Mallett v. Pirkey
| Citation | 171 Colo. 271,466 P.2d 466 |
| Decision Date | 16 March 1970 |
| Docket Number | No. 22600,22600 |
| Parties | Patrick MALLETT, by and through his next friend, James Mallett, Plaintiff in Error, v. Will PIRKEY, Defendant in Error. |
| Court | Colorado Supreme Court |
Wormwood, Wolvington, Renner & Dosh, Winston W. Wolvington, Denver, for defendant in error.
Patrick Mallett, a minor, through his father, James Mallett, as next friend, was plaintiff in the trial court. Dr. Will Pirkey was defendant. The action was based on allegations of professional negligence by defendant. The jury returned a verdict for the defendant.
Plaintiff alleged that he sustained permanent eyesight injury, with vision loss and central nervous system injury, plus severe emotional disturbances as a result of a tonsillectomy and adenoidectomy performed upon him by defendant, Dr. Pirkey. His claim against Dr. Pirkey is based on three negligence theories--Res ipsa loquitur, general negligence, and a lack of informed consent. Dr. Pirkey's answer included a general denial of the allegations and his third defense alleged that the damages complained of by plaintiff were not proximately caused by any negligence on the part of defendant, but are the proximate result of claimant's condition, unrelated to any acts of the defendant.
For an understanding of our decision in this case it is necessary to relate the facts in considerable detail.
Plaintiff was a normal six-year old child at the time of the surgery in question. His pediatrician had recommended the removal of his tonsils and adenoids because he had suffered repeated throat and ear infections. Patrick's pediatrician recommended Dr. Pirkey to Mrs. Mallett.
Dr. Pirkey is a physician duly licensed to practice in Colorado, specializing in otolaryngology with subspecialities in microsurgery. He has been practicing for 23 years and is Board Certified through national examination in his specialty.
Dr. Pirkey performed tonsillectomies on the same day on Patrick and his two brothers. The surgical procedure was the same for all, and Patrick's brothers suffered no unusual effects. However, when Patrick awoke from the anesthetic after surgery, he related to his mother, a registered nurse, who was at his bedside, that he could not see. Mrs. Mallett testified that she relied on her own experience and therefore assumed that Patrick had received scopolamine or atropine as a preoperative drug and was suffering 'blurred vision' as a temporary reaction. She took him home from the hospital the next day. She did not report his loss of vision to Dr. Pirkey until approximately one week after the operation when Patrick was taken to the doctor's office for a routine post-operative examination. Mrs. Mallett then for the first time related to the doctor all of the symptoms which had occurred after surgery which indicated that Patrick was not able to see properly. Dr. Pirkey immediately arranged for the child to be seen by an ophthalmologist who sent Patrick to the hospital for treatment, with no marked success. Patrick's sight remains seriously impaired. His visual difficulties The allegations of negligence against the defendant pertain to the use of an injection procedure after the removal of plaintiff's tonsils. A combination of three drugs--depo-medrol, xylocaine, and penicillin--was injected into the tonsil fossae immediately following the removal of his tonsils. It is not disputed that plaintiff suffered severe impairment of vision. What is in dispute is the cause of the visual impairment and defendant's liability for the injury.
are permanent and cannot be improved with the use of corrective lenses.
Plaintiff established that the injection procedure used by Dr. Pirkey as part of the tonsillectomy procedure is not used by any other doctor in the Denver area. It is used at some university medical centers in other states and it is being used in some cities in the United States. It does not have nation-wide prevalence. There was introduced into evidence three medical articles written by innovators of the procedure--including Dr. James T. King, of Atlanta, Georgia--which discuss the procedure and the results of its use. Dr. King also testified as an expert witness for Dr. Pirkey.
Five potential dangers in the procedure were outlined in Dr. King's paper. The greatest peril was hemorrhage caused by damage to the internal carotid artery and/or intraarterial injection. Another peril was said to be allergic or toxic reaction.
