Plutshack v. UNIVERSITY OF MINN. HOSPITALS
| Decision Date | 12 February 1982 |
| Docket Number | No. 51087.,51087. |
| Citation | 316 NW 2d 1 |
| Parties | Robert Drazkowski PLUTSHACK, by his natural parent and natural guardian, Christine Drazkowski Plutshack and Christine Drazkowski Plutshack, individually, Appellants, v. The UNIVERSITY OF MINNESOTA HOSPITALS, et al., Respondents, Dr. William Woods, Respondent, Dr. Kenneth Swaiman, Respondent. |
| Court | Minnesota Supreme Court |
Paul Tierney and Peter Krieser, Minneapolis, for appellants.
Geraghty, O'Loughlin & Kenney and James Kenney, St. Paul, for the U. of Mn. Hospitals, et al.
Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan and Mary Jeanne Coyne, Minneapolis, for Dr. Woods.
Bassford, Heckt, Lockhart & Mullin and Greer Lockhart and John Anderson, Minneapolis, for Dr. Swaiman.
Heard, considered, and decided by the court en banc.
Plaintiffs Robert Plutshack, a minor, and Christine Plutshack, his mother, brought this medical malpractice action against defendants Kenneth Swaiman, M.D., William Woods, M.D., Deborah Oleson, R.N., and the University of Minnesota Hospitals. Plaintiffs sought damages upon the allegations that defendants negligently cared for Robert Plutshack and performed certain lumbar punctures upon him without Christine Plutshack's actual or informed consent. At the close of plaintiffs' case the trial court directed a verdict for each defendant. Plaintiffs appeal from the order directing verdicts and from a subsequent order denying their motion for a new trial. We affirm.
Plaintiff Robert Plutshack (Robert) was born on November 11, 1974, with achondroplasia, a condition causing dwarfism, and hydrocephalus, an enlargement of the head due to the accumulation of fluid in the brain. On April 14, 1975, at the age of 5 months, Robert was admitted to defendant University of Minnesota Hospitals (the hospital) for evaluation. His attending physician was defendant Kenneth Swaiman, M.D., the head of the Department of Pediatric Neurology at University of Minnesota's medical school.
A CAT scan, a computer-assisted series of X-rays, was performed on Robert's brain on April 22, 1975. The CAT scan disclosed an abnormal enlargement of the brain ventricles,1 a condition consistent with hydrocephalus. The CAT scan also indicated an unusual malformation in the posterior portion of the left ventricle which the radiologist termed a porencephalic cyst dilation. Such a malformation is not commonly associated with hydrocephalus.
A pneumoencephalogram (PEG) was then ordered for Robert to determine (1) whether there was an obstruction arresting the normal flow of spinal fluid between the spinal cord and the ventricles of Robert's brain and (2) whether there were additional areas of malformation in the posterior portion of his brain.
A PEG is an X-ray of the brain. The procedure involves the introduction of air into the subarachnoid space2 by means of a lumbar puncture (a spinal tap). The air flows up into the ventricles of the brain, outlining and defining them so that abnormalities are readily observable when the brain is X-rayed. In almost all cases, some morbidity attends a PEG. Possible side effects include restlessness, irritability, sweating, nausea, vomiting, diarrhea, fever and collapse. The lumbar puncture itself may cause hemorrhage, infection or impaling of the spinal cord and may alter the pressure relationships in the spinal fluid system.
Robert's mother, plaintiff Christine Plutshack, consented to performance of the PEG. Dr. Leutscher, a neurology resident, attempted to perform a PEG on Robert on April 29 but halted the procedure when he was unable to obtain a flow of spinal fluid sufficient to permit the introduction of air. Robert was discharged upon the recommendation that he be readmitted in two weeks for another attempt at a PEG.
Robert returned to the hospital on May 13. The medical history taken upon his admission indicates that he had recently recovered from a cold. Dr. Leutscher attempted a PEG the following day. Robert's rectal temperature, taken just before the procedure, was 100.4 degrees.3 Dr. John Latimer, a resident in pediatrics who was treating Robert, attributed Robert's elevated temperature to preoperative medication and the fact that the room was warm. Again, the PEG was unsuccessful because Dr. Leutscher was unable to obtain a steady flow of spinal fluid.
By 2 p. m. on the next day, May 15, Robert's rectal temperature had increased to 102.4 degrees. Because of his fever Robert was not discharged from the hospital. Robert's temperature remained at approximately 100 degrees through May 16 but increased to 103.2 degrees by the evening of May 17. Robert had an episode of vomiting and showed signs of ear infection and a stiff neck. These symptoms suggested meningitis.4 A lumbar puncture was ordered to obtain a sample of Robert's spinal fluid for testing to determine whether he had indeed contracted the disease.5
At approximately 12 a. m. on May 18 a nurse telephoned Christine Plutshack's mother, Mrs. Bernard Drazkowski, to ask for consent to the lumbar puncture.6 Mrs. Drazkowski was unable to locate her daughter. Mrs. Drazkowski told the nurse that she would give her own consent to the lumbar puncture.
