Purcell v. Zimbelman, 2

• Decision Date: 20 July 1972
• Docket Number: No. 2,CA-CIV,2
• Citation: 18 Ariz.App. 75,500 P.2d 335
• Parties: Coy L. PURCELL and Tucson General Hospital, a corporation, Appellants, v. Thelma ZIMBELMAN, as Administratrix of the Estate of Henry Zimbelman, Deceased, Appellee. 1130.
• Court: Arizona Court of Appeals

Page 335

500 P.2d 335

18 Ariz.App. 75

Coy L. PURCELL and Tucson General Hospital, a corporation, Appellants, v. Thelma ZIMBELMAN, as Administratrix of the Estate of Henry Zimbelman, Deceased, Appellee.

No. 2 CA-CIV 1130.

Court of Appeals of Arizona, Division 2.

July 20, 1972.

Rehearing Denied Aug. 21, 1972.

Review Denied Oct. 10, 1972.

Lesher & Scruggs by D. Thompson Slutes, Tucson, for appellant Tucson General Hospital

Chandler, Tullar, Udall & Richmond, by Jack Redhair, Tucson, for appellant Coy L. Purcell.

Miller, Pitt & Feldman, by Stanley G. Feldman, Tucson, for appellee.

HOWARD, Judge.

This was an action for negligence against a hospital and several doctors. Prior to submission to the jury, all doctors were dismissed from the action except Dr. Purcell.

The jury returned a $150,000 verdict against both the hospital and Dr. Purcell. In this appeal the hospital presents the following questions:

'1. In order to prove a prima facie case, must the plaintiff prove that defendant's alleged negligence caused injury to the plaintiff? Specifically, in this case, was the plaintiff required to prove that the hospital's alleged negligence in failing to restrict or supervise Dr. Purcell after the Blickley and Hill cases resulted in the injury to the plaintiff?

2. Even though it may be proper to introduce into evidence the fact that a doctor has been sued on two previous occasions for malpractice on the issue of whether or not a hospital had notice of the doctor's possible incompetency, is it proper to advise the jury of every fact and circumstance of those lawsuits including the judgments rendered, and is it further proper to introduce into evidence two other lawsuits which have nothing to do with the disease or treatment at issue in the instant case, and in which there is no evidence that the doctor was guilty of professional negligence?

3. If a physician called to testify as an expert witness about the standard of practice of hospitals testifies that a hospital should restrict or supervise anyone who is proven guilty of malpractice on two occasions, and that his hospital does so, is it error to restrict the cross-examination of that witness so as to prevent the introduction of evidence of the fact that many doctors at that hospital have been adjudged guilty of negligence on more than two occasions, and have not been restricted in any manner?

4. May a medical treatise or article be used substantively, in light of the fact that the article is hearsay and there is no opportunity to cross-examine the writer?

5. When one of the primary issues in the trial is the location of an obstruction in the plaintiff's bowel, is it error to deny the defendants the right to call a radiologist as a witness who can testify as to the location of the obstruction by reading a barium enema x-ray in evidence?

6. Was it error to deny a motion for mistrial when a witness who was called to testify to alleged prior malpractice by Dr. Purcell inaccurately said, 'I won my case' (against Dr. Purcell) shortly before her counsel advised the jury that she had sued for '6 figures or more,' since such evidence would indicate the erroneous concept that Mrs. Hill, the witness, had sued Dr. Purcell and had successfully recovered '6 figures or more?'

7. What is the duty of a hospital toward its patients? Is it liable for the negligence of physicians who are not employees but are on its staff, and acting as staff members or committee members? Is a hospital liable for the failures of its Dr. Purcell presents the following questions for review:

surgical staff if it does not have reason to know that the surgical staff is not policing itself properly?'

'1. Where this appellant (Dr. Purcell) was charged with negligence in the management of a single patient, was the trial court in error in refusing to grant this appellant's motion for severance when the jury heard substantial testimony concerning four other units of litigation?

2. Where an entire hospital file is in evidence, did the court abuse its discretion in refusing to allow this defendant to call a witness to interpret the x-rays of the plaintiff?

3. Did the court commit error in the giving of plaintiff's instruction number 3, 'Error in Judgment' and the refusal to give defendant's instructions 6, 7 and 8?'

The facts considered in the light most favorable to support the verdict are as follows.

