Kearl v. Board of Medical Quality Assurance
| Decision Date | 05 November 1986 |
| Citation | 236 Cal.Rptr. 526,189 Cal.App.3d 1040 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Sherman L. KEARL, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE of the State of California, Defendant and Respondent. Civ. B010297. |
John K. Van de Kamp, Atty. Gen., and William L. Marcus, Deputy Atty. Gen., for respondent.
Petitioner Sherman L. Kearl, M.D. appeals from a judgment denying his petition
for a writ of mandate ordering respondent to set aside its decision to suspend petitioner's medical license for one year, the suspension to be stayed during a two year probation period. This decision was based on respondent's findings petitioner was grossly negligent in his anesthesia of Janet Halverson, in that he failed to record her vital signs at five minute intervals commencing with the start of anesthesia and he demonstrated incompetence in his anesthesia of Rosa Ortiz, specifically in the anesthetic solution chosen for and the dosage of anesthetic administered to her.
Petitioner received his medical degree from California College of Medicine in 1965 and was licensed to practice medicine in California in 1966. He began a residency program in anesthesiology which was interrupted when he was drafted into the Army. He served as chief of anesthetic and operative services for the military at a hospital in Tokyo; upon completion of his military service, he returned to California where he completed his residency. Since that time, he has practiced anesthesiology in the Los Angeles County area. During that practice, he has worked on over 20,000 cases; approximately one-fourth of those cases involved regional blocks, while the rest involved general anesthesia. He is not Board certified in anesthesiology.
Halverson, a 37-year old woman, was admitted to White Memorial Hospital on June 5, 1975 with degenerative disc disease. She underwent surgery on June 6, for a laminectomy, discectomy and lumbar fusion; petitioner was the anesthesiologist. During surgery, Halverson's blood pressure and pulse rate dropped; resuscitative measures were taken. Following surgery, Halverson remained unconscious and required an automatic respirator; later tests revealed no brain activity. Halverson died on June 17, 1975, following a cardiac arrest.
Petitioner began administering a general anesthesia at approximately 8:00 a.m., and surgery began at 8:15 a.m. Petitioner constantly monitored Halverson's vital signs, recording them approximately every 15 minutes until 9:50, when Halverson's blood pressure and pulse rate dropped. Thereafter, petitioner recorded Halverson's vital signs every five minutes.
Dr. Ernest Strauss testified on behalf of respondent. Dr. Strauss received his medical degree in 1958 and completed an anesthesiology residency. Previously licensed to practice medicine in Michigan, he has been licensed and practicing in California since 1970. He has been Board certified in anesthesiology since 1965, is a fellow of the American College of Anesthesiologists, member of the Los Angeles County Medical Association and past president of the Long Beach Society of Anesthesiologists. He is a clinical professor of anesthesiology at UCLA and on the staff at UCLA-Harbor Medical Center, where he also teaches. He is familiar with community standards for anesthesiologists as they existed in 1975 and had previously testified in two civil malpractice actions.
Dr. Strauss testified petitioner's failure to take and record Halverson's vital signs every five minutes was an extreme departure from community standards. Since it takes only three to four minutes for irreversible brain damage to occur, vital signs traditionally are taken every five minutes to allow physicians to respond in time to changes in vital signs. The recordation also documents trends in the patient.
Dr. Strauss observed petitioner's anesthesia record reflected nothing out of the ordinary occurred during the first 90 minutes of surgery, and once Halverson's blood pressure dropped petitioner recorded her vital signs every five minutes. Dr. Strauss acknowledged only the failure to take vital signs every five minutes is life-threatening.
Petitioner testified on his own behalf. He conceded the common practice in 1975 was to record vital signs every five minutes, but some hospitals provided anesthesia charts with space for recordation at 15 minute intervals. The anesthesia record Dr. Benjamin Shwachman also testified on petitioner's behalf. Dr. Shwachman completed an anesthesiology residency following medical school. He has been licensed to practice in California since 1965 and was Board certified in anesthesiology in 1971. He was a clinical instructor in anesthesiology at USC for five years.
shows trends in the course of the patient's treatment, but is of marginal value to the anesthesiologist during treatment.
