Karp v. Cooley

• Decision Date: 18 October 1972
• Docket Number: Civ. A. No. 71-H-369.
• Citation: Karp v. Cooley, 349 F.Supp. 827 (S.D. Tex. 1972)
• Parties: Shirley KARP, Individually, as Executor of the Estate of Haskell Karp, and as next friend of Joel Karp and Martin Karp, Minors, and Harry Michael Karp, v. Denton A. COOLEY et al.
• Court: U.S. District Court — Southern District of Texas

349 F. Supp. 827

Shirley KARP, Individually, as Executor of the Estate of Haskell Karp, and as next friend of Joel Karp and Martin Karp, Minors, and Harry Michael Karp, v. Denton A. COOLEY et al.

Civ. A. No. 71-H-369.

United States District Court, S. D. Texas, Houston Division.

October 18, 1972.

John H. Holloway, Houston, Tex., for plaintiffs.

Thomas B. Weatherly, Vinson Elkins, Searls & Smith, Houston, Tex., for defendant Denton Cooley.

Charles D. Boston, Fulbright, Crooker & Jaworski, Houston, Tex., for defendants Sam Calvin and St. Lukes Episcopal Hospital.

A. J. Watkins, Watkins & Hamilton, Houston, Tex., for defendant Domingo S. Liotta.

ORDER

SINGLETON, District Judge.

After nine days of trial in the above-captioned malpractice suit based on diversity jurisdiction, the joint motion of defendants Cooley and Liotta for a directed verdict was granted. Fed.R.Civ. P. 50(a). The granting of said directed verdict is based on the following facts and conclusions.

Haskell Karp had a medical history revealing past coronary problems. He had scarlet fever at the age of fifteen. In 1959, at the age of thirty-seven, he had his first heart attack and was hospitalized approximately two months because of diffuse anterior myocardial infarction. In 1961, he began to have episodes of ventricular extrasystoles and was placed on Quinidine. In 1963, he suffered another episode of severe chest pains. In 1966, he had a second acute myocardian infarction on the diaphragmatic surface. After 1966, Mr. Karp had four or five other episodes of infarction or possibly coronary insufficiency. Several times he was hospitalized with severe chest pains but with no EKG or enzyme changes. In April, 1968, he had a syncopal episode and subsequently had an implantation of a Demand pacemaker (heart pacer) placed transvenously into the right ventricle. In September, 1968, he had begun to have episodes of dyspnea, orthopnea, paroxysmal nocturnal dyspnea and developed congestive heart failure. Because of this his pacemaker rate was increased to 72 beats per minute. In spite of this action, he developed heart failure, complained of angina, dyspnea on exertion and edema. Selective cine coronary arteriograms revealed that he had severe three vessel disease, occluded right coronary and also his anterior descending and circumflex branches were occluded somewhat distally. Cardiac catheterization confirmed the fact that he had moderate pulmonary hypertension. A left ventricular cine angiogram showed the presence of an adynamic area in the left lateral wall of the left ventricle. As this point in Mr. Karp's medical history, his Chicago, Illinois, physicians referred him to Dr. Denton Cooley in Houston, Texas, for further treatment and consideration of resection of the adynamic or fibrotic area of the myocardium.

Accordingly, on Monday, March 3, 1969, Mrs. Karp telephoned Dr. Cooley long-distance to set a day when he might see Mr. Karp. Two days later, Wednesday, March 3, 1969, Haskell Karp, 47, accompanied by his wife, was admitted into St. Luke's Episcopal Hospital, Houston, Texas. Upon admission, Mr. Karp signed (as was later established at trial by a handwriting expert) an authorization for medical and/or surgical treatment (TR. EX. 1) which reads:

"I hereby authorize the physician or physicians in charge of Haskell (None) Karp to administer any treatment; or to administer such anesthetics; and perform such operations as may be deemed necessary or advisable in the diagnosis and treatment of this patient.

Date 3/5/69 Signed /s/ Haskell Karp" Witness /s/ Wauneta F. Tappan

Mr. Karp remained as a patient in the hospital for several weeks being examined and treated by several doctors associated with the hospital. During this period of time, Dr. Cooley suggested that Mr. Karp's desire for a more active and productive life-style could best be achieved by a heart transplant. Mr. Karp rejected this suggestion and preferred to undergo ventriculoplasty surgery (wedge procedure) which Dr. Cooley had developed. (All rights under the Dead Man's Statute have been waived.) This surgery necessitates the excision of part of the diseased tissues in the left ventricle in order that the remaining tissue and heart muscle can function at its optimal level.

