Rose v. Hakim

• Decision Date: 10 November 1971
• Docket Number: Civ. A. No. 2132-68.
• Citation: 335 F. Supp. 1221
• Parties: George W. ROSE, Jr., an infant, by and through his father and next friend, George W. Rose and George W. Rose, Plaintiffs, v. Arcadius H. HAKIM and Weston Bruner, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

335 F. Supp. 1221

George W. ROSE, Jr., an infant, by and through his father and next friend, George W. Rose and George W. Rose, Plaintiffs, v. Arcadius H. HAKIM and Weston Bruner, Jr., et al., Defendants.

Civ. A. No. 2132-68.

United States District Court, District of Columbia.

November 10, 1971.

COPYRIGHT MATERIAL OMITTED

J. Joseph Barse, Washington, D. C., for plaintiffs.

Denver H. Graham, Washington, D. C., for Arcadius H. Hakim.

J. Harry Welch, Washington, D. C., for Associated Anesthesiologists.

John L. Laskey, Diane M. Sullivan, Washington, D. C., for Washington Hospital Center.

OPINION

WILLIAM B. JONES, District Judge.

By an amended complaint this medical malpractice action was brought by plaintiffs against Arcadius H. Hakim, an ear, nose and throat surgeon (Hakim), a number of physicians practicing medicine in partnership as anesthesiologists (Associated Anesthesiologists) and the Washington Hospital Center (Hospital). The plaintiffs are George W. Rose, Jr. (infant plaintiff) and his father George W. Rose (father plaintiff) who brought the action for and on behalf of the infant plaintiff as well as in his own behalf.

Before trial plaintiffs settled with and dismissed Hakim and Associated Anesthesiologists from the action. Plaintiffs thereafter proceeded to trial by the Court and jury of their action against Hospital. This resulted in jury verdicts in favor of the plaintiffs. Infant plaintiff was awarded $265,000.00 and father plaintiff was awarded $29,777.25.¹

In their pleadings Hakim and Associated Anesthesiologists each cross-claimed against Hospital for indemnification or contribution.² Hospital cross-claimed against Hakim and Associated Anesthesiologists. In each instance the cross-claim was for indemnification. At pretrial it was stipulated by the parties that the cross-claims would be tried by the Court without a jury. At the commencement of the trial Hospital dismissed its cross-claim against Hakim.

The cross-claims were tried by the Court without the jury contemporaneously with the jury trial of plaintiffs' action against the Hospital. The jury was excused from the courtroom when evidence relating solely to the cross-claims was being received by the Court. At no time was the jury informed of either the amount or the fact that Hakim and Associated Anesthesiologists had settled with plaintiffs. Thus the Court has before it the evidence received out of the presence of the jury and the evidence received in the jury case.³ From that evidence the Court finds the facts to be as follows.

Hakim is a private physician and surgeon who specializes in treating conditions affecting the ear, nose and throat. The father plaintiff employed Hakim to care for the infant plaintiff whose tonsils and adenoids were infected. For the purpose of surgically removing the tonsils and adenoids and correcting an inflamed condition of the middle ear, Hakim arranged for the infant plaintiff to be admitted to the Washington Hospital Center. On February 21, 1968, infant plaintiff, then a five year old boy, was admitted to the Hospital as Hakim's private patient. Before surgery Hospital personnel performed the required tests and made the appropriate physical examination of the infant plaintiff. The tests and examination disclosed no reason for not undertaking the planned surgery.

Infant plaintiff was taken to Hospital's operating room where a medically acceptable general anesthetic was administered to him by Dr. Ho, a fellow in the Hospital's department of anesthesiology and an employee of Associated Anesthesiologists. The latter as a partnership had a contract with the Hospital to perform anesthesia services for the Washington Hospital Center. At about 1:25 P.M. on February 21, 1968, Hakim commenced the surgical procedures for the removal of infant plaintiff's tonsils and adenoids. In addition to the infant plaintiff, Hakim and Dr. Ho, there were present in the operating room instrument or scrub nurse Lewis and circulating nurse Bowman. Lewis and Bowman were employees of Hospital.

To perform the surgery Hakim placed himself at the head of the infant plaintiff and Dr. Ho stood at the side of the infant plaintiff. Several times during the surgery Hakim told Dr. Ho he needed more exposure, that is greater opportunity to see into the small oral cavity of the infant plaintiff. This needed exposure was made available to the surgeon. About three minutes before the completion of the tonsillectomy and adenoidectomy Hakim noticed the blood of infant plaintiff getting dark. He called upon the anesthesiologist, Dr. Ho, to administer oxygen. The blood lightened in color and Hakim continued with the surgery. Again the blood darkened and again Hakim requested Dr. Ho to administer more oxygen. The blood again lightened in color. Hakim saw the blood lightening and scrub nurse Lewis observed infant plaintiff's lips return to normal from a blue color. During this period of darkening and lightening in the color, the blood continued to spurt from capillary vessels in infant plaintiff's oral cavity which evidenced the fact that the heart was functioning.

