Johnson v. University Hosp.
| Decision Date | 17 September 1985 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 712 P.2d 950,148 Ariz. 37 |
| Parties | Vickie JOHNSON, as guardian ad litem of Garry Johnson, a minor, Plaintiff-Appellant, v. The UNIVERSITY HOSPITAL, the University of Arizona, the Arizona Board of Regents, the State of Arizona, a body politic, Defendants-Appellees. 6696. |
| Court | Arizona Court of Appeals |
This is a medical malpractice action brought pursuant to A.R.S. § 12-561 et seq. Plaintiff-appellant, Vickie Johnson, brought action on behalf of her son, Garry Johnson, against the defendants-appellees University Hospital, University of Arizona, Arizona Board of Regents and the State of Arizona. Following trial, the jury returned a verdict in favor of the defendants and the trial court subsequently entered judgment in accordance with the verdict. Plaintiff appeals from the judgment as well as the denial of her motion for a new trial.
Prior to discussing the legal issues presented for review, we review the facts in a light most favorable to sustaining the verdict and judgment below. McFarlin v. Hall, 127 Ariz. 220, 619 P.2d 729 (1980).
On November 21, 1975, six-year-old Garry Johnson fell and broke his wrist while playing on monkey bars at a school playground in Tucson, Arizona. Garry was taken to the emergency room of nearby University Hospital where he was examined by Dr. Richard Romfh, a resident rotating through orthopedic service at University Hospital. Dr. Romfh determined that Garry had suffered a compound fracture of his wrist, resulting in one of the bones tearing through his skin. Additionally, the wound had been contaminated with particles of dirt and asphalt from the school playground. Dr. Romfh decided that surgery was required. He also ordered that an antibiotic, Keflin, be administered in the emergency room prior to surgery. Dr. Romfh testified that he ordered Keflin administered because Garry was allergic to penicillin.
Surgery was performed by Dr. Donald Speer, an orthopedic surgeon on the staff at University Hospital, with Dr. Romfh and Dr. Leonard Peltier, chief of the orthopedic surgery department at University Hospital, in attendance. The wound was cleaned (debrided) by scraping the bone marrow cavity, then irrigating the wound with sterile saline solution. Cultures were taken during the course of the operation and sent to the bacteriology laboratory for analysis to determine the nature of any contaminating organisms. The fracture was set and Garry's arm was put in a long-arm, circular plaster cast.
Shortly after midnight on November 22, 1975, the day after surgery, Dr. Romfh cut a pie-shaped piece out of the cast, near the thumb, because of swelling in that area. On November 24th, Dr. Romfh performed a "bivalve" on the cast. This consisted of making two parallel cuts along the length of the cast, thereby loosening the cast and relieving external pressure on the wound. Later that day the culture and sensitivity reports from the bacteriology department with respect to the cultures taken from the wound during surgery were returned. Based upon the reports, Garry's antibiotic was changed from Keflin to Gentamicin because it provided more specific coverage of the organisms identified. Gentamicin was chosen over ampicillin due to Garry's allergy to penicillin and the resulting fear of anaphylactic shock reaction.
On the morning of November 25th, Dr. Speer ordered a complete blood count (CBC), which reflected an increase in Garry's white blood cell count. The increase in the white blood cell count, coupled with a persistent fever, indicated the likelihood of an infection in the wound. That, along with concern over the existence of pressure within the fascia 1 which might lead to a compartment syndrome 2, resulted in the decision to perform surgery.
Surgery was performed on November 25th. The procedure involved removing the cast as well as the dressing underneath the cast and opening up the center portion of the incision that had been made at the time of the initial surgery on November 21st. The surgeon, Dr. Speer, examined the wound but found no indications of infection. Additionally, according to Dr. Speer, there was no evidence of damage from either compartment pressure or pressure from the cast. There was, however, visibly damaged tissue in the area that had been crushed by the fractured bones. Cultures were again taken and the would area debrided.
Following surgery, Dr. Speer chose to place Garry's arm in a circular plaster cast once again. Dr. Speer's rationale for choosing the plaster cast was his desire to immobilize the fracture and to immobilize the soft tissue in that area.