Plaintiff's evidence reflects that defendant did not discuss the risks and hazards of the injection procedure with Patrick's parents prior to the tonsillectomy. The testimony is that he discussed the risks of the tonsillectomy generally--the general danger associated with a general anesthetic, the danger of bleeding immediately post-operatively and the danger of late bleeding. Mrs. Mallett testified that she was aware generally of the risks associated with a tonsillectomy but had never heard of the injection technique; nor was she aware of the risk of partial blindness.
Mrs. Mallett signed a 'Consent to Operation and Anesthesia' form. It read in part: 2. The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications have been fully explained to me. I acknowledge that no guarantee or assurance has been made as to the results that may be obtained.'
Over objection, plaintiff produced a witness--Lyn Lipscomb--who testified that she had undergone a tonsillectomy, including the injection procedure, performed by Dr. Pirkey previous to the time of plaintiff's tonsillectomy. She too had experienced visual impairment after the surgery, and she still has blind spots. Her visual difficulties are not of the same severity as those of the plaintiff. She testified that she visited the defendant 11 days before the Patrick Mallett surgery, at which time she complained of her impaired vision. Dr. William Tandy, a qualified physician, who was treating Miss Lipscomb, was also permitted to give his opinion through a deposition that Miss Lipscomb has permanent visual damage which 'arose as a result of the injection after the tonsils were removed by this combination of depo-medrol, penicillin, and xylocaine entering the internal carotid artery and going from there through the opthalmic artery to the retinal artery.' He testified that it was his judgment that the specific mechanism of injury in the cases of Miss Lipscomb and Patrick Mallett was the passing of the combined drugs into the blood stream by injection through the internal carotid artery to the much smaller retinal artery resulting in the blood supply blockage in the retinal artery. Dr. Tandy testified that there are several risks involved in the procedure including the risk of injection into an artery and that in his opinion the risks do not justify the procedure; nor did he believe that the procedure is routine or accepted in the general medical community. In his opinion any use of the procedure would require an explanation Dr. John C. Long, one of the physicians who examined the plaintiff postoperatively, also was a plaintiff's witness who testified that one could not be certain of the cause of Patrick's difficulty but that in his Conjectural opinion Patrick's partial blindness was the result of a cutting off of the blood supply to the retinal arteries In some way. In such a case he stated that it would be important to institute medical corrective procedures promptly.
of risks and benefits to the parents of a minor child.
The testimony of Dr. Pirkey and the expert witness, Dr. King, one of the innovators of the new technique, brought out that the purpose of using the procedure was for the benefit of the patient, to reduce postoperative bleeding, the chance of infection, and to alleviate pain.
Dr. Pirkey testified that the injection procedure in question was first brought to his attention at a meeting of the American Academy of Ophthalmology and Otolaryngology in Chicago. It had been tested in 3803 cases without any serious complication before he used it. He himself had performed 14,000 tonsillectomies in his practice and had used the injection procedure somewhere between 110 and 120 times before he operated on Patrick and his brothers. Regarding the case of Miss Lipscomb, Dr. Pirkey stated that at the time he operated on Patrick he did not associate the visual problem of Miss Lipscomb with the procedure and did not know that Miss Lipscomb's condition was of a permanent nature.
Defendant's evidence established that the first notice Dr. Pirkey had of Patrick's visual difficulties was at the time of the postoperative visit to his office.
Defendant testified that he had not injected the medicine into the carotid artery on either side, and there was testimony by the anesthesiologist who assisted him at the operation that no such injection into the carotid artery was made. The transcript contains a detailed description of the effect of injection into an artery which it is not necessary to repeat except to state that there was no evidence introduced that Dr. Pirkey had in fact injected into the carotid artery.
There was testimony that it is accepted medical practice to check for allergy to penicillin simply by asking about past history, and that Mrs. Mallett reported that Patrick had taken penicillin with no allergic effects previously. She also reported to the intern who took Patrick's history before surgery that he had no other known allergies.
Defendant's witness, Dr. King, testified as to the injection procedure. He is a highly qualified physician who has been practicing in Atlanta, Georgia, for 20 years, specializing in ear and throat. He had personally used the procedure in 1086 cases and...
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