Scaria v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 10 April 1975
• Docket Number: No. 311,311
• Parties: K. S. SCARIA et al., Appellants, v. ST. PAUL FIRE & MARINE INS. CO., et al., Respondents. (1974).
• Court: Wisconsin Supreme Court

Page 647

227 N.W.2d 647

68 Wis.2d 1

K. S. SCARIA et al., Appellants, v. ST. PAUL FIRE & MARINE INS. CO., et al., Respondents.

No. 311 (1974).

Supreme Court of Wisconsin.

April 10, 1975.

The plaintiffs' action seeks recovery for personal injuries and alleges malpractice on the part of a doctor and the hospital. The jury found both the doctor and hospital negligent but additionally found that negligence was not a cause of the plaintiff-K. S. Scaria's disabilities as to both the doctor and the hospital. The malpractice claim involves both care and treatment and a claimed lack of informed consent.

The plaintiff, K. S. Scaria, has become a paraplegic as a result of a percutaneous femoral aortogram, a radiological procedure whereby a dye is injected into the aorta through a catheter inserted in the groin so that the arteries leading to the kidneys can be visualized by the use of X rays. The procedure was performed by Dr. David G. Kamper at the Columbia Hospital in Milwaukee.

The complaint named as defendants Dr. Kamper, Dr. George R. Hughes, Dr. Robert W. Byrne, Columbia Hospital, The Medical Protective Company, and St. Paul Fire & Marine Insurance Company. Drs. Byrne and hughes and The Medical Protective Company were subsequently dismissed from the action prior to submission of the case to the jury.

The plaintiff, K. S. Scaria, came to this country in 1968 from India, where he had received a Ph.D. degree in physiology, and began teaching at a small, now defunct, college in Waukesha and thereafter was employed in a laboratory in the Medical College of Wisconsin. His wife and two children came to the United States a year later.

On August 28, 1970, Mr. Scaria, who was forty-one years old at the time, saw Dr. Anson J. Buttles, an allergist, because of an attack of hay fever. In the course of examining Scaria, Dr. Buttles discovered his blood pressure to be 220/140. Dr. Buttles prescribed some medication for the hay fever and next saw him on September 10, 1970, at which time his blood pressure was still 220/140. Normal blood pressure for a man of Scaria's age was 120/80 to 140/90. Dr. Buttles diagnosed the condition as severe hypertension which could shorten his life expectancy, and referred Scaria to Dr. Hughes, a specialist in internal medicine and cardiology.

Scaria went to see Dr. Hughes on September 10th, the same day he had been referred by Dr. Buttles. Dr. Hughes took a history and learned that Scaria had had high blood pressure for at least five years and had been treating it medicinally himself. Dr. Hughes conducted an extensive physical examination and concluded that Scaria was severely hypertensive, that such condition could significantly shorten his life span, that it was not safe for him to go untreated for a period of weeks, and that his urgent condition required hospitalization within a few days. Dr. Hughes recommended, and Scaria agreed to enter the hospital for hypertensive testing.

Scaria entered Columbia Hospital on September 12, 1970. Several tests were conducted, including an intravenous pyelogram (IVP), which, like the aortogram, involves the injection of a radiopaque dye, in this case Renovist, so that internal organs become visible on X rays. The test results were normal. Because the hypertension persisted, Dr. Hughes recommended that an aortogram be performed by Dr. Kamper, also a specialist in internal medicine and cardiology.

Dr. Kamper first met Scaria in his hospital room on September 16th, the evening before the procedure was performed. He took a medical history from the patient and conducted a physical examination. Dr. Kamper then explained to Scaria how the catheter would be introduced into the femoral aretery through an incision in the groin, how the radiopaque dye would be injected, and how the X rays would be taken. He told Scaria that when the dye was injected the patient would experience a sensation of warmth and be uncomfortable for a few minutes. The doctor also explained that the purpose of the tests was to determine whether there was a narrowing of the arteries leading to the kidneys that might be causing the high blood pressure. Dr. Kamper testified that he informed Scaria that if the aortogram revealed a narrowing of the renal arteries, surgery could alleviate his high blood pressure. Scaria, however, denies that he was so advised.

There is considerable dispute in the testimony as to what Dr. Kamper told Scaria with respect to the risks involved in the procedure. Scaria testified that on the evening of September 16th he was told by Dr. Mamper that in 'one in a thousand cases there will be a possibility of some complications, but that's not important.' The next morning at 7:30 a.m., according to Scaria, he said to the doctor, 'yesterday you told me that there is one in a thousand chance of some complications developing. Can you explain to me what it is?' Dr. Kamper replied that there was a possibility of a clot forming in the site of the injection. Scaria said, 'What will happen if a clot is formed?' Dr. Kamper replied, 'It can be easily removed.' The patient asked, 'Is that all?', to which Dr. Kamper responded, 'That's all.'