Dr. Shaw, a resident, performed the lumbar puncture at 2 a. m. In his report Dr. Shaw described the lumbar puncture as "difficult." He attributed the elevated serum glucose that was demonstrated by a subsequent test of Robert's blood to a stress response to the lumbar puncture. Additionally, the lumbar puncture was "traumatic": the needle struck a blood vessel in the meninges surrounding the spinal cord with the result that blood was included in the sample of Robert's spinal fluid. Analysis of the spinal fluid showed the presence of white blood cells. White blood cells are not usually found in spinal fluid; when present, they may indicate meningitis. In the sample of Robert's spinal fluid, however, the number of white blood cells was not disproportionate to the number of red blood cells. It was impossible to determine whether the white blood cells in Robert's spinal fluid confirmed that he had meningitis or were present merely because the lumbar puncture had been traumatic.
Robert's symptoms persisted throughout the day of May 18. That evening Dr. Latimer consulted with Dr. Swaiman by telephone as to the proper course of action. Dr. Swaiman advised Dr. Latimer to perform another lumbar puncture in order to obtain spinal fluid for further analysis. Dr. Latimer testified that after his conversation with Dr. Swaiman he spoke with Christine Plutshack and obtained her consent to another lumbar puncture. Although Christine Plutshack testified that her conversation with Dr. Latimer had taken place during the morning of May 18, she agreed that she gave him permission to perform another lumbar puncture. Dr. Latimer performed the lumbar puncture at 11 p. m. but was unsuccessful in obtaining a sample of Robert's spinal fluid. He made three or four passes with the needle but ceased the procedure in order to give Robert a rest when Robert became flushed and agitated. Another lumbar puncture was scheduled for the following day, May 19.
Robert's temperature remained elevated overnight. At 8:30 a. m. on May 19 defendant William Woods, M.D., the chief pediatrics resident, performed a lumbar puncture upon Robert. Defendant Deborah Oleson, R.N., assisted Dr. Woods; Robert Hunter, a medical student, observed the procedure. Ms. Oleson draped all of Robert's body except his back and held him on his side in a flexed position. Dr. Woods made three punctures; upon the third he was successful in obtaining a flow of spinal fluid. Collection of the spinal fluid took 3-4 minutes. Robert was irritable and cried until halfway through collection of the spinal fluid; at that point he became still. Dr. Woods asked Ms. Oleson if Robert was "okay." Ms. Oleson checked Robert and observed that his chest was moving and his color was pink. Robert reacted when Hunter stimulated his foot. After collection of the spinal fluid was completed, Dr. Woods looked at Robert and made sure that he was breathing. Then Dr. Woods left the room and took the spinal fluid sample to a secretary's desk about 15 feet away.
After Dr. Woods had left the room and about 30 seconds after the procedure had ended, Ms. Oleson removed the drape from Robert and turned the child over onto his back. As Robert was placed in a flat position, his color changed and he became limp. Hunter immediately placed his stethescope on Robert's chest and listened for a heartbeat or the sound of breathing. He heard neither. Hunter called for Dr. Woods; they immediately started cardiopulmonary resuscitation. Robert's heart began to beat spontaneously 2-3 minutes later. Dr. Latimer, who was not present when these events took place, noted in Robert's chart that Robert had experienced "cardiac arrest — probable mechanical injury secondary to positioning for lumbar puncture."
Robert suffered permanent injuries and is now in a semicomatose state. In July 1976 Christine Plutshack, on behalf of Robert and for herself individually, commenced this action against Dr. Swaiman, Dr. Woods, Ms. Oleson and the hospital. She sought compensation from defendants for Robert's personal injuries and the medical expenses she had incurred and would incur on his behalf. She alleged (1) that Robert's injuries were the result of negligent care and treatment on the part of Dr. Swaiman, Dr. Woods and Ms. Oleson and (2) that several of the lumbar punctures performed on Robert had been done without her actual or informed consent. She sought recovery from the hospital on the basis of the doctrine of respondeat superior.
The matter was tried before a jury in November 1979. Plaintiffs introduced into evidence the videotaped deposition of Dr. Bernard Glass, a specialist in neurosurgery and neurology who practices medicine in California, in an attempt to demonstrate defendants' negligent care and treatment of Robert....
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