Poulin v. Zartman

• Decision Date: 12 November 1975
• Docket Number: 2127,Nos. 2120,s. 2120
• Citation: 542 P.2d 251
• Parties: Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee. Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee.
• Court: Alaska Supreme Court

Page 251

542 P.2d 251

Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee.

Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee.

Nos. 2120, 2127.

Supreme Court of Alaska.

Nov. 12, 1975.

Theodore R. Dunn and Warren W. Matthews, Jr. of Matthews, Dunn & Baily, Anchorage, James A. Parrish of Parrish Law Office, Fairbanks, for appellant and cross-appellee.

James J. Delaney and Robert L. Eastaugh of Delaney, Wiles, Moore, Hayes & Reitman, Anchorage, for appellee and cross-appellant.

Before RABINOWITZ, C. J., CONNOR, J., and STEWART, Superior Court Judge.

OPINION

CONNOR, Justice.

This appeal arises from a medical malpractice action. It raises issues concerning admissibility of evidence, standards of conduct by a physician, and the 'informed consent' doctrine.

A suit was brought by Wilfred Poulin on behalf of his infant daughter, Courtney Poulin, against Dr. Harvey Zartman. Poulin brought this action for damages alleging that Zartman improperly administered oxygen to Courtney, thereby causing her to become totally blind, and that Zartman's failure to properly treat jaundice caused severe brain damage in the child. Poulin also contended that Zartman administered treatment to Courtney without the informed consent of either of Courtney's parents.

After a trial in the Superior Court in which a jury verdict was rendered against him on August 25, 1973, Poulin moved alternatively for a judgment notwithstanding the verdict or a new trial. These motions were denied, and this appeal followed. Dr. Zartman has filed a cross-appeal claiming error in the denial of costs and attorneys' fees.

I. FACTS

Courtney Poulin was born at approximately 3:00 p. m. on February 9, 1968. She was a premature infant of about 28 weeks gestation. The baby was delivered by Dr. Claire A. Renn at the Anchorage Community Hospital. Dr. Renn summoned Dr. Harvey Zartman, the pediatrician then on duty, and Dr. Zartman saw Courtney for the first time at 3:30 p. m., one-half hour after her birth.

Dr. Zartman found that infant in severe respiratory distress and he diagnosed her condition as either 'hyaline membrane disease (HMD), or respiratory distress syndrome (RDS)'. ¹ There is disagreement as to whether Dr. Zartman properly diagnosed HMD, but all witnesses agreed that Courtney Poulin was suffering respiratory distress and did require oxygen. Dr. Zartman ordered supplemental oxygen at '5 to 8 liters per minute or higher if necessary to keep pink.' The propriety of ordering oxygen to be administered in this manner was one of the central issues in the trial.

Courtney continued to receive supplements of oxygen until 12:00 p. m. February 16, 1968. Oxygen-weaning commenced on the afternoon of February 15, 1968, and all oxygen supplements were ended at noon on February 16, 1968. Courtney Poulin subsequently became totally blind. She is suffering from retrolental fibroplasia (RLF). It is undisputed that excessive oxygen results in a higher incidence of RLF. However, there are studies indicating that RLF can occur in premature babies who have had virtually no oxygen supplement at all.

At 7:00 a. m. February 11, 1968, the baby was noted to be jaundiced and this condition continued in varying degrees through at least February 17, 1968. Jaundice may indicate the presence of 'indirect bilirubin' in the blood. Indirect bilirubin can cause brain damage. Nevertheless, Dr. Zartman did not regard a bilirubin test as necessary. Today, Courtney Poulin is severely mentally retarded. Plaintiff contended at trial that the retardation resulted from a disease known as kernicterus, which is caused by elevated bilirubin in the blood. Plaintiff further contended that a 'simple, non dangerous' bilirubin test could have detected the condition and thus led to alleviating it. However, plaintiff acknowledges that testimony concerning the cause of Courtney's mental retardation was in conflict.

Mrs. Poulin, Courtney's mother, was not contacted by Dr. Zartman until February 19, 1968. While Courtney was in the hospital Dr. Zartman did talk with Mr. Poulin, but there is conflict as to whether he discussed the risks attendant to oxygen therapy with the father.

Following Courtney's discharge from the hospital it was noticed that she was not developing properly. She was subsequently diagnosed as being totally blind, resulting from retrolental fibroplasia (RLF), and severely mentally retarded. The Poulins then brought suit against Dr. Zartman.