According to Dr. Kamper's version, on the evening of September 16th he informed Scaria that the risk of the procedure was less than that of an appendectomy and that the most common problem would be pain in the groin, that he could have a problem of bleeding, primarily into the skin near the puncture site, possibly developing into a hematoma or blood clot, that possibly a clot could develop in the vessel at the puncture site or an embolism could go peripherally into his leg, but that these complications could be handled surgically. Dr. Kamper also allegedly told Scaria that he could experience an allergic reaction to the dye but that because he had no history of allergies to drugs and because the same dye had been used in the IVP, such reaction was unlikely. He also told Scaria that the chances of a complication were less than one in a thousand. Dr. Kamper had no other conversation with Scaria concerning the risks involved and does not recall being asked, 'Is that all?' with respect to the enumerated risks, but admits the possibility.

Dr. Kamper testified that he was aware of other risks about which he did not inform Scaria, including the possibility of plaque traveling into a vein in the leg, a punctured artery, a pseudoaneurysm, a punctured aorta, an asthma-like condition, and adverse reactions to the dye. The consequences of these occurrences could possibly be death paralysis or loss of a limb. Dr. Kamper stated that although he did not mention the possibility of death, he assumed that Scaria realized that one of the conceivable risks of an appendectomy is death, and that since he compared the risks of the aortogram to those of an appendectomy, that Scaria was aware that death was an 'outside risk' of the aortogram. ¹

Scaria denied being informed that the risks were comparable to those involved in an appendectomy and claimed that he relied on Dr. Kamper's disclosure, and that if he had been apprised of all the possible complications he never would have consented to the procedure because he felt he could successfully control his high blood pressure, because he did not want to jeopardize his new job, and because he would have wanted to consult his brother, Dr. Johnson Zacharias, a physician in Michigan, prior to undergoing the procedure.

Later that evening Scaria signed a consent to operate form which was brought to his room, without explanation, by a hospital aide.

At 8:30 a.m., on the morning of September 17th, Scaria was taken to the radiology room of Columbia Hospital, was given a local anesthetic in the groin, and had the catheter inserted. Dr. Byrne, a staff radiologist, ran the injection machine at the direction of Dr. Kamper, who was in charge of the procedure. About five seconds after the injection of the dye and just prior to the last of the X rays being taken, Scaria experienced a severe pain and involuntary jerking of his legs. Scaria said, 'What is happening doctor?', to which Dr. Kamper replied, 'I don't know.'

Dr. Kamper testified that he immediately examined Scaria's lower extremities neurologically and found no abnormal reactions. Scaria denied that Dr. Kamper did so. The X rays revealed nothing abnormal. Dr. Kamper testified that he then wrote out his orders and reexamined Scaria. Dr. Kamper did not make any reference on the patient's chart to the jerking of the legs, which the doctor recognized as being related to some spinal reaction.

Dr. Kamper ordered that Scaria remain in bed for twenty-four hours, and further ordered that his blood pressure, pulse and right pedal pulse be checked every fifteen minutes for two hours, and then every hour for four hours.

Scaria returned to his room at about 10 a.m., and a nursing assistant took the required readings at 10:15, 10:30, 10:45, 11, 11:15 and 12 noon, 3 p.m., and 4 p.m. The 11:30, 11:45, 1:00 and 2:00 o'clock readings were apparently omitted. At about 11 a.m., Dr. Hughes visited Scaria, who complained of back pain and a funny feeling in his legs. At about 1:00 p.m., he complained to a nurse that his legs felt numb and that he was experiencing difficulty in moving them. The nurse contacted Dr. Kamper at about 1:15 p.m., and so informed him. Dr. Kamper told the nurse to have the resident physician examine Scaria and call him back. The resident examined Scaria at 1:45 and found that his legs were paralyzed. The resident called Dr. Kamper, told him the results of his examination and was told by Dr. Kamper to call in Dr. Robert E. Steiner, a neurosurgeon.

Dr. Steiner examined Scaria at 2:50 p.m., and diagnosed his condition as a transverse myelitis at the neurological level of D--10, meaning that Scaria was paralyzed from the waist down. At 4 p.m., he prescribed the administration of Decadron, a drug designed to reduce inflammation and swelling in the spinal...