Thompson on Behalf of Jessee v. Sun City Community Hosp., Inc., 1

• Decision Date: 29 March 1983
• Docket Number: CA-CIV,No. 1,1
• Citation: 688 P.2d 647,142 Ariz. 1
• Parties: Ada Carol THOMPSON, on Behalf of herself and as next friend of Michael JESSEE, a minor child, Plaintiffs-Appellants, v. SUN CITY COMMUNITY HOSPITAL, INCORPORATED, an Arizona corporation, d/b/a Walter O. Boswell Memorial Hospital; Jon R. Hillegas, M.D.; Steven J. Lipsky, M.D.; Emergency Room Physicians, Inc., Defendants-Appellees. 5442.
• Court: Arizona Court of Appeals

Page 647

688 P.2d 647

142 Ariz. 1

Ada Carol THOMPSON, on Behalf of herself and as next friend of Michael JESSEE, a minor child, Plaintiffs-Appellants, v. SUN CITY COMMUNITY HOSPITAL, INCORPORATED, an Arizona corporation, d/b/a Walter O. Boswell Memorial Hospital; Jon R. Hillegas, M.D.; Steven J. Lipsky, M.D.; Emergency Room Physicians, Inc., Defendants-Appellees.

No. 1 CA-CIV 5442.

Court of Appeals of Arizona Division 1, Department A.

March 29, 1983.

Robert Stephan, Jr., P.C. by Robert Stephan, Jr., Phoenix, for plaintiffs-appellants.

Weyl, Guyer, MacBan & Olson by Kenneth C. Weyl, Thomas G. Bakker, Phoenix, for defendant-appellee Boswell Memorial Hosp.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Harding B. Cure, Larry L. Smith, Phoenix, for defendants-appellees Lipsky and Emergency Room Physicians, Inc.

Snell & Wilmer by John J. Bouma, Robert J. Gibson, Phoenix, for defendant-appellee Jon R. Hillegas, M.D.

OPINION

KLEINSCHMIDT, Judge.

This case arises out of the transfer of an injured boy from the emergency room of Boswell Memorial Hospital to Maricopa County Hospital. The boy was transferred because he was financially ineligible for admission to Boswell. He brought this action through his mother acting as his next friend to recover compensatory and punitive damages for injuries which he alleged were aggravated by the failure to give prompt treatment at Boswell. His mother sued in her own right to recover for negligent infliction of emotional distress. The defendants were Boswell Memorial Hospital; Dr. Steven J. Lipsky, the emergency room physician; Dr. Jon R. Hillegas, a vascular surgeon consulted by Dr. Lipsky, and Dr. Alvina Sabanas, an orthopedic surgeon who saw the boy at Boswell.

The case was tried to a jury. The case against Dr. Sabanas was dismissed by stipulation and the trial judge directed a verdict in favor of Dr. Hillegas at the close of plaintiff's evidence. The court also directed a verdict as to the mother's claim for negligent infliction of emotional distress. The jury found against the plaintiff in favor of the defendants Boswell Hospital and Dr. Lipsky. The plaintiff appeals from the orders directing verdicts and from the verdicts of the jury. The evidence was in sharp dispute on many points. Except as to the directed verdict in favor of the appellee Hillegas, we view it, as we must, in the light most favorable to the parties in whose favor judgments were rendered below. Paul Schnoonover v. Ram Construction, Inc., 129 Ariz. 204, 630 P.2d 27 (1981).

Thirteen year old Michael Jessee, the son of appellant Ada Carol Thompson, was pinned against a wall by an automobile which had fallen off a jack. The boy was immediately taken by ambulance to the emergency room at Boswell Hospital and arrived at approximately 8:30 p.m. Dr. Steven Lipsky, the physician on duty in the emergency room, determined that Michael's vital signs were not alarming and began a complete examination. Dr. Lipsky found that Michael's airway was uninjured, the boy's breathing sounded normal, and circulation to his brain was intact. At this time Dr. Lipsky ruled out any "truly life-threatening points." He then began a more careful examination of the head, chest, and abdomen, which all seemed to be functioning normally.

Dr. Lipsky then examined Michael's extremities, noting that he had a dressing on his left thigh and that the leg was internally rotated 90 degrees below the dressing and above the knee. The lower part of the boy's foot was pale and the toes were a dusky color, cool and clammy. Michael could not move his toes on the left foot nor could he feel Dr. Lipsky touch them. There were no pulses in the leg. Dr. Lipsky removed the dressing and observed a fourteen-inch laceration running from the upper thigh to just above the knee. Bone was visible at the lower end of the laceration in the region of the knee. The doctor was surprised to note that there was no bleeding from this injury.