As regards the informed consent issue, Dr. Cooley testified that he discussed various aspects of the surgery in question with Mr. Karp on at least three occasions: once the week before April 4, again at 10:30 p. m. on the night of April 2, and a brief chat on April 3. According to Dr. Cooley's testimony, of these the most significant was that of April 2. On that occasion, Dr. Cooley explained to Mr. Karp that the ventriculoplasty surgery could be performed on Friday, April 4, 1969. Dr. Cooley testified he explained the risks, grave dangers and backup procedures involved therein. Further, he explained to Mr. Karp that there was a "70-30" chance of his surviving the ventriculoplasty operation. Dr. Cooley explained, as was stated in the written consent form, that if death appeared imminent that his heart would be removed and a mechanical heart substitute (sometimes referred to as the Cooley-Liotta mechanical heart) inserted. Dr. Cooley testified that he told Mr. Karp the mechanical heart substitute would not be permanent but would be replaced as soon as possible by a human heart transplant, but that at that time there was no heart donor available, nor any prospect of one. Dr. Cooley also testified that he promised Mr. Karp he would do all that is humanly possible to insure his well-being and improve his patient's, that is, Mr. Karp's, condition. At that time, Mr. Karp gave him his verbal consent to the surgery.

Mrs. Karp testified that if Dr. Cooley did see her husband that evening (April 2, 1969) that it would have to have been very late for she usually stayed until after 10:00 p. m. with her husband. However, she also testified that on the night in question she went out to dinner at a friend's home late in the evening and did not return to the hospital that night until after this dinner and visit.

Rabbi Wilkin, a Jewish chaplain for the medical center who had been calling on Mr. Karp daily since his admission to the hospital, testified that on one of the days during the week of the surgery (week beginning Monday, March 31, 1969) Mr. Karp had an urgent message sent to him to come to his room. The Rabbi went to his room where he found Mr. Karp alone. Mr. Karp related to the Rabbi the news that he was to be operated on and discussed with the Rabbi the chances of his surviving such surgery as well as the back-up procedures and the fact that he would be the first human recipient of the mechanical heart substitute if the wedge procedure failed. There was no testimony given at the trial to refute Rabbi Wilkin's statements as to his conversations with Mr. Karp.

Mrs. Karp testified that the first time she heard about the impending surgery that had been scheduled was from her husband on Thursday morning, April 3. She also stated that Dr. Cooley came to her husband's room Thursday evening and told both of them that Mr. Karp's condition had taken a turn for the worse and if surgery was not done soon Mr. Karp would die of a "burst aneurysm." Mrs. Karp felt that Dr. Cooley was insistent and very impatient for Mr. Karp to sign the specially prepared surgical consent and to be on his way. She further testified that she did not fully understand the risks involved in the various procedures; however, she did remember specifically asking Dr. Cooley what the words "mechanical cardiac substitute" meant and receiving an explanation.

Dr. Cooley testified that neither good medical standards nor his own personal practice would permit him to tell a patient that his condition was without hope and that he was going to die. Dr. Cooley also stated that his medical opinion, as repeatedly expressed in articles published prior to and subsequent to Mr. Karp's surgery, is that an aneurysm does not burst. He emphatically testified that he could not have stated to the Karps that if surgery was not done soon Mr. Karp would die of a "burst aneurysm."

In regard to Mr. Karp's condition during that first week of April, Dr. Cooley stated that he had determined that Mr. Karp's heart pacer was failing and that, if it began to skip four or five impulses a minute instead of the two or three that it was skipping, Mr. Karp's death would result. This is why the surgery was scheduled with Mr. Karp's consent two days in advance of its actual occurrence.

Mr. Henry C. Reinhard, a St. Luke's Hospital administrator, testified that Thursday, April 3, 1969, he went to Mr. Karp's room where he found Mr. Karp alone and asked him if he had any questions regarding the surgical consent. They chatted for awhile and then Mr. Reinhard left the room. Mr. Reinhard further testified that on the day of surgery, Friday, April 4, 1969, he went to Mr. Karp's room where he found both Mr. and Mrs. Karp present. He asked Mr. Karp if the signature on the following consent form as principal was his true signature wherein Mr. Karp replied affirmatively. Mr. Reinhard then asked Mrs. Karp if the signature as witness on the following consent form was her true signature wherein she replied affirmatively. Having explained to them that he wanted to verify the signature so that he could place his own name on the form, Mr. Reinhard witnessed, as Mrs. Karp had previously done, the following consent form:

"I, Haskell Karp, request and authorize Dr. Denton A. Cooley and such other surgeons as he may designate to perform upon me, in St. Luke's Episcopal Hospital of Houston, Texas, cardiac surgery for advanced cardiac decompensation and myocardial insufficiency as a result of numerous coronary occlusions. The risk of this surgery has been explained to me. In the event cardiac function cannot be restored by excision of destroyed heart muscle and plastic reconstruction of the ventricle and death

...