In re Geiger

• Decision Date: 23 August 1994
• Docket Number: Bankruptcy No. 89-01062-293. Adv. No. 89-0154.
• Court: U.S. Bankruptcy Court — Eastern District of Missouri
• Parties: In re Paul W. GEIGER, Debtor. Margaret KAWAAUHAU & Solomon Kawaauhau, Plaintiffs, v. Paul W. GEIGER, Defendant.

172 B.R. 916 (1994)

In re Paul W. GEIGER, Debtor.

Margaret KAWAAUHAU & Solomon Kawaauhau, Plaintiffs, v. Paul W. GEIGER, Defendant.

Bankruptcy No. 89-01062-293. Adv. No. 89-0154.

United States Bankruptcy Court, E.D. Missouri, Eastern Division.

August 23, 1994.

Warren P. Geiger, Rocky River, OH, Michael K. Sheehan, St. Louis, MO, for debtor.

Norman Pressman, St. Louis, MO, for plaintiffs.

A. Thomas DeWoskin, Trustee, St. Louis, MO.

MEMORANDUM OPINION

DAVID P. McDONALD, Bankruptcy Judge.

JURISDICTION

This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a "core proceeding" pursuant to 28 U.S.C. § 157(b)(2)(I), which the Court may hear and determine.

PROCEDURAL BACKGROUND

On March 16, 1989, Dr. Paul W. Geiger filed his voluntary petition seeking protection under Chapter 7 of the Bankruptcy Code. Plaintiffs, Margaret and Solomon Kawaauhau, filed this adversary complaint seeking to deny discharge of the debts Dr. Geiger owed them as a result of a judgement they received in a state court malpractice suit. Plaintiffs assert that Dr. Geiger's conduct, which gave rise to their recoveries, was willful and malicious as those terms are used in section 523(a)(6) of the Bankruptcy Code.

FACTUAL BACKGROUND

Upon consideration of the testimony, record and argument of counsel the Court finds that:

Debtor, Dr. Paul Geiger, served as Mrs. Kawaauhau's physician for approximately five (5) years, from 1977 until 1983, during which time he treated her for a variety of ailments, including, diabetes, obesity, hypertension, chronic obstructive pulmonary disease and congestive heart failure. On or about January 4, 1983, Mrs. Kawaauhau sought medical attention from Dr. Geiger after dropping a box on her right foot. During her visit to Dr. Geiger's office, Mrs. Kawaauhau complained of chills, dizziness, pain in her right calf and having had a 102 degree fever the previous night. Her right leg experienced some jerking. Mrs. Kawaauhau's leg was swollen and red and pus oozed from beneath the nail of the large toe on her right foot.

Dr. Geiger diagnosed Mrs. Kawaauhau's condition as thrombophlebitis of the right leg, prescribed oral doses of Tetracycline in addition to standard thrombophlebitis treatment, and admitted her to the hospital. A blood analysis performed after her admission to the hospital displayed a "left shift" in her blood's composition. After her first day in the hospital, Mrs. Kawaauhau developed a blister on her right calf. On January 5, 1983, Dr. Geiger had hospital personnel sample and analyze both tissue from Mrs. Kawaauhau's large toe and fluid from the blister on her leg. The analysis of the blister fluid identified Gram positive cocci bacteria in pairs. The culture made from Mrs. Kawaauhau's toe tissue suggested that Tetracycline was effective against the bacteria in her system. Dr. Geiger continued to treat Mrs. Kawaauhau with Tetracycline administered orally, except that she was given one dose of Vigramycin (I.V. Tetracycline) intravenously.

On January 6, 1983, further tests revealed the presence of beta streptococcus bacteria in Mrs. Kawaauhau's system. Dr. Geiger continued to treat Mrs. Kawaauhau with Tetracycline administered orally. The tests were returned five days later.

On January 7, 1983, Dr. Geiger stopped treating Mrs. Kawaauhau with Tetracycline and prescribed Penicillin for her, to be administered orally. Dr. Geiger testified in a subsequent malpractice suit, in which he was the defendant, that he knew that Penicillin, administered intravenously, would have been more effective than oral Penicillin but that he prescribed oral Penicillin because Mrs. Kawaauhau had previously conveyed to him her desire to minimize the cost of her treatment¹ and he believed she was absorbing medicine through her stomach well.

Debtor left Mrs. Kawaauhau in the care of other doctors when he went away on business on January 8, 1983. These doctors treated Mrs. Kawaauhau with Moxam and Penicillin, administered intramuscularly, and, because her condition had continued to deteriorate, arranged to fly her to Honolulu where she could receive care from an infectious disease specialist. Upon his return on January 11, 1983, Dr. Geiger canceled Mrs. Kawaauhau's transfer to Honolulu because he thought she looked stronger and more alert than when he left her days earlier. Also on January 11, 1983, Dr. Geiger discontinued giving Mrs. Kawaauhau all antibiotics. Dr. Geiger based this decision on the grounds that:

(a) Mrs. Kawaauhau\'s blood was very thin (coagulating very slowly) and that antibiotics have a tendency to thin one\'s blood;

(b) He thought the infection in Mrs. Kawaauhau\'s leg had burned itself out;

(c) a culture of the leg suggested that there was no strep bacteria left in the leg; and

(d) the Doctor was concerned with the possibility of Mrs. Kawaauhau developing a superinfection.

