Thompson v. Lillehei

• Decision Date: 03 September 1958
• Docket Number: Civ. No. 5538,5539.
• Parties: Dan S. THOMPSON, Plaintiff, v. C. Walton LILLEHEI, Richard Varco, Herbert Warden, Earl Schultz, Joseph Buckley, James Matthews, University of Minnesota, and The Regents of the University of Minnesota, Defendants. Geraldine B. THOMPSON, Plaintiff, v. C. Walton LILLEHEI et al., Defendants.
• Court: U.S. District Court — District of Minnesota

164 F. Supp. 716

Dan S. THOMPSON, Plaintiff, v. C. Walton LILLEHEI, Richard Varco, Herbert Warden, Earl Schultz, Joseph Buckley, James Matthews, University of Minnesota, and The Regents of the University of Minnesota, Defendants.

Geraldine B. THOMPSON, Plaintiff, v. C. Walton LILLEHEI et al., Defendants.

Civ. Nos. 5538, 5539.

United States District Court D. Minnesota, Fourth Division.

September 3, 1958.

COPYRIGHT MATERIAL OMITTED

Harry H. Peterson, Edward Kenneally, Minneapolis, Minn., for plaintiffs.

William B. Randall, St. Paul, Minn., Harold J. Carroll, Minneapolis, Minn., for defendant Buckley.

Hyman Edelman, Minneapolis, Minn., for defendant Warden.

Frank Janes, Minneapolis, Minn., for defendant Varco.

B. B. Markham, Minneapolis, Minn., for defendant Lillehei.

DEVITT, District Judge.

This is an action for malpractice against the University of Minnesota, its Board of Regents, and six medical doctors, all members or former members of the University of Minnesota Medical School faculty. The plaintiff, Geraldine Thompson, suffered injuries to her person allegedly as the result of negligence in the performance of certain medical procedures. She and her husband, the other plaintiff, sue to recover damages. There is diversity of citizenship between the parties.

In recent years members of the University of Minnesota Medical School faculty have specialized in the performance of so-called "open heart" surgery, principally upon small children born with ventricular septal defects. This defect is described in layman's language as a hole between the two pumping chambers of the heart. Until recently such a birth defect was viewed as being fatal. These doctors have established a "controlled cross circulation" procedure for successfully operating upon such defects. This method contemplates that the patient will be temporarily sustained by a "donor", who occupies an adjoining table during the operation, and who, through a system of connecting tubes, furnishes heart and lung facilities to the patient while the heart is operated upon to cure the defect.

The defendants Lillehei and Varco, both surgeons, have established reputations as experts in this field. They have performed many such operations and have conducted lectures and written professional papers explanatory of the procedure. The operation here involved was to be the 17th of its kind.

The plaintiffs' 8-year-old daughter, Leslie Ann, was born with a ventricular septal defect. Plaintiffs arranged, principally through defendant Lillehei, for the performance of a controlled cross circulation operation upon her. The opertion was started on the morning of October 5, 1954. The patient's mother, Mrs. Geraldine Thompson, was to serve as the donor. Medical procedures preparatory to the actual heart operation took several hours. The patient and the donor were placed on adjoining operating tables about four feet apart. Both were anesthetized. All of the defendants here named were in the operating room. Others, mostly medical students and nurses, were also in the room. Drs. Lillehei and Varco were at the patient's operating table in the capacity of surgeons. Dr. Buckley was there as an anesthesiologist.¹ Dr. Warden was at the donor's operating table as a surgeon. One Dr. X, not a defendant, was at this table as an anesthesiologist.

Prior to the contemplated commencement of the actual heart surgery on the girl, and before the cross joinder with the mother had been effected, an inordinate event took place at the donor's table. It was reported by those present there that it was impossible to detect the donor's heartbeat or blood pressure. There was evidence that a bottle of glucose and water hanging overhead, from which a tube entered her veins, had become empty. Such a device, called an "i. v." (intravenous), is commonly used in surgical procedures. First aid methods were employed. She was restored. An operating diagnosis of air embolism was made. This is described as bubbles of air getting into the veins. The contemplated operation on Leslie Ann was abandoned. Allegedly as a result of the air embolism, the donor, Mrs. Thompson, suffered a brain injury. She was hospitalized at the University of Minnesota Hospital for five months. She has been partially incapacitated since. There was evidence that Mrs. Thompson has undergone substantial physical and mental change, and that her injuries will be permanent.

