Holloway v. Hauver

Orth, C. J., delivered the opinion of the Court. On 30 May 1973 TERESA L. HOLLOWAY, appellant, instituted a tort action in the Circuit Court for Washington County against RICHARD V. HAUVER, M.D. and HAGERSTOWN SURGICAL CLINIC, Drs. CRAIG and MARSH, P.A., appellees. The declaration demanded judgment against appellees in the sum of $250,000 for injuries suffered by appellant caused by the negligence of appellees.

It alleged: “For that on or about October 23, 1971, the Plaintiff was a patient of the Defendants, licensed medical doctors in the State of Maryland, and the Plaintiff also was a patient admitted to the Wáshington County Hospital, in Hagerstown, Maryland, and while in the operating room of said hospital, under the care of the Defendants, the Plaintiff sustained first, second and third degree burns on her body when the merthiolate and alcohol, with which the Plaintiff has been prepared, was ignited by the negligent use of a hot cautery, which resulted in a flash blaze, said blaze and injuries being caused by the negligence and carelessness of the Defendants and by the failure of the Defendants to exercise the standard care to which the Plaintiff was entitled under the circumstances, and as a proximate result of the injuries aforesaid, the Plaintiff sustained serious, ³⁰⁵ painful, disabling and permanent injuries to body and mind, that she has in the past and will in the future incur necessary medical, hospital expenses and related expenses, the exact amount of which is not wholly ascertainable at this time. As a further and proximate result of the Defendants negligence aforesaid, she has in the past and will in the future suffer with pain and mental anguish, has in the past and will in the future be unable to engage in her every day activities and functions as before the accident and was in the past and will in the future be compelled to lose time from her employment and the income therefrom, the full extent of which is not wholly determinable at this time.” Appellant prayed a trial by jury. Appellees filed a general issue plea on 19 June 1973. On 14 August, upon suggestion for removal, Md. Rule 542, the case was transferred to the Circuit Court for Allegany County.

On 15 November trial was had before a jury. At the close of the evidence offered by appellant, appellees moved for a directed verdict in their favor. The motion was granted. Appellant noted an appeal.

When the record came before us we noted that no judgment had been entered. We dismissed the appeal and remanded the case for the entry of a judgment in accord with the verdict directed. We said: “The case was fully briefed and argued before us on the merits. If, upon the entry of a judgment below, a timely appeal is noted, we shall be favorably disposed, upon request of appellant and appellees, to accept the briefs previously filed, and consider the arguments as previously made, so that the appeal may be determined forthwith with the least possible additional expense.” Holloway v. Hauver, No. 927, September Term, 1973, unreported, filed 20 June 1974.

On 24 June judgment was entered in favor of appellees and against appellant. Appellant noted an appeal. Upon petition of the parties we issued an order that the appeal be submitted on the briefs previously filed and the arguments previously made. ³⁰⁶ The Grant of a Directed Verdict There is only one question presented. As framed by appellant and concurred in by appellees, it is whether the trial judge properly granted appellees’ motion for a directed verdict.

The Evidence We give a compendium of the evidence offered by appellant. There were admitted by agreement a copy of a summary of a report of The Washington County Hospital Association signed by Hauver with respect to appellant under her then name of Teresa Lynn Ridenour, and a summary of a similar report signed by R. S. Oakley, M.D. The former, dated 5 November 1971 and dictated 3 November 1971, begins: “This 27 year old female was admitted to the hospital on 10/31/71 for hymenotomy, complaining of redness and itching around the vulva and has been treated recently for vulvitis with some effect and was found to have almost completely intact hymen.” Under the heading “COURSE”, there is set out: “On the day of admission, the patient had hymenotomy. This operation was complicated by burns to the buttocks resulting from a flash blaze started by the hot cautery as it was used to cut the hymen, the blaze being caused by ignition of the merthiolate containing alcohol with which the patient had been prepped. The blaze was immediately extinguished, and after the operation, Furacin dressings were applied to the burns, which consisted of two areas of burns, one on each buttock and each measuring about 5 inches square.

