Karp v. Cooley

• Decision Date: 11 June 1974
• Docket Number: No. 73-2146.,73-2146.
• Citation: 493 F.2d 408
• Parties: Shirley KARP, Individually, etc., et al., Plaintiffs-Appellants, v. Denton A. COOLEY and Domingo S. Liotta, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 408 (1974)

Shirley KARP, Individually, etc., et al., Plaintiffs-Appellants, v. Denton A. COOLEY and Domingo S. Liotta, Defendants-Appellees.

No. 73-2146.

United States Court of Appeals, Fifth Circuit.

April 26, 1974.

Rehearing and Rehearing Denied June 11, 1974.

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

Thomas B. Weatherly, Paul E. Stallings, Houston, Tex., for Denton A. Cooley.

A. J. Watkins, Houston, Tex., for Domingo S. Liotta.

Before BELL, THORNBERRY and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 11, 1974.

BELL, Circuit Judge:

Medical history was made in 1969 when Dr. Denton A. Cooley, a thoracic surgeon, implanted the first totally mechanical heart in 47-year-old Haskell Karp. This threshold orthotopic cardiac prosthesis¹ also spawned this medical malpractice suit by Mr. Karp's wife, individually and as executrix of Mr. Karp's estate, and his children, for the patient's wrongful death. Grounded on diversity jurisdiction, and thus Texas substantive law, novel questions concerning experimentation, as well as issues of informed consent, fraud, and negligence are presented. After nine days of trial and numerous ancillary proceedings outside the jury's presence, the district court in a carefully considered opinion directed a verdict for the defendant-appellees, Dr. Denton A. Cooley and Dr. Domingo S. Liotta. Karp v. Cooley, S. D.Tex., 1972, 349 F.Supp. 827. For reasons stated herein, we affirm.

ASSIGNMENTS OF ERROR

There are eleven asserted errors. In assignments one through four, the claim is made that the district court erred in directing a verdict for defendants on appellants' causes of action based on fraud and a lack of informed consent; point five objects to the directed verdict on appellants' claim of fraud, negligence, and gross negligence in the performance of the various surgical procedures; point six is a claim of negligence based on "human experimentation;" point seven claims fraud and negligence in connection with the heart transplant; point eight assigns error in the exclusion of certain records of Baylor Medical School; points nine and ten are objections to the exclusion of Dr. Michael DeBakey's testimony and to alleged inchambers judicial "coercion;" and point eleven assigns error for the exclusion of a motion picture film of the Karp operation. Because of the nature of the questions presented here, we have outlined the evidence presented at the trial in some detail.

FACTS

There is no dispute that prior to entering St. Luke's Episcopal Hospital in Houston on March 5, 1969, Haskell Karp had a long and difficult ten-year history of cardiac problems.² He suffered a serious heart attack in 1959 and was hospitalized approximately two months because of diffuse anterior myocardial infarction. He had incurred four heart attacks, thirteen cardiac hospitalizations and considerable medical care culminating in the insertion of an electronic demand pacemaker in May, 1968. Subsequent hospitalization in September and October, 1968 occurred, and finally the decision was made to seek the assistance of Dr. Cooley. Mrs. Karp telephoned Dr. Cooley on March 3, 1969, and it was agreed Mr. Karp would be in Houston by Wednesday, March 5.

MRS. KARP'S TESTIMONY

Mrs. Karp's testimony in relevant part was that at the time of his hospital admission March 5, Mr. Karp's physical condition was "as normal as any man in the courtroom" and that he was in no pain or discomfort. She testified Dr. Homer L. Beazley, a cardiologist, examined Mr. Karp on March 6 and on a daily basis after that. She said Dr. Cooley first saw Haskell Karp on Tuesday, March 11. She said Dr. Cooley recommended a heart transplant, but that Mr. Karp rejected this suggestion. She said Dr. Cooley next saw Mr. Karp about a week later when he began to talk about a "wedge procedure" and an aneurysm.³ She then testified that she next saw Dr. Cooley the day before Mr. Karp's surgery on April 3, 1969, although she admitted that Dr. Cooley had seen Mr. Karp the night before on April 2 when she was not present. Mrs. Karp testified Dr. Cooley came into the hospital room about 6:30 or 7:00 p. m. on April 3. As Mrs. Karp described this meeting:

"When Dr. Cooley came in, he said, `I have a paper here for you to sign for Mr. Karp\'s surgery,\'<sup>4</sup> and I looked at him, and said, `Why do you want to operate,\' you know, `tomorrow after keeping us here so long? Can you tell me about it?\'

"And he said, `Mr. Karp has taken a sudden turn for the worse. His aneurysm is about to burst. If we wait too long, we may not be able to get into his heart to repair anything.\'

"He says, `I still don\'t know whether we can even wait till tomorrow.\'

"I said to him, `You once told me, Dr. Cooley, that . . . you thought he needed a transplant.\' I said, `Do you still think that\'s the answer.\'

"And Dr. Cooley said to me, `Mrs. Karp, there is a donor heart that will be available and that we will use if there\'s that need for it.\' . . .