The plaintiffs' theory is that the defendants were negligent in the manner in which they conducted the surgical procedures, specifically in permitting the glucose and water container to become empty and thus to cause an air embolism to get into the blood stream, and that this negligence was the cause of the injuries suffered. Defendants deny negligence and deny any causal connection between the events transpiring in the operating room and the brain injury.

Prior to trial, the Court dismissed the lawsuit as to the University of Minnesota and the Regents of the University of Minnesota. Plaintiffs had no objections to this. Each is a state governmental body, immune from suit.

The Court granted motions for directed verdicts as to the defendants Schultz and Matthews upon the close of plaintiffs' case. They are medical doctors, but were essentially bystanders to the events.

The issues went to the jury as to the defendants Lillehei, Varco, Warden and Buckley, after the Court had denied their motions for directed verdicts at the close of the testimony. Denial of such motions is in accordance with recommended policy and is a common procedure in the Federal Courts. See Montgomery Ward & Co. v. Duncan, 1941, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Fratta v. Grace Lines, 2 Cir., 1943, 139 F.2d 743; Craighead v. Missouri Pac. Transp. Co., 8 Cir., 1952, 195 F.2d 652. The jury was unable to agree upon a verdict and was discharged.

For consideration now are the motions of these four defendant-doctors for orders directing the entry of judgment in their favor notwithstanding the failure of the jury to agree, as is authorized by Rule 50(b) of the Rules of Civil Procedure, 28 U.S.C.A. In effect, I am asked again to rule on the motions for directed verdicts.

The Court has power to enter judgment for the defendants notwithstanding the inability of the jury to agree, if there is an absence of any substantial evidence to prove liability and damages. I may not weigh the evidence. I may not grant the motion if a jury question is present. The issue is a legal one as to whether the plaintiffs, under all the evidence and reasonable inferences to be drawn therefrom, considered in the light most favorable to the plaintiffs, have made out a case as to each defendant. Schad v. Twentieth Century-Fox Film Corp., 3 Cir., 1943, 136 F.2d 991; see 2 Barron & Holtzoff, Fed. Prac. & Proc. § 1079, and cases cited.

I have no hesitation in concluding that the plaintiffs have presented no evidence of actual negligence on the part of any of of the defendants. Each performed his assigned duties in accordance with accepted medical standards. None of them omitted to do that which they should have done. Briefly examining the conduct of each, as reflected in the evidence, it appears that:

Dr. Lillehei was the surgeon at the patient's table. He performed no surgical procedure upon the donor. He was solely occupied with the preparatory operation upon the patient. Of necessity his back was to the donor's table. There was no showing that he failed in any responsibility following the emergency when it became impossible to detect the donor's pulse, or at any other time.

Dr. Varco served as an assistant surgeon to Dr. Lillehei at the patient's table. He had no responsibility in connection with the surgical procedures or anesthetics on the donor.

Dr. Buckley was the anesthesiologist at the patient's table. He had no responsibility in connection with any procedures at the donor's table. Dr. Warden was assigned as surgeon at the donor's table. There was no evidence that he negligently performed or failed to discharge any of his responsibilities. One Dr. X, not a defendant in this lawsuit, was anesthesiologist at this table and, it would appear, was solely responsible for the administration of anesthetics and the operation of the "i. v." of glucose and water which allegedly became empty. There was no evidence indicating that this was Dr. Warden's duty.

It thus appears that there is no evidence of any negligence on the part of these four defendants. But the plaintiffs argue that each of these defendants is vicariously liable for the alleged negligence of somebody in the operating room who did something wrong to cause the air embolism which, it is said, brought about the brain injury. This argument is pressed only as to Dr. Lillehei. Although asserted as to the others, there is no plausible ground for considering it as to them.

In support of their theory as to the vicarious liability of Lillehei, plaintiffs point to evidence which shows that plaintiff, Dan S. Thompson, made first contact with Lillehei concerning the proposed operation on his daughter, and had several subsequent visits with Lillehei about it; correspondence between the two was exchanged; they arranged a date for the operation, and Lillehei allegedly assured Thompson that there was very little danger involved to the donor and that precautions would be taken to prevent an air embolism. Later Lillehei visited Mrs. Thompson in the hospital on several occasions and communicated with her husband as to the diagnosis of air embolism, and recommended needful physical therapy.

From this, plaintiffs urge that Lillehei was the surgeon in charge of the operation, exercised supervision over others participating in it, or should have done so, and is responsible for their conduct and liable for their acts of negligence, citing principally St. Paul-Mercury Indemnity Co. v. St. Joseph's Hospital, 1942, 212 Minn. 558, 4 N.W.2d 637.

Lillehei denies that he was in...