After finishing the examination, Dr. Lipsky gave orders for lab work, i.v.'s, antibiotics, oxygen, insertion of a catheter, application of a splint to stabilize the fracture, and he requested that a vascular surgeon and an orthopedic surgeon be called. Michael responded well to the fluids administered, an indication that he had been suffering from the most mild form of hypovolemic shock when he arrived and that situation had been corrected. Dr. Lipsky testified that in his opinion Michael became stable after the fluids were administered and remained stable with minimal additional fluid therapy.

Dr. Lipsky consulted by telephone with Dr. Alvina Sabanas, the hospital's orthopedic surgeon on call. She told Dr. Lipsky that he should call a vascular surgeon and Dr. Sabanas arrived at the emergency room ten minutes later. She familiarized herself with Michael's record and then proceeded to examine the leg. The boy could not feel her touch nor could he move his ankle or toes. Dr. Sabanas then told Dr. Lipsky that Michael definitely needed a vascular surgeon and she conducted a complete physical examination from the head down. She examined the leg wound and noted that there was no bleeding. The X rays indicated that there were no chest injuries but that there were undisplaced fractures of the lower pelvic bones and a fracture of the large bone of the left thigh.

After Dr. Sabanas arrived Dr. Lipsky spoke by telephone with Dr. Jon Hillegas, a vascular surgeon, and Dr. Hillegas said that the leg would keep for what vascular surgeons call the "golden period" of at least six to eight hours. By this time Dr. Lipsky had been told that Michael might not be eligible for admission to Boswell for financial reasons and Dr. Lipsky mentioned this to Dr. Hillegas and asked him if he thought Michael could be transferred. Dr. Hillegas testified that he told Dr. Lipsky that from a vascular standpoint Michael was transferable. Dr. Hillegas was between 30 or 40 minutes away from Boswell. He said that he was never requested to come and that the patient could get to county hospital faster than he could attend the patient.

The administrative policy of Boswell Hospital regarding admission of emergency patients was as follows:

Any patient requiring emergency treatment including admission as an inpatient will be admitted to the hospital if failure to admit would, in the opinion of the Emergency Room physician or that of a member of the Active Medical Staff of this Hospital, permanently jeopardize the life and/or health of the patient.

Dr. Lipsky testified that his role in the transfer decision, as emergency room physician, after a determination that a patient was not financially eligible for admission was to decide whether and when the patient was medically transferable.

Mrs. Thompson, Michael's mother, testified that she and her husband did not have insurance which would cover Michael's medical bills. Her husband, however, testified that they did have such insurance but on the evening of the injury he had told the hospital that they did not. The owner of the automobile offered his insurance for Michael's care but it was automobile liability insurance, which was not acceptable for medical care at Boswell. A representative of the hospital administration decided that Michael was not financially eligible for admission.

Dr. Lipsky then determined, with the concurrence of Dr. Sabanas and Dr. Hillegas, that Michael was "medically transferable" ¹ and he informed Michael's parents of his intention to transfer. Mr. Thompson testified that his wife became extremely upset and begged the doctor not to send Michael to county hospital. He saw that "it [her behavior] was almost a complete breakdown." Others who were present in the emergency room testified to Mrs. Thompson's hysterical reaction upon learning from Dr. Lipsky that Michael would be transferred.

Michael left Boswell Memorial Hospital by ambulance at 10:21 p.m. and arrived at county hospital at 10:45 p.m. When he was placed in the ambulance for the trip he was resting comfortably and was alert, lucid, and complaining of some pain. The paramedic testified that he noticed no change in Michael's condition en route to county hospital although the boy's blood pressure dropped slightly and consequently the i.v. flow was increased to correct that problem. Michael was stable throughout the trip and he was not in shock.

At 1:00 a.m. Michael underwent surgery at county hospital and Dr. Alan Ansel testified that the surgical team spent two hours exploring the abdomen and pelvic region. At 3:00 a.m. the surgeons began exploring Michael's left leg and found that the interior of the femoral artery had been torn, forming a flap which obstructed the flow of blood through the artery to the leg. The large bone in Michael's thigh was fractured and there was nerve injury as well. Dr. Ansel testified that viewing the procedure in retrospect, the surgeons at county could have worked on the leg first, or had two teams working simultaneously, one on the abdomen and the other on the leg.

Michael Jessee recovered from the accident but suffers serious residual effects which, according to testimony of Dr. Kent Pomeroy, a specialist in physical medicine and rehabilitation, were caused by the delay in restoring blood flow to the left leg.

In the appellant's view the permanent injury was caused by the delay occasioned by the decision to transfer Michael to county hospital. Appellee Boswell Hospital pointed instead to delays in treating the leg which resulted from judgmental decisions made by the surgical team at county hospital. Boswell further claimed that Dr. Ansel from county hospital testified that Michael's injuries would have resulted in significant residual injury regardless of the qualify of care he received. Additionally, Dr. Eli Krigsten, an orthopedic surgeon, and Dr. Sabanas both testified that the treatment Michael received at county was a significant factor in producing his disability.

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