The patient’s hospitalization was for one week, and she was discharged 10/29/71 receiving daily dressings of Furacin to the burns. She is to be followed in the office.” The “FINAL DIAGNOSIS” was “INTACT HYMEN”. “COMPLICATIONS” were stated to be “First and second ³⁰⁷ degree burns of buttocks.” The report of Dr. Oakley, also dated 5 January 1972, contains the following: “The patient was a 23 year old white female who underwent hymenotomy under general anesthesia on 10/21/71 and during the procedure encurred a slash burn which was caused by the cautery arch igniting the Merthiolate prep. As a consequence, the patient sustained a severe second degree burn of the posterior buttock area. Postoperatively the wounds were treated temporarily in the hospital and subsequent to this were managed as an outpatient.

However, her wounds failed to heal and she continued to complain of persistent drainage and pain in the buttock area. She was subsequently then admitted to Washington County Hospital for further care to the burned areas.” 1 It discloses that she was again admitted to the hospital on 6 November 1971 and gradually improved under treatment. On 22 November, however, she underwent a skin graft operation because a significant percentage of the burned area “continued to manifest itself as third degree.” She was discharged on the eighth postoperative day. The “Final Diagnosis” was “Second and third degree burns on the buttocks.” Appellant testified regarding the circumstances leading to the hymenotomy.

With respect to the operation itself, she remembered only that she was given the anesthesia and woke up in the recovery room. “I remember Dr. Hauver walking up and telling me that I was going to have to be admitted, that there had been an accident. At this point, he didn’t explain exactly what.” Later Hauver talked to her in the presence of her parents. He said “Just that I had been burned. That there had been an accident, and that I had been burned.” She was in the hospital from Saturday until Friday.

The transcript reads: ³⁰⁸ “Q. During that time, did Dr. Hauver ever explain to you what happened that caused your burns? A. Not in detail. Q. Did you ever receive any information from any other persons as to what happened or caused the burns? A. No. Not until I read the report in your office that day, the hospital records.

I must clear that. Just that there had been an accident, and that there was a fire of some sort or explosion. Actually I remember even asking a nurse. And, of course, I imagine she isn’t authorized to talk about it, and she just said something, you know, that there had been a little explosion or fire under me or something.

And that’s all I knew.” Subsequently Hauver made arrangements for Dr. Oakley to treat her and withdrew from the case. 2 She told about being re-admitted to the hospital, the treatment given her and her ultimate discharge, what further treatment she underwent and how the injuries affected her course of life. Dr. Richard Oakley, stipulated to be “a surgeon and competent as an expert to testify in medicine and particularly in the field of surgery”, first saw appellant on 1 November 1971. “[S]he had suffered second, possibly deep second degree burns, and uncertainty as to whether they were indeed third degree burns. But there was at that time evidence of infection and involvement of the wound by bacteria process.” His diagnosis when he saw her again on 4 November was second and third degree burns. He admitted her to the hospital and treated her there.

He recounted the subsequent history of the case. With reference to the cause of the burns, he said that he had discussed the matter “in an informal fashion” with Hauver, that he had read a summary ³⁰⁹ report filed by Hauver, and that he had also filed a summary report, which was a combination of appellant’s history obtained by him “in conjunction with previous records that would be contained in the hospital chart.” He read the summary aloud. He said that Merthiolate prep is an “alcohol preparation”, and that it was inflammable. He had used the Bovie machine “very extensively”.

He described it as an electronic device “that works on an electromagnetic wave principle that produces waves that are manufactured by the machine to produce coagulation of tissues.” It can be used to cauterize and “as with a scalpel to cut and cauterize simultaneously.” The witness gave a “qualified yes” to the question “In your use of the Bovie machine, have you ever noticed that when you approach tissue with the scalpel and that the power is on that there will be an electric arc between the scalpel and the tissue? ” Oakley identified a manual for the operation of a Bovie machine. He said that Merthiolate is commonly used with the electro-cautery machine. He was asked: “Within the standard of medical practice in Washington County, what precautions should be taken when using an electro-cautery machine and a Merthiolate prep which contains alcohol? ” He replied: “I think the standard for Hagerstown would be the same as the standard for anywhere, would be incidentally unrelated to the use of the Bovie or not. It would be either allowing the Merthiolate to dry or drying it with a sterile towel.” He was asked the purpose in allowing it to dry. “The purpose basically with the use of any alcohol prep in this fashion is so that there will not be any excessive irritation to the patient’s skin because of the alcohol.* * * Secondarily, the chance that because it is a flammable liquid that there could be ignition of it.” Dr. Aubrey Haines, a plastic and reconstructive surgeon, testified that he was familiar with the Bovie electro-surgical unit.