As Hakim completed the tonsillectomy and adenoidectomy he positioned the infant plaintiff's head to perform a myringotomy, the surgical procedure to correct the ear involvement. At that time he asked circulating nurse Bowman to check the infant plaintiff's pulse. She did so and reported that he had no pulse. External cardiac pressure, pure oxygen by positive pressure squeeze bag and various drugs were immediately administered to resuscitate infant plaintiff. At the same time Hospital's emergency signal—"code blue"—was given. In response to that signal a number of other physicians went immediately to the operating room. Additional drugs were administered and a cardiac monitor was attached to infant plaintiff. Two and one-half minutes after nurse Bowman reported there was no pulse the infant plaintiff's heart beat resumed.

At 2:30 P.M. on February 21, 1968, following the return of infant plaintiff's heart beat, he was transferred to the recovery room. There Hakim ordered intravenous fluids and medication to drip at the rate of 50cc per hour, a reduction and maintenance of body temperature at 90° Fahrenheit through hypothermia, 12.5 grams of Manitol intravenously in a single dose, 22.3 milligrams of sodium bicarbonate and 600,000 units of Wycolline to be given daily. He also ordered that infant plaintiff's vital signs be checked, a blood chemistry examination be made, a record of urine output be maintained, an electroencephalogram be made and a neurological consultation be had. Later he gave an additional order for 10 milligrams of Hykenone to be given intravenously. All of this was in accord with proper medical practice.

Two hours after the cardiac arrest and in the recovery room infant plaintiff was examined in consultation by Dr. Hakim, Dr. Bruner, one of the Associated Anesthesiologists' partners, Dr. Hugo Rizzoli, the head of the Department of Neurosurgery at the Hospital, and Dr. Cooney and Dr. Koulouris, neurosurgery residents employed by Hospital. After examining infant plaintiff Dr. Rizzoli stated in his consultation note that it was his impression that infant plaintiff had experienced cerebral anoxia but that he believed he would recover. He recommended that hypothermia be continued. At trial Dr. Rizzoli explained his note "will recover" meant infant plaintiff would survive in terms of life and death.

Sometime in the late afternoon or early evening of February 21, 1968, Hakim ordered infant plaintiff transferred to the intensive care unit of the Hospital. The exact time of the transfer was to be determined on the basis of infant plaintiff's condition by Dr. Shibuya, the anesthesiologist on duty the night of February 21-22, 1968, and who was with the infant plaintiff in the recovery room. Shibuya was one of the Associated Anesthesiologists' partners.

At 10:30 P.M. on February 21, 1968, Dr. Shibuya transferred infant plaintiff to the intensive care unit. At that time Shibuya was of the opinion that infant plaintiff was making a good recovery. Shibuya found him becoming more reactive and alert, breathing on his own and in a satisfactory physical condition. In Shibuya's opinion infant plaintiff would recover from the cardiac arrest in the operating room.

In anticipation of the transfer of infant plaintiff to the intensive care unit a nurse from that unit went to the recovery room prior to 10:30 P.M. to become informed of infant plaintiff's condition and to make arrangements for proper equipment and supplies for his care in the unit. But when infant plaintiff arrived in the unit the only resuscitator assigned to the intensive care unit either wasn't there, or if it was there it was broken and inoperative. Moreover, the unit did not have a glass thermometer that would register lower than 94° Fahrenheit temperature, although there were such thermometers elsewhere in the Hospital. The unit nurses knew or in the exercise of ordinary care should have known that Hakim's written orders called for maintaining infant plaintiff's temperature at 90° Fahrenheit. They also knew that the telethermometer, which was attached to the hypothermia machine (an apparatus to lower body temperature) was not always accurate. Furthermore, the intensive care unit either did not have, when needed for infant plaintiff, a heart monitor, with a defibrillator on it to shock the heart if it started to fail or to beat abnormally, or if it did have such a monitor it was not attached to the infant plaintiff.

When infant plaintiff arrived in the intensive care unit a nurse, an employee of the Hospital, was assigned to exclusively care for him. When the nursing staff changed at 11:00 P.M. February 21, 1968, this exclusive nursing arrangement was continued with another Hospital nurse being assigned. While the latter was a graduate nurse, she was not a registered nurse since she had passed only two of the...