Thompson v. Lillehei, 16216

• Decision Date: 28 December 1959
• Docket Number: 16217.,No. 16216,16216
• Citation: 273 F.2d 376
• Parties: Dan F. THOMPSON, Appellant, v. C. Walton LILLEHEI et al., Appellees. Geraldine B. THOMPSON, Appellant, v. C. Walton LILLEHEI et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

273 F.2d 376 (1959)

Dan F. THOMPSON, Appellant, v. C. Walton LILLEHEI et al., Appellees.

Geraldine B. THOMPSON, Appellant, v. C. Walton LILLEHEI et al., Appellees.

Nos. 16216, 16217.

United States Court of Appeals Eighth Circuit.

December 28, 1959.

Harry H. Peterson, Minneapolis, Minn., for appellants, Edward R. Kenneally, Minneapolis, Minn., on the brief.

O. C. Adamson, II, Minneapolis, Minn., for appellee Lillehei.

Frank X. Cronan, Minneapolis, Minn., for appellee Joseph Buckley.

Frank Janes, Minneapolis, Minn., for appellee Richard Varco.

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

Before GARDNER, VOGEL and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

This diversity litigation, filled with human drama, has its genesis in an attempt to perform open heart surgery upon Leslie Ann Thompson, the minor daughter of Dan F. Thompson and Geraldine B. Thompson¹ who were the unsuccessful plaintiffs in the trial court.

These actions were commenced against the University of Minnesota, its Board of Regents and six medical doctors, who are or were members of the faculty of the University of Minnesota Medical School. Mr. Thompson seeks to recover $300,000 and Mrs. Thompson $250,000, as compensation for damages allegedly sustained as the result of injuries to Mrs. Thompson, claimed to be the result of negligence in the performance of medical procedures. Prior to the trial, the actions were dismissed by the trial court as to the University of Minnesota and the Regents of the University, each being a state governmental body and immune from suit. While the record before us does not so indicate, it is apparent that these cases were consolidated for trial. At the close of plaintiffs' case, the court granted the motions of defendants Earl Schultz and James Matthews for directed verdicts, and they passed out of the picture. The issues were submitted to the jury as to defendants C. Walton Lillehei, Richard Varco, Herbert Warden and Joseph Buckley, their motions for directed verdicts offered at the close of the whole case having been denied. The jury was unable to agree upon a verdict and was discharged. Thereafter, the four defendants filed motions for judgment notwithstanding the failure of the jury to agree, Rule 50(b), Rules of Civil Procedure, 28 U.S.C.A., and in due time, the trial judge granted the motions and entered judgments for the defendants, holding (1) there was no evidence of actual negligence on the part of the four defendants against whom the cause was submitted; (2) the defendants are not vicariously liable for the alleged negligence of someone in the operating room; (3) no proof of proximate causation. See Thompson v. Lillehei, D.C.Minn., 164 F.Supp. 716.

In testing the legal sufficiency of the evidence to make a submissible case, which obviously is the basic question confronting us, we are required to view and consider all of the evidence from the standpoint most favorable to plaintiffs, and give to them the advantage of every fair and reasonable intendment that the evidence can justify. With this firmly entrenched principle in mind, we give further attention to the factual situation.

At the time of the occurrence giving rise to this litigation, Leslie Ann was eight years old. She was afflicted with a congenital defect in her heart, known medically as a ventricular septal defect, described in a layman's language as a hole or opening between the two pumping chambers of the heart. Prior to 1954, due to inability to operate within the heart, such children were doomed to an early death. However, after much experimenting on animals, members of the faculty of the Medical School of Minnesota at the University of Minnesota Hospital, were able to perfect what is known as "control cross-circulation," and on March 26, 1954, successfully repaired a congenital defect in the heart of a little girl by means of this procedure. This cross-circulation technique requires a donor, whose heart and lungs are used to pump and purify the patient's blood, thus effecting a reciprocal exchange of blood between the patient and donor. The cross-circulation is established through tubes which extend from large veins and arteries in the donor to appropriate veins and arteries in the subject under surgery. This method of giving life to the patient makes it possible to stop the function of the patient's heart and lungs while the operation is in progress.

