say he advised the Hills of this diagnosis.

Dr. Kolker referred Christopher to a second ophthalmologist Dr. Isaac Boniuk whose office was located in Queeny Towers of the Barnes Complex. Dr. Boniuk saw Christopher on November 5, 1969, but Christopher was uncooperative when the doctor attempted to examine his eyes, so plans were made to admit Christopher into Children's Hospital on November 16, 1969, to examine him under general anesthesia.

The examination took place on November 17, 1969, at which time an operation was performed on the left eye. Although the Surgical Discharge Summary, transcribed on December 15, 1969, listed the final diagnosis as "RLF, retinal detachment," signed by the...