Patterson v. Van Wiel
| Decision Date | 30 August 1977 |
| Docket Number | No. 2805,2805 |
| Citation | 570 P.2d 931,91 N.M. 100,1977 NMCA 104 |
| Parties | Gloria Sue PATTERSON and Stanley R. Patterson, Plaintiffs-Appellants, v. Larry J. VAN WIEL, M.D., Albuquerque Anesthesia Service, Ltd., and Presbyterian Hospital Center, Inc., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiffs sued Dr. Larry J. Van Wiel, an anesthesiologist, and Albuquerque Anesthesia Service, Ltd., his employer, for medical malpractice in administering an epidural anesthetic to plaintiff Gloria Sue Patterson (Gloria). Plaintiffs also sued Presbyterian Hospital Center, Inc. (Presbyterian) for negligent failure to furnish and have available necessary emergency equipment for injuries suffered following the anesthetic given by Van Wiel. Defendants were awarded summary judgment and plaintiffs appeal. We affirm.
On January 6, 1973, Gloria entered Presbyterian for the delivery of her child. Her physician was Dr. Stephen Michael Kranz, an obstetrician and gynecologist. Induction of labor was not successful on the first day, and on the following day, January 7, induction was restarted. During the evening of January 7, her contractions became regularized and she went into "good" labor. At 12:15 a.m., January 8, Dr. Kranz made a request for an epidural or caudal anesthetic.
The nurse on duty in the labor room advised Van Wiel that Dr. Kranz wanted an anesthetic administered. Van Wiel came into the labor room and gave Gloria a lumbar epidural anesthetic. She suffered a respiratory arrest which went into a cardiac arrest for less than a minute. Resuscitation was immediately undertaken and the baby was born.
1) Did Van Wiel obtain the informed consent of Gloria for the giving of the anesthetic?
2) Was emergency equipment immediately available?
It requires no citation of authority of the law on summary judgment. First, defendants must make a prima facie showing that no genuine issue of material fact existed on the subject of informed consent given by Gloria to Van Wiel to administer the anesthetic, and that Presbyterian had emergency equipment available immediately after the anesthetic was given Gloria. Second, when this prima facie showing has been made, the burden shifts to the plaintiff to show that there is additional proof to the contrary which creates a genuine issue of material fact. If plaintiff fails to carry the burden, defendants are entitled to summary judgment as a matter of law.
Van Wiel established the following uncontroverted facts:
When he came into the labor room, he identified himself, and told her that he had been notified that she would like to have an epidural. He said something to the effect that, "I understand you're ready for an anesthetic," or, "Would you like to have one now?" She told him that he could give her an epidural, and he told her how it would be done, that she would be put on her side, put a "local" in her back, put the needle in and inject the medicine and expect that she would become numb from the waist down. He also told her that with any kind of anesthetic there is some kind of risk involved; that the risk of serious complications was about one to one thousand. He asked if she had any questions, and she did not have any. "She was in much discomfort at that time; she was anxious to receive an anesthetic." She understood the nature of his questions and there was no impairment to her ability to consent to the anesthetic.
This constituted a prima facie showing that Gloria expressly consented to the anesthetic. Consent may be oral or written. Van Wiel gave a full and frank disclosure to Gloria of all pertinent facts relative to the anesthetic. Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973) (Sutin, J., specially concurring), rev'd on other grounds, 86 N.M. 141, 520 P.2d 869 (1974), rev'd, 87 N.M. 52, 529 P.2d 278 (Ct.App.1974).
There is no evidence nor any fact in the record that Gloria, by language, act or conduct, refused to consent to the anesthetic given by Van Wiel. She had no memory of the presence of Van Wiel or the anesthetic shot in her back. She could not recall Van Wiel telling her anything about anesthetics. There is no evidence that Gloria suffered any brain damage nor any evidence that Van Wiel's treatment caused any impairment of memory. She was examined by a neurosurgeon and a psychiatrist, but the record is silent on their opinions. To fulfill the burden imposed on plaintiff, they had a duty to seek the opinion of an expert to determine why Gloria could not remember or recall this serious and exciting event in her life. If they did perform this duty, the results were adverse. If they did not, Gloria's lack of memory is synonymous with silence. Silence cannot defeat Van Wiel's motion for summary judgment. Baca v. Britt, 73 N.M. 1, 385 P.2d 61 (1963).