Dr. Speer's postoperative physical examination indicated two significant changes in Garry's condition. First, a decrease in sensation of the fingers and thumb was apparent. Second, when Garry tried to straighten out his fingers, he had great difficulty in doing so and complained of some pain in his forearm rather than at the fracture site. Dr. Speer testified that Garry's symptoms were confusing because, while the physical signs were consistent with a compartment syndrome, the lack of severe pain was inconsistent with such a diagnosis. Nevertheless, Dr. Speer decided to take Garry back into surgery early on the morning of November 26th.
Dr. Speer began the surgical procedure by removing the plaster cast and the underlying dressings. Dr. Speer then examined the wound, noting some soft swelling. A procedure known as "fasciotomy" was then performed. The procedure involves making an incision from the middle of the palm up to the elbow, opening up the arm and exposing all of the muscles in the arm. The fascia which surrounds the arm was then cut from one end of the incision to the other. Each individual muscle is also surrounded by its own fascia and Dr. Speer then cut into the fascia compartment of each individual muscle so that each muscle was released in sequence. Dr. Speer did not notice any swelling or bulging during the procedure, which indicated the lack of a significant compartment syndrome. Dr. Speer also removed areas of dead skin and debrided the wound. Additionally, specimens of damaged muscles were excised to be examined in the laboratory.
After the operation was completed, Dr. Speer elected to leave the wound open. He placed gauze sponges, soaked in saline solution, over the wound. Dry gauze sponges were then placed over the wet sponges and the arm was then wrapped with soft cotton-like material and placed in a plaster cast.
Dr. Speer testified that the object of applying the dressings over the open wound was to prepare the tissue for skin grafting and reconstructive procedures. Additionally, Dr. Speer stated that the use of fluffy gauze and dressings allows the wound to drain out any infectious materials. Following the November 26th procedure, surgery was again scheduled for December 1st.
Following the November 26th surgery, Garry experienced little pain over the next few days. Also, Garry's white blood cell count fell from 29,000 on the 26th to 15,000 on the 29th. Garry continued to experience a low-grade fever. Dr. Speer testified that these signs were consistent with the existence of a continuing infection or the possibility of a developing infection. However, the antibiotic, Gentamicin, was discontinued based upon Dr. Speer's conclusion that it was not effectively combating infection.
Dr. Speer stated that it was necessary to wait five to seven days after opening the wound before attempting a skin graft so that granulation tissue 3 could form. Garry underwent surgery as scheduled on December 1st. The purpose of the December 1st surgery was threefold. First, Dr. Speer wanted to examine the arm again to assess the status of the tissue. Second, further debridement was to be performed to remove any dead tissue. The third objective was to perform a skin graft, if sufficient granulation tissue had formed. Upon removing the cast and dressings, Dr. Speer discovered additional dead tissue in the area of the fracture, which was removed. A skin graft was performed over a region of the damaged ulnar nerve; however, infection was discovered in the upper arm near the site of the fracture so that a skin graft was not attempted in that region. A stainless steel pin was also inserted across the fracture site to hold the fracture in place. Dr. Speer testified that the reason for waiting until December 1st to insert the pin was to decrease the likelihood of infection developing as a result of introducing a foreign body (pin) into the wound. Tissue samples were also taken during the operation.
On December 3rd, Garry was transferred to the care of Dr. Earle Peacock, then head of the department of surgery at University Hospital. Under the care of Dr. Peacock, Garry underwent several reconstructive surgeries. However, despite a multitude of surgical procedures, Garry's hand is deformed and virtually useless.
Suit was originally brought in Pima County Superior Court. However, the Attorney General obtained removal of the action to Maricopa County Superior Court pursuant to A.R.S. § 12-824(B). 4 The matter was referred to a medical liability review panel as required by A.R.S. § 12-567. Following a hearing, the panel found in favor of plaintiff as to three of her claims of malpractice. The panel held for the defendants as to the remaining six claims of malpractice.
Prior to trial, plaintiff's counsel wrote a letter to the chairman of the review panel, requesting assistance in obtaining expert medical testimony for trial pursuant to A.R.S. § 12-567(J). 5 Several letters were exchanged between the panel chairman and plaintiff's counsel. However, no experts...
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