Alimchandani v. Goings

Liss, J., delivered the opinion of the Court. Alexander Pope, in his “Moral Essays,” Epistle III, to Allen Lord Bathurst, begins a poem in which he explores the effect ³⁵⁴ of avarice on mankind by posing the question, “Who shall decide when doctors disagree, and soundest Causists doubt, like you and me?” 1 We here supply the answer — not the judge, but the jury. This case arises out of a five count declaration charging the appellant, Sundri Alimchandani (hereinafter Dr. Alim) and the Maryland General Hospital with medical malpractice. 2 The first count, brought by the estate of the decedent, Willie Goings, sought damages for his wrongful death and pain and suffering; the second through the fifth counts sought recovery of damages for his surviving wife, Alice L. Goings, and his three surviving daughters, Janet, Theresa, and Patricia. The case was submitted to the jury which returned verdicts in favor of the appellees under the various counts totaling more than a half-million dollars.

It is from the judgments entered on these verdicts that this appeal is filed. The decedent was a healthy, 28-year-old construction worker who entered Maryland General Hospital on February 24, 1975 for a routine tonsillectomy. The operation was performed the following morning by a Dr. Stitchel, who described the procedure as uneventful. The appellant was the attending anesthesiologist.

The hospital chart shows that the anesthesia took effect at 8:35 A.M. and lasted until 9:45 A.M., at which time the decedent was removed to the recovery room. There was conflicting testimony as to whether the decedent was conscious, semi-conscious, or unconscious at the time of his removal to the recovery room. Prior to being transported from the operating room, the decedent was placed on a stretcher in a supine position and the endotracheal tube, which is used to deliver oxygen to a surgical patient, was removed. The decedent was delivered to the recovery room by Dr. Alim, who, after completing the anesthesia chart and checking his vital signs, left the decedent in the care of the recovery room personnel.

At approximately 10 A.M. the decedent was discovered by a recovery room nurse in a near ³⁵⁵ sitting position with his head drooped over and his eyes closed. The nurse correctly concluded that the patient was in the throes of a cardio-respiratory arrest and summoned the other two recovery room nurses. After checking and finding minimal evidence of the patient’s vital signs, the nurses attempted to deliver oxygen to the decedent’s lungs by the use of a device consisting of a face mask and bag, known as an “ambu” bag. In the meantime, the hospital’s emergency resuscitation team was summoned and succeeded in reviving the patient, but not until the temporary deprivation of oxygen to the brain had caused extensive brain damage.

The patient remained in a coma for 12 days and then succumbed. Appellant presents the following two issues for determination in this appeal: I. Did the trial court err in instructing the jury that if it found that the decedent was entrusted to the recovery room staff, unconscious, without an artificial airway, and in a supine position then the appellant was negligent as a matter of law, when there was testimony from three expert witnesses to the contrary?

II

Did the trial court err in instructing the jury that it could award damages for conscious pain and suffering from the time of decedent’s respiratory arrest until his death 12 days later when all evidence showed that the decedent was unconscious throughout that period? I. At the trial, appellees called Barnett A. Greene, M.D., of New York City,, who qualified as an expert in anesthesiology. Based on his examination of the hospital records, Dr. Greene testified that the decedent was in general good health prior to the operation and gave his conclusions as to the chronology of events following the tonsillectomy. He stated that when the patient was placed in the care of the recovery room nurse he was in an unconscious state with his head elevated and with no endotracheal tube or artificial airway in place.

He testified that this treatment involved three major deviations from what he perceived to be the prevailing standard of post-operative care in Baltimore City or a similar community ³⁵⁶ and that these deviations were the cause of the decedent’s death. They were: (1) as the patient was unconscious, he should not have been extubated in the operating room; i.e., the endotracheal tube then in place should have been permitted to remain; (2) the decedent should not have been placed in a supine position but should have been placed on his side for the reason that while in a supine position the decedent’s body fluids were permitted to enter the trachea and these fluids would have been discharged from the mouth if he had been placed on his side; and (3) the anesthesiologist, appellant, should have remained with the unconscious, extubated patient until such time as he had regained a sufficient degree of responsiveness to “respond to [his] own name with a purposeful response,” and she should not have left the patient to the care of the recovery room nurses until such time. The appellant, in her own testimony, admitted that the post-operative patient is primarily the responsibility of the anesthesiologist. Appellant’s expert witnesses sharply disagreed with Dr. Greene’s exposition of the prevailing standard of post-operative anesthesiological care required by an adult tonsillectomy patient.