"He says, `Will you sign this now?\' And I looked at my husband, and I guess he was in tears because I was shaking. And Dr. Cooley said to me, `don\'t worry about the shock element to your husband because I told him exactly what I told you now last night.\'

"So then my husband said, `Honey, he told me this last night.\' He said, `Go ahead. We\'ll sign the agreement.\'

"And that\'s what happened. My husband signed it — . . . . Then he gave it to me to sign. And I says, `I got to read it first.\'

"And I started to go down it and I was glancing at the — it was all too bewildering and all of a sudden I came across some sort of a mechanical device, and I said, `Dr. Cooley, what\'s this thing here that you have?\'

"I said, `what\'s mechanical device?\'

"And he said, `well you know, Mrs. Karp, when we operate on a heart we have to take the heart out of the body. So what we do is use what\'s commonly known as a heart lung machine and we attach the pipes from the machine to the different arteries that they sever to take the heart out. And this here keeps the flow of blood going through the body and the oxygen so that there will not be any damage to the body.\'

"So he says the reason that he put that into the consent was because the one that they had in the operating room, I believe he said, worked for a matter of maybe two hours or something and this here one was a new model and it was proven in the laboratory, but he sic hasn\'t been used on a human being yet. But that this here should sustain him if he should die on the table. He says it would sustain him for at least thirty minutes in order to get the donor heart into my husband\'s body."

Mrs. Karp also testified that Dr. Cooley did not state that the device was any different from the heart-lung device ordinarily used for open heart surgery, stating that it was a "newer model" that had not been used before. She said Dr. Cooley told her there was a donor heart available in a nearby hospital, and that the mechanical device would be used for only 30 minutes while the donor was being prepared. Mrs. Karp said Mr. Reinhard came to the room early the next morning to verify the signatures. She also testified that Mr. Karp at the time of the April 3 meeting with Dr. Cooley was as normal as when he entered the hospital, that his physical appearance was the same and there was no appearance of pain; and that Mr. Karp was able to walk around the hospital even the morning of the operation. She said both Dr. Beazley and Dr. Cooley had said the wedge excision had a 70 per cent chance of success, and that Dr. Cooley had said that in his own personal experience he had less than a five per cent chance of failure and that it "seemed like it hardly ever failed."

DR. COOLEY'S TESTIMONY

Dr. Cooley testified that he first saw Mr. Karp on or about March 5, 1969 and that he recommended a heart transplant which Mr. Karp rejected, preferring "some alternative procedure." Dr. Cooley said tests then showed Mr. Karp had triple vessel disease where all three coronary arteries were occluded. He said electrocardiograms showed evidence of extensive scarring and damage and that his chest x-rays showed enormous cardiac enlargement. In addition, said Dr. Cooley, he had a pacemaker which was about to fail. Dr. Cooley said he estimated that Karp's chances of dying in the operating room as a result of the wedge procedure were approximately thirty per cent. He testified that as some three weeks passed, Mr. Karp grew increasingly impatient waiting for a donor's availability in the event the wedge excision failed. Dr. Cooley said it was the custom of medical doctors in the community to advise a patient of risks of surgery "within certain boundaries. . . . but not every contingency can be explained to a layman about the threat and the risk of open heart surgery or the type of device which we are using, many of which are being used for the first time in a patient." About a week before the operation of April 4, 1969, Dr. Cooley said he began to discuss with Mr. Karp the possibility of another alternative "which I did not think was proper when he initially came to the hospital."

"I told him we had no heart donor available, had no prospect of one . . . I told him that there was a possibility that we had a device which would sustain his life in the event that he would die on the operating table. We had a device which would sustain his life, hopefully, until we could get a suitable donor. I had told him that I did not know whether it would take a matter of hours or days, weeks, or maybe not at all, but it would sustain his life and give us another possibility of salvaging him through heart transplantation."

Dr. Cooley said he did not recall who was present when these discussions began. Dr. Cooley described his discussion of this device:

"I told him that it was a heart pump similar to the one that we used in open-heart surgery; that it was

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