Oxygen Administration

One of the key issues at trial concerned whether Dr. Zartman ordered an excessive amount of oxygen for Courtney, thereby causing retrolental fibroplasia (RLF) which resulted in her total blindness. It will be recalled that excessive oxygen has been shown to cause an increased incidence of RLF. In 1968, in Anchorage, Alaska, precise gauges for monitoring the amount of oxygen in the blood were not available. Thus, less accurate means of averting excessive oxygen had to be relied upon.

An undisputed index of insufficient oxygen in the blood is the condition known as cyanosis. One who is cyanotic, i. e., oxygen deficient, becomes blue in the mucus membranes, lips, and skin. This can vary in degree with the first indicators being a 'duskiness' in appearance. Apparently at the time that oxygen administration was commenced, Courtney was cyanotic. The last reported observation of cyanosis was on February 12, 1968, at 8:30 a. m. Oxygen treatment continued to 12:00 p. m. on February 16, 1968.

Plaintiff offered substantial expert testimony ² endorsing a system of oxygen-minimization referred to as 'titration'. Essentially this method reduces the oxygen concentration to a point at which a baby begins to turn cyanotic. The level then is raised slightly above that point and periodically the process is repeated. Defendant countered with his own experts, ³ all of whom felt that Dr. Zartman's methodology was adequate. ⁴ Zartman's methodology apparently consisted of 'working down' from a concentration that was wholly adequate to avoid cyanosis, as opposed to 'working up' from a concentration that was insufficient to prevent cyanosis, i. e., titration.

Poulin produced evidence from the American Academy of Pediatrics which stated that atmospheric oxygen concentration ⁵ 'should be kept at the lowest possible level that will relieve the symptoms for which it is given. If possible, it should not be over 40 percent.' The nurses' records reflect that from 8:30 a. m. on February 12, 1968, to 5:00 p. m. on February 15, 1968, the oxygen concentration was almost always above, and never below, 40 percent. During this 3 1/2 day period, the liter flow of 4 was reached at 6:30 p. m. on February 13, 1968. It remained at that flow level for the next 43 1/2 hours, during which time oxygen concentration was at least 40 percent. ⁶

Dr. Zartman offers three explanations for this high concentration of oxygen. He states that he ordered the baby to be 'kept pink' and that if it is not cyanotic it is pink and there is 'no gray in-between.' This, of course, begs the question of how much oxygen concentration is the least necessary to keep the baby pink.

The doctor also stresses that throughout this period the baby was experiencing distress known as apnea, a condition of temporary cessation of breathing. Continuous oxygen therapy often will relieve the severity of apnea and many of the experts acknowledged that oxygen therapy is appropriate when apnea is present. Dr. Zartman's brief on appeal does not attempt to justify the quantity of oxygen by the presence of apnea, but only the continuous use of oxygen for nearly 3 1/2 days following the last recorded incident of cyanosis.

Finally, Dr. Zartman points to testimony suggesting that the machine monitoring the air concentrations (a myra oxygen analyzer) was inaccurate. He particularly stresses that due to the construction of the incubator at 4 liters it was 'almost impossible' to have a 40 percent concentration of oxygen. ⁷ Poulin's response is that the oxygen analyzer was never tested and the nurses' notes are in fact the only record available as to what the concentration actually was.

In summary, oxygen can be a dangerous substance, and excessive doses have been associated with a blindness-inducing disease known as retrolental fibroplasia (RLF). Courtney Poulin is blind as the result of RLF. Poulin's expert tesitifed result of RLF. Poulin's experts testified excessive oxygen in 1968 was titration, i. e., 'testing up' from a cyanotic state until the condition is relieved. Dr. Zartman's experts supported his method of monitoring excessive oxygen, i. e., relieve the symptom of deficiency, in this case cyanosis, then periodically 'test down'. For at least a 40-hour period, Courtney Poulin received high concentrations of oxygen without any testing, up or down.

Jaundice, Bilirubin, and Retardation

As previously noted, Courtney experienced continuing jaundice from at least February 11, 1968, to February 17, 1968. Jaundice may indicate elevated bilirubin in the blood. Elevated bilirubin can lead to kernicterus which is a disease causing brain damage. Bilirubin can be detected by a blood test. No such test was ordered. Today, Courtney Poulin suffers from severe mental retardation.

Dr. Zartman's defense is two-hold in nature. First, he claims that the degree of jaundice observed was insufficient to warrant a bilirubin test. In support of this contention he notes that two other doctors saw the infant and also failed to order the test. Furthermore, head nurse Gill testified that the degree of jaundice, apparently a common symptom in newborn infants, was not unusual.

Zartman's second defense is lack of proof of causation. He solicited expert testimony suggesting that Courtney's symptoms are not reflective of brain damage resulting from excessive bilirubin, but instead suggest mental deficiencies resulting from inadequate oxygen. Poulin himself acknowledges that causation was in dispute.

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