Pace v. Zilka
| Decision Date | 25 February 1986 |
| Docket Number | No. 84CA1241,84CA1241 |
| Citation | 484 So.2d 771 |
| Parties | Betty Raye PACE v. Dr. Ezeckiel ZILKA, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Harry L. Shoemaker, III, Baton Rouge, A. Foster Sanders, Baton Rouge, for plaintiff-appellant Betty Raye Pace.
Daniel R. Atkinson, Baton Rouge, for defendant-appellee U.S. Surgical Corp.
Brent E. Kinchen, Baton Rouge, for defendant-appellee HCA Health Services of Louisiana, Inc. d/b/a Doctors Memorial Hosp.
Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.
Following complications and remedial surgery after a gastric partition operation (laparotomy), Betty Raye Pace (plaintiff) brought this medical malpractice and products liability action against Dr. Ezeckiel Zilka; Dr. Mike O'Brian; HCA Health Services of Louisiana, Inc. d/b/a Doctors Memorial Hospital (Doctors); Auto Suture Company, Division of United States Surgical Corporation (Auto Suture) and United States Surgical Corporation (U.S. Surgical) (defendants). A motion for summary judgment by U.S. Surgical and Doctors was granted dismissing them from this litigation. After denial of her motion for a new trial, plaintiff has appealed to this court.
Plaintiff sought treatment from Dr. Zilka for weight loss and problems from a prior bowel bypass performed by another doctor several years earlier. On January 8, 1980 Dr. Zilka reconstructed plaintiff's bowel bypass to its original condition and performed the first laparotomy, which was successful for about six months.
Dr. Zilka did a second laparotomy on March 26, 1982, at Doctors which revealed that the staples from the first laparotomy had separated. Dr. Zilka attempted to use the Mason procedure to reduce the stomach capacity to between one and two ounces, by creating a pouch and funneling food through a surgically created small "tunnel" or narrow channel. This procedure required the combined use of two stapling devices, and EEA and a TA90, manufactured by U.S. Surgical and owned by Doctors. The EEA is used to create a hole so the TA90 can be inserted behind the stomach. Firing the TA90 creates a stainless steel staple line which closes the back to the front wall of the stomach, forming a small pouch. A nasogastric tube is inserted during surgery to drain the stomach to avoid stretching and separating the staple line.
All of the parties agree that the EEA did not work and that the doctor had to hand suture the area that should have been stapled by the EEA. The doctor's operative note shows that insertion of methylene blue solution through the nasogastric tube revealed a small leak "close to the created gastric defect." Dr. Zilka put extra sutures to control it, found no further leaks, and insisted that this leak was not the same or in the same area as the crucial gastric leak at issue here. In his deposition, Dr. Zilka said that this first leak was "at the cut end ... where we cut it ... at the edge ..." and the gastric leak at issue "was not at the edge." An operative note written after the remedial surgery on March 30, 1982, located this leak "close to the staple line at the proximal part of the tunnel that was created previously," that is, in the tunnel or pocket created surgically in the March 26 operation.
Plaintiff sued in tort and products liability based upon the failure of the EEA during surgery, its alleged cause of the gastric leak which necessitated the corrective surgery, unknown acts performed upon her while she was under the control of the doctors and the hospital (based upon res ipsa loquitur ) and delay and failure of the duty to monitor and care for her, with resulting severe symptoms and near death.
In answers to defendants' interrogatories, plaintiff stated:
On Friday [March 26] after I came out of surgery, I begged him to take me to X-ray because bile was coming up in my throat. He said I was just scared because I had worked in a hospital, that there was nothing wrong. On Monday, I was swollen and they took me in to X-ray. I asked Dr. Zilka to tell me what it was and he said It's...
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