A few months after the first successful operation, in May or June, 1954, Mr. Thompson, who was a Lieutenant Colonel in the United States Air Force, first contacted Dr. Lillehei and made arrangements, principally through Dr. Lillehei, for an operation upon Leslie Ann to correct her congenital heart defect. This contemplated operation upon Leslie Ann was to be the seventeenth of its kind.² Mrs. Thompson, the mother, was to serve as the donor. The operation was scheduled for October 5, 1954; at about 7:20 a. m. that day Leslie Ann was anesthetized by defendant Joseph Buckley, M. D., an anesthesiologist, and associate professor in the University Medical School. Drs. Lillehei and Varco who were to perform the actual operation upon Leslie Ann appeared a short time later. Operative procedures upon Leslie Ann preparatory to the actual heart surgery took approximately two and one-half hours. At about 8:20 a. m. Mrs. Thompson was anesthetized in another room, presumably by a Dr. Uri, who is not a defendant in this action. This procedure encompassed not only the administration of anesthesia but attachment of intravenous equipment or apparatus, referred to as "I.V." to the donor. The I.V. included bottles containing solution, filters, and needles for insertion into veins. All of this was completed when Mrs. Thompson was wheeled into the operating room. By this time Drs. Lillehei and Varco had been operating on Leslie Ann for more than an hour.

Other participants were Dr. Ludwig Uri, who was the anesthesiologist in charge of Mrs. Thompson; Herbert Warden, M. D. and Morley Cohen, M. D. were the surgeons who made the cannulations upon the donor, a procedure which consisted of making a small incision in the groin of Mrs. Thompson and inserting catheters in the femoral artery and the saphenous vein; Earl Schultz, M. D., a Fellow in Anesthesiology, was to operate certain machines after the cross-circulation between the donor and the patient had been established. Thus, defendants Drs. Lillehei, Varco and Buckley, the anesthesiologist, were stationed at the table of Leslie Ann and were directing their efforts entirely to the operative procedures upon her. Defendant Dr. Warden, together with Drs. Uri and Cohen were concerned with Mrs. Thompson, and performing the operative procedures and other functions above mentioned. In addition to these persons, it appears there were various internes and nurses stationed about the area, there being 15 to 20 persons in the operating room on that morning.

About an hour after Mrs. Thompson had been brought into the operating room, with her table being placed about six feet from the table occupied by Leslie Ann, an unusual incident occurred. At this time the cannulations on Mrs. Thompson had been completed but the cross-circulation hook-up had not been established. Dr. Uri, the anesthesiologist at Mrs. Thompson's table, stated rather loudly that he could not get the blood pressure and pulse of Mrs. Thompson, the donor; immediately Dr. Warden removed the stopper from the catheter which had already been inserted in the femoral artery and observed that the blood was deeply cyanotic. Immediate steps were taken to restore the blood pressure and pulse of Mrs. Thompson, and in a short time this was accomplished. Because of this incident, cross-circulation between Mrs. Thompson and Leslie Ann was not effected and the operation on Leslie Ann was abandoned. It was subsequently determined that Mrs. Thompson sustained a brain lesion which caused a partial paralysis of her body and other injuries, all of which are serious, permanent and partially disabling. Other pertinent facts will be discussed in disposing of the contentions before us.

From the inception of this litigation plaintiffs' position has been that the brain lesion sustained by Mrs. Thompson was produced by and resulted from an air embolism, which the defendants negligently permitted to enter Mrs. Thompson's circulatory system. Thus, in Mrs. Thompson's complaint it was first charged:

"that the defendants so negligently, carelessly and unskillfully connected plaintiff\'s blood circulatory system with that of said Leslie Ann Thompson that air was permitted to enter plaintiff\'s blood stream through an intravenous drip inserted in plaintiff\'s arm by defendants in performing said operation with the consequence that it found its way to plaintiff\'s brain and there inflicted the damages hereinafter alleged."

When the case came on for trial, plaintiffs' counsel took a different approach as to the manner in which air entered Mrs. Thompson's system. In his opening statement counsel stated:

"Before the hookup was actually completed, and after the daughter had been prepared for it and the mother partially prepared for it, air was injected into it, forcibly injected into the mother\'s blood stream which went up past the heart and into her brain and caused a brain injury * * *. The evidence will show that this air was forcibly injected into the mother carelessly and negligently and that\'s the basis for our claim of negligence here."

Before getting into the crux of the case, negligence, we shall dispose of conflicting contentions regarding the cause of Mrs. Thompson's present unfortunate condition. Whereas plaintiffs attribute her brain injury to an air embolism, defendants stoutly urge that it was impossible for air to pass through the tiny capillaries in the lungs and into the brain. On this issue, plaintiffs must prevail. Colonel Thompson testified that during an interview with Dr. Lillehei prior to the...