Upon her entrance into the hospital on January 6th, an employee of Presbyterian asked her to sign a form consenting to her being given an anesthetic. She told this employee that she had not discussed the matter with her doctor and she would not sign the consent form. She did not want an anesthetic. Dr. Kranz never discussed anesthetics with her in the hospital. Dr. Kranz is not a party to this action. Dr. Kranz may have negligently failed to advise Gloria of the need for or risk of receiving an anesthetic. Assuming arguendo Dr. Kranz' negligence or breach of duty, we cannot impute any liability to Van Wiel. No theory of imputation was pleaded by plaintiffs, suggested during trial, nor raised on appeal. Gloria could remember all the facts before and after the anesthetic was given, but for reasons which cannot be explained, she did not tell Van Wiel that she did not want an anesthetic. The law does not provide a way that we can use athletically to jump over uncontroverted facts and land on a refusal to consent.
Plaintiffs' argument consists of a recitation of the facts. Van Wiel and Presbyterian meander through the facts and plaintiffs conclude that this case should be presented to the jury with instructions that they consider non-expert testimony and surrounding circumstances in conjunction with expert testimony in determining the question of negligence. No authority has been cited on those guidelines which affect the liability of doctors and hospitals on the availability of emergency equipment.
Van Wiel and Presbyterian established the following facts:
Shortly after the anesthesia was administered, the patient started to show signs of difficulty in breathing and there was a drop in blood pressure. Gloria became somewhat cyanotic a bluish or purplish discoloration of the skin due to a deficient oxygenation of the blood. For less than a minute she may have had a cardiac arrest. In response to the drop in blood pressure, Van Wiel had the drug ephedrine administered through an intravenous device set up and placed in operation prior to administering the anesthesia. To assist her in breathing, initially, he used an oxygen mask and then an "ambu-bag." An "ambu-bag" is a balloon-shaped face mask that, when squeezed, facilitates the patient's breathing or it "breathes for" the patient. An expert on anesthesiology testified by affidavit as follows Emergency Treatment
A. I am familiar with and have personal knowledge of the emergency equipment available in and to the labor rooms at Presbyterian Hospital on January, 1973. The equipment included devices installed in each labor room to permit administration of oxygen; the anesthesia supply cart in the room during the administration of a lumbar epidural anesthesia contained drugs such as ephedrine that could be given intravenously in case of emergency; and an ambu-bag was located a few feet from each labor room. Additional equipment and drugs for use during emergencies were located in the delivery room (a surgical suite) only a few feet from the labor room in which Mrs. Patterson was treated.
B. Based upon my review of the materials herein it is my opinion that after Mrs. Patterson experienced a significant drop in blood pressure while in the labor room, Dr. Van Wiel and Dr. Kranz treated Mrs. Patterson in accordance with the accepted standard of care during 1973. Specifically, a medication, ephedrine, was administered in response to the drop in blood pressure. This is a drug that is used to treat a rapid drop in blood pressure and is maintained on the anesthesia cart for that specific purpose. It was given to Mrs. Patterson through the intervenous (sic) device that had been set up and placed in operation prior to the administration of anesthesia. In addition to the giving of ephedrine, Mrs. Patterson also received oxygen from the equipment located in the labor room.
C. During the period of time Mrs. Patterson was receiving emergency treatment in the labor room, her vital signs were being monitored by Dr. Van Wiel. As soon as he noted that her respiration was impaired, he requested from the nurse and received an ambu-bag which he used to ventilate (breath for) the patient after she could no longer do this on her own. The patient was transferred to the delivery room, at which time an endotracheal tube was placed, the tube was connected to a ventilating machine and the patient was mechanically ventilated thereafter until her own ability to ventilate was restored. Additional medications were administered in a timely fashion after the patient was transferred to the delivery room.
D. As indicated above, I reviewed the records with...
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