He explained how it is used: “Well the machine is usually on a stand in close proximity to the operating table. There is a power cord that runs from some point in the machine to a plug in the wall. When the machine is turned on ³¹⁰ there are usually two wires leading out of the machine, one which goes to an active electrode and one which goes to a ground plate. The ground plate is usually placed under the patient at some convenient point where a wide surface area is in contact, and the machine is then operated by a foot pedal so that when the foot pedal is turned on current will flow from the active electrode to whatever part of the patient’s body or to an instrument on this part of the patient’s body to pass current through this area for the coagulation of tissues.” He was shown a document which he identified as a copy of an operator’s reference manual for a model “CSV” Bovie machine.

He had seen a similar manual at the Washington County Hospital. Hauver was called by appellant. He gave his occupation as general surgeon, retired as of 1 January 1972. On 23 October 1971, he performed a hymenotomy on appellant.

He “prepped” her with a Merthiolate material containing 50% alcohol. It was his decision to use it. He was aware that any 50% alcohol solution can be flammable under certain conditions, “when it’s in direct contact with fire, either a spark or a lighted match or something.” He used a Bovie machine for the operation. He described the procedure followed in the operation: “The patient is wheeled into the operating room on a wheeled stretcher and transferred over — well actually the patient transfers herself.

She’s not yet asleep. — onto the operating room table. And the anesthetist then administers the anesthesia-. And after that has taken effect for the operation of the type we did, the patient after anesthesia is moved down on the table towards the foot of the table so that the buttocks will come to the point in the table where the lower part breaks down. The foot of the table breaks down on hinges.

So that the buttocks are flush with the end of — that is down the end of the table. ³¹¹ And at that point if the anesthetist says it’s all right we go ahead with the preparation, in this case tincture of Merthiolate solution as an antiseptic preparation of the skin and the area of the operative field. In this case the operative field consists of the external opening of the vagina. In this case it wasn’t open. The vulva, external genitalia, the pubis, the insides of the thighs, and the area down by the rectum.

Painted on with a sponge held in a forceps. And it’s used quite liberally and with some slight scrubbing effect at times, particularly in the crevices of the skin and the folds of the thighs, and then it’s allowed to dry. Following this, the — a drape is placed over the patient. In this case the drape is a — it covers the legs, which I failed to mention before the preparation the patient’s legs and thighs are placed in stirrups, so that the thighs are pretty much in an upright position.

The legs are down this way in stirrups. There are metal stirrup holders on each side that hold the legs up. And there’s a drape made to fit over both legs and cover the lower abdomen, the thighs, and it has a small rectangular opening in the center which exposes the operative field. In this case the opening of the vagina and an inch or two around the orifice of the vagina.

All the skin is then, except for that, is covered. This cover lays against the skin around the orifice of the vagina. Either then or before the drape is put on, usually the bladder is emptied with a catheter. And then in a case like this there is no nurse assistant.

The surgeon hands the active electrode, the wire and electrode to a nurse who place it into the machine. And you make sure the sponge and everything else is ready on the table and you’re ready for surgery. Then the machine . . . One other I forgot to mention, the plate that Dr. Haines spoke of, the ³¹² ground plate, which is a metal plate about ten to fifteen inches or so, is laid under the buttocks. [Reference was made to photographs] This is the plate at the bottom here, this light . . .

It’s a metal, thin metal steel plate I believe. And to the side of that you hook the wire which goes back to the machine which Dr. Haines spoke of. You have one wire going to the active electrode and one from that ground plate back to the machine to complete the cycle. That has been placed under before the drape has been put on.

Then you’re ready if everything, the anesthesia and everything is all right you’re ready to proceed with the surgery. In this case the active electrode was a very small thin blade which is used for cutting, not for coagulation but for