In April of 1969, Henry Zimbelman, 62 years of age, began having trouble with his bowels. He went to an osteopathic general surgeon who found an obstruction in the descending colon and admitted Zimbelman to Tucson General Hospital on April 14, 1969. Dr. Coy Purcell, a general surgeon, was asked to consult. Purcell's initial diagnosis was that Zimbelman had either cancer or diverticulitis ¹ of the lower large bowel. The trouble in Zimbelman's case was located above the peritoneal reflection. ² A barium enema x-ray report showed a complete obstruction in the area of the rectosigmoid junction. ³

Zimbelman was also given a sigmoidscopic examination by Purcell which consists of the insertion of a tube-like instrument called a sigmoidscope through the anus, up the rectum and into the colon. According to the testimony of Purcell the sigmoidscope passed 17 cm. from the outlet of the anus, which meant that it passed through the entire rectum, through the peritoneal reflection and into the rectosigmoid junction. This meant that the diseased portion of the bowel was located at least 17 cm. above the outlet of the anus.

On April 18, 1969, Purcell operated on Zimbelman and found a lesion running circularly around the rectosigmoid colon. Since Purcell could not tell by sight whether the lesion was cancerous he had a pathologist come into the operating room to look at the tissue. Although surgical standards require the surgeon to obtain a frozen section ⁴, relying on the pathologist who said the lesion looked like cancer, Purcell performed a 'cancer operation' called a 'Babcock-Bacon proctosigmoidectomy.' ⁵ This procedure was first described by and is named after Drs. Babcock and Bacon and is also called a 'pull-through' operation.

In doing the 'pull-through' Purcell first opened the abdomen and removed a piece of the bowel. The uppermost portion of what was removed was three inches above the point of the lesion. Purcell then took the end of the remaining bowel (called the proximal end) and 'pulled it through' the peritoneal reflection into the rectum, where he attached it at the anus. All of the bowel and rectum below the proximal end of the resection were thus discarded. Purcell did not first institute a temporary colostomy ⁶ because he did not think it was necessary Purcell testified that he could not have performed an anterior resection ⁷ on Zimbelman because the lesion was low down in a cylindrical pelvis, he had an inadequate cuff and had no room to work.

even though there had been contamination of this proximal end before he pulled it through into the rectal area and attached it to the anal outlet and even though he knew there had been an infectious process in the abdomen.

As a result of the 'pull-through' operation Zimbelman suffered from loss of sexual functions, loss of a kidney, a permanent colostomy and urinary problems.

Dr. Griess, the former chief of staff of St. Mary's Hospital in Tucson, testified that the choice of treatment on Zimbelman should have been an anterior resection and not a 'pull-through.' Dr. Clements testified that Purcell's failure to perform an anterior resection fell below the standard of the average competent bowel surgeon. The surgeons were relatively unanimous in the opinion that a 'pull-through' was an operation designed only for disease located below the peritoneal reflection and that where, as in Zimbelman's case, the problem is located above the peritoneal reflection, even if low-down, there is no indication for doing a 'pull-through.'

Dr. Clements testified that the inherent risks of a 'pull-through', especially one performed without a diverting colostomy, are high.

The court admitted testimony concerning two patients who were treated by Purcell prior to Zimbelman. Francis Blickley was treated by Purcell in 1965 for a condition which Purcell suspected of being either cancer or diverticulitis of the lower portion of the colon.

One year later Purcell treated a Hattie Hill for a condition which Purcell suspected of being either cancer or diverticulitis of the colon.

Both were cases of diverticulitis and in neither case did Purcell perform an anterior resection. ⁸ Blickley and Hill were later treated by Dr. Griess for complications resulting from Purcell's treatment. Dr. Griess performed an anterior resection on Blickley and was eventually able to restore bowel continuity.

Dr. Griess attempted to perform an anterior resection on Hattie Hill but he was unable to do so because of her prior treatment. As a result of Purcell's failure to perform an anterior resection on Mrs. Hill she was left with a permanent colostomy.

Both Hill and Blickley sued Purcell and the hospital. Two other patients of Dr. Purcell sued Purcell and the hospital. All suits occrred prior to Purcell's treatment of Zimbelman.

NEGLIGENCE OF THE HOSPITAL

Zimbelman's theory against the hospital was that the hospital had a duty to the public to allow the use of its facilities only by such independent staff doctors as are professionally competent and who treat their patients in full accordance with accepted and established medical practices, and that the hospital breached its duty when it failed to take any action against Purcell when it knew, or should have known, that he lacked the skill to treat the condition in question.

The hospital claimed that it could not be liable for Purcell's malpractice since he was an independent contractor and there was no reason to believe that a specific act of malpractice would take place.

The hospital has been accredited by the American Ostopathic Association....