They also differed with his conclusion from the hospital records that the decedent was unconscious at the time he left the operating room. Dr. Alim testified in her own behalf that after the operation was completed the patient was semi-conscious and the endotracheal tube was, therefore, no longer necessary. Sheppard Kaplow, M.D., a qualified expert in anesthesiology, concluded from the hospital records that the patient was semi-conscious at the time of extubation and that the accepted standards of anesthesiological practice, under these circumstances, permitted extubation in the operating room, the positioning of the patient on his back and, once vital signs were taken, the entrusting of the patient to the recovery room personnel. Under cross-examination, the appellant was asked, “If ... when the patient was brought in the recovery room, he was unconscious and ... [was] left on his back, would that not ³⁵⁷ constitute a breach of accepted anesthesia post-surgical care?” She responded in the negative.

Dr. Kaplow, under cross-examination, was asked whether he “would permit an adult tonsil patient in an unconscious state to be left on his back, either elevated or not elevated, without an endotracheal tube in place____?” He answered in the affirmative. In re-direct examination, Dr. Kaplow testified as follows: “Q. Doctor, so it is clear, Mr. Ellin, I believe, asked you if, in your opinion, it is a deviation from accepted standards to leave an unconscious patient supine in the recovery room with a nurse. What was your answer? A. I said it was not a deviation from the custom of practice. “Q. Why?

Why do you leave an unconscious patient in the recovery room with the nurse, even an unconscious patient? A. Because the nurses, depending on the other complicating factors that the patient may have — unconsciousness itself is not an indication that you have to stay with the patient until the patient is conscious. These nurses who are there are trained, particularly if the patient has a normal airway, without an oral tracheal tube, as referred to here, or a pharyngeal tube, but is breathing without any artificial means, it is within the limits of the nurse’s competence, a nurse accepted and trained to work in the recovery room, to watch that patient’s airway. For a number of reasons, this patient may not need or cannot tolerate any artificial airway.

If the patient is having problems with a normal airway, then an anesthesiologist might decide to stay until the patient can demonstrate further competence, further ability of the patient to maintain his own airway. But this again is a question of judgment, a question of level of consciousness.” Appellant also presented as an expert witness, Louis Fritz, ³⁵⁸ M.D., Chief of Anesthesiology at Maryland General Hospital, who on cross-examination stated: “Q. Right. Now, if he were unconscious, Doctor, the position of choice, in view of the fact that there was no longer a tube in his airway to keep it open, would have been the semi-prone position, on his side, somewhat as shown to this jury a dozen times throughout this trial? Let me show it to you, so you know what I am talking about.

A. I’m familiar with the position that you are indicating, if that is what you are talking about. “Q. There is a drawing here of a model on her side, with her head down and a diagram showing the flow of any secretions out of the mouth and onto the table. A. I am familiar with the position that you are indicating. “Q. You certainly agree that that is a more desirable position with an unconscious patient, is it? A. I do not agree. “Q. You do not agree with that? A. Right.” This, then, was the state of the testimony when all of the witnesses had been heard and the trial judge was ready to instruct the jury.

In the course of those instructions, the court advised the jury as follows: “Now then, I instruct you, as a matter of law, that if you find that Dr. Alim left the patient in the recovery room while the patient was unconscious and without an artificial airway and in a supine position, when the patient was unable to respond to his name with purposeful response, then that would constitute negligence and her departure from the recovery room would be premature and your verdict should be in favor of the Plaintiffs against the Defendant Alim. On the other hand, if the evidence does not establish these facts but, rather, that that patient was semi-conscious, was able to respond to verbal commands, was breathing spontaneously, and ³⁵⁹ that then it would be proper to place the patient in a supine position or, at least, it would not be improper, it would not be a deviation from the standards of care and one would not need an artificial airway and, hence, the leaving of the patient in the recovery room by Dr. Alim under those circumstances would not constitute negligence. Thus any later act of negligence by the personnel in the recovery room, such as elevating the patient’s head, of which the Doctor was not aware, would not constitute negligence in and