Mrs. Kawaauhau did not receive any antibiotics for two days and on January 14, 1983 after further deterioration in the condition of her leg, and consultation with surgeons, the decision was made to amputate Mrs. Kawaauhau's leg below the knee.

Mrs. Kawaauhau and her husband Solomon sued Dr. Geiger in the Circuit Court for the Third Circuit of Hawaii for medical malpractice based on his treatment of Mrs. Kawaauhau's right leg. The Kawaauhaus presented the expert testimony of Dr. Peter Halford, a board certified surgeon, at that trial. Dr. Halford testified that Dr. Geiger had failed to provide adequate care in his treatment of Mrs. Kawaauhau's leg when he:

(a) failed to diagnose Mrs. Kawaauhau\'s condition as an infection by the second day of hospitalization;

(b) administered Tetracycline to Mrs. Kawaauhau because it is not a very effective antibiotic and poses a risk to people like Mrs. Kawaauhau who have kidney problems;

(c) failed to administer Penicillin on January 5, 1983, the day the lab identified the bacteria in Mrs. Kawaauhau (the expert testimony indicated that Tetracycline, unlike Penicillin, is not effective against the type of bacteria the lab identified);

(d) prescribed oral doses of Penicillin rather than intravenous Penicillin (which expert testimony indicated would have been more effective);

(e) discontinued administering antibiotics to Mrs. Kawaauhau on January 11, 1983; and

(f) canceled Mrs. Kawaauhau\'s transfer to Honolulu.

Dr. Geiger testified in his own defense and acknowledged that he recognized that, from January 7 to the morning of January 12, the standard of care for Mrs. Kawaauhau was penicillin by intravenous route for her streptococcus infection. He said such treatment was the best, ". . . but sometimes we're not permitted to give the best." He insisted that Mrs. Kawaauhau complained that medical expenses were too high and she wanted to keep the cost down. Based on her statements he used oral penicillin, which cost $4.00 per day, in contrast with intravenous penicillin that costs $40.00 per day.

Prior to the state court trial, Dr. Halford reviewed Dr. Geiger's treatment of Mrs. Kawaauhau and prepared a report of his review. At trial Dr. Halford testified that, in his report, he had concluded that, "I feel that this patient could have been and should have been managed differently, and her outcome would have been drastically different."

In preparation for the instant adversary complaint Dr. Peter Halford gave the following testimony in his deposition:

Q. What is the first area of mismanagement that you noticed with respect to Dr. Geiger\'s care of Mrs. Kawaauhau?

A. The first area involved the misdiagnosing this as a phlebitis rather than an infectious process when she had very obvious signs of infection, namely, pus from the toenail, redness, swelling, fever and a high white count.

Q. What\'s the next area of substandard or mismanagement that you noticed in her care?

A. The next problem was that of the wrong antibiotics being utilized for treatment of her infection. He utilized Tetracycline, which is not proper for the type of infection that she had, especially with her having underlying diabetes, hypertension and obesity.

. . . . .

Q. Eventually did Dr. Geiger administer penicillin to her?

A. That was the third problem with this case, was that he eventually did pick penicillin. It was however, some four days after he should have started penicillin and he gave it by the wrong route, primarily — I mean he gave it by the wrong route, meaning he gave it by mouth instead of by vein, and the blood levels just cannot be reached properly by mouth that you need to address this type of life-threatening infection.

Q. What do you mean by blood levels? Can you explain to us the effectiveness of oral penicillin versus intravenous?

A. By blood level I mean the amount of antibiotic that reaches the blood and in turn gets delivered to the area where the infection is proceeding. You need to get that high level of penicillin chemical into the bloodstream. And to give it by mouth means it has to go through the digestion process and get absorbed by the stomach, and even the best of oral doses won\'t reach as high a level as you need — as you can get by giving it intravenously directly into the bloodstream.

. . . . .

A. I think that cost certainly plays a role in what we choose if you have an alternative that is more economically feasible, but cost should have no role in directing your therapeutic efforts when you are dealing with life and death. And to me that was a gross error that was made by being concerned about several hundred dollars versus the loss of limb and life.

. . . . .

A. A fourth area of concern was that he actually stopped all intravenous antibiotics that were being administered to her on January 12th, I believe.

. . . . .

A. The significance, I believe, is that it reveals that Dr. Geiger knew, in fact, that intravenous penicillin

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