Dr. Shwachman noted the anesthesia chart on Halverson adequately showed a stable trend for the first 90 minutes of surgery, reflecting nothing untoward, improper or dangerous. He testified it is acceptable to record vital signs every 10 to 15 minutes as long as the anesthesiologist takes the patient's blood pressure more frequently than that and monitors the pulse continuously. He considered petitioner's taking and recording of Halverson's vital signs to be within the standard of care in the community and not grossly negligent.
Ortiz, 31 years old, underwent an elective caesarean section at Santa Marta Hospital on December 10, 1975; petitioner performed the anesthesiology. Ortiz was four feet six inches tall and weighed between 145 and 152 pounds.
Petitioner administered a regional (spinal) block at approximately 10:10 a.m., and surgery commenced at about 10:15 a.m. Approximately five minutes later, Ortiz suffered respiratory arrest and her blood pressure and pulse rate dropped. Resuscitative measures were taken, and the surgeon commenced delivery of Ortiz's baby. The period of time during which Ortiz was deprived of sufficient oxygen and suffered low blood pressure was between three and ten minutes. As a result of the oxygen deprivation, Ortiz suffered some degree of brain damage.
Petitioner chose as an anesthetic an isobaric solution of 1.2 cubic centimeters (cc's) of Pontocaine and .8 cc's of spinal fluid, injected between the L4 and L5 vertebrae. An isobaric solution is one which has the same specific gravity as the cerebrospinal fluid and tends to stay at the level in the spinal column at which it was injected. It usually takes 10 to 15 minutes for an isobaric spinal to fixate, i.e., stop spreading.
By contrast, a hyperbaric solution is one which has a heavier specific gravity than spinal fluid. Once injected, it tends to remain grouped together in the cerebrospinal fluid and, if it spreads, to spread downward to the lowest available space. The hyperbaric solution tends to move slowly; it fixates within 10 to 15 minutes and usually does not move after that.
Dr. Strauss testified isobaric spinals were not commonly used in Southern California in 1975 due to their reputation for being less controllable than hyperbaric spinals, i.e., they were more likely to move up or down the spinal column with slight movement of the patient. If the anesthetic moved upward, it could result in a high or total spinal anesthetic, blocking the diaphragm and respiration, causing a drop in blood pressure or cardiac arrest, or reaching the brain and causing convulsions or brain damage.
Dr. Strauss assumed Santa Marta was a teaching hospital where surgery was done by residents and patients frequently were repositioned during surgery. In his opinion, the frequent repositioning would call for the use of a hyperbaric rather than isobaric spinal, in that the former was much more controllable.
He also testified a normal, acceptable dosage of Pontocaine would have been .5 or .6 cc's. Ordinarily, for abdominal surgery, Ortiz should have received .8 to 1.0 cc's, but as a rule of thumb, the dosage for a pregnant patient is halved. Both her height, with a short spinal column, and her excess weight, which would cause compression in the spinal column, also would reduce the amount of anesthetic needed.
Dr. Strauss acknowledged the 1975 Physician's Desk Reference contained no warnings about using Pontocaine in an isobaric solution and recommended a dosage of 1.5 to 2.0 cc's of the anesthetic. However, an Petitioner testified volume of the anesthetic solution, rather than dosage of the anesthetic, is the dominant factor in determining how high on the spinal column the block will travel; dosage is the primary determinant of the duration of the anesthetic block. Based on Ortiz's height, he kept the volume of the solution at 2.0 cc's. He acknowledged he was taught to reduce the dosage of Pontocaine given to a pregnant woman, but denied being taught a rule of thumb was to reduce the dosage by one-half.
ordinary anesthesiologist would reduce that amount by one-third to accomodate Ortiz's short stature and again reduce it by half because she was full-term pregnant, making the proper dosage .5 or .6 cc's. Dr. Strauss was of the opinion petitioner's conduct with respect to Ortiz demonstrated a lack of knowledge and ability due to his use of an excessive amount of Pontocaine, resulting in a high or total spinal.
Petitioner testified Pontocaine fixates within 10 to 20 minutes after injection, whether in an isobaric or a hyperbaric solution; however, if a hyperbaric solution is used and the patient is placed in a head down position, there would be an increased level of concern and less trust in the fixation process. An isobaric solution would have less tendency to move if the patient's position changed.
Ortiz was a "teaching case," indicating to petitioner surgery would last...
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