Paul Construction Co. v. Powell

Markell, J., delivered the opinion of the Court. This is an appeal from a judgment on the verdict of a jury in a workmen’s compensation appeal, which reversed the decision of the State Industrial Accident Commission that the employee died on July 29, 1950 from a cause not connected with the accidental personal in ¹⁷¹ jury. The employer and Insurer appeal from the judgment and from refusal of a motion for a directed verdict and a motion for judgment n. o. v. On June 19, 1950 the employee was employed as a carpenter at work on construction of an apartment house in Salisbury. He slipped on a rock and hurt his back.

He was forty-seven years old. On June 19th and 20th Dr. Philip A. Insley, of Salisbury, treated him at his office, on June 20th sent him to the Peninsula General Hospital, where he remained until June 24th, and saw him again at his office on June 26th and sent him back to work. He returned to the same work for a day and then went to Seaford, Delaware, to work for the duPont Company. He had trouble with his back and on July 25th saw Dr. Briele, of Salisbury, and was sent to the Peninsula General Hospital.

The same day, Dr. William H. Fisher, an associate of Dr. Briele, saw him in the hospital. Dr. Fisher testified that “examination of him at that time revealed a typical picture for ruptured intervertebral disc * * *. We tried to keep him comfortable during the rest of that day and night with sedation. He required several doses of morphine for pain, the pain was so severe.

We felt there was no doubt about what he had and he should be seen by a neuro-surgeon rather promptly to relieve him of the disc, because we didn’t feel he would get any lasting relief other than continuously using morphine until he had operative relief of the ruptured disc. So Dr. Briele contacted Dr. Arnold [a neuro-surgeon] in Baltimore the morning of the 26th. * * * Dr. Arnold told him to send him up, which we did.” At the argument counsel for appellants said that the evidence that the ruptured disc was the result of the accident on June 19th was rather thin, but conceded that it was sufficient to go to the jury. We shall, therefore, assume that, as the jury found, the accident caused the ruptured disc. Dr. Fisher made a general physical examination of him to determine his general physical condition.

There was nothing to indicate excessive use of alcohol. If ¹⁷² he had been an excessive user of alcohol nothing in the examination would have revealed it. On the morning of July 25th the pain suddenly became much worse. The next morning he was sent by ambulance from Peninsula General Hospital, at Salisbury, to University Hospital, at Baltimore.

On July 28th at about 12:30 p.m., he was operated on by Dr. Arnold under a spinal anaesthetic. Dr. Arnold testified, “After a routine examination * * * — the usual routine for pre-operative evaluation, we felt that the operation should be done as soon as possible because of the severe pain and disability the patient had. * * * His general physical status was considered satisfactory for operation and, in fact, had it not been entirely satisfactory, we would have still gone ahead with the operation because of the severe pain the patient was having. The point is he was admitted as an emergency because of the severe pain, and the operation was facilitated as quickly as possible for that reason. * * * He was given the usual pre-operative medication for a spinal, and before the operation was started, the one thing that I clearly remember, while we were draping the patient and preparing the side for operation, the patient was more talkative and I called attention to this fact. We occasionally see that with patients who have had pre-operative medication, but that was unusual.

He was much more talkative, and this continued through the operation. He talked in a confused fashion, but we thought nothing more about it for the moment, because it does sometimes happen from the medication. Well, the operation was done quickly and without event. The whole procedure took a little less than an hour.

Nothing out of the ordinary was encountered, except the pathology was clear cut. He had a ruptured disc with severe nerve root compression. Nothing else was noticed during the procedure, except this continued talkativeness and mental confusion. I made rounds in the middle — the mid-afternoon, sometime between 3:30 and 4:30, I presume, and his general condition seemed quite satisfactory except ¹⁷³ that again he would go off into these temporary periods of mental confusion, seeing objects in the room.

He was a little active. He didn’t know where he was, and then he lapsed back into a reasonably clear mental state. His pulse, blood pressure and general physical condition at the moment was quite satisfactory, except for this mental state, and I discussed this with my associates, Dr. Crosby and Dr. Nichols, and wondered then if he might not be developing acute toxic hallucinosis. * * * After making rounds, I had to be out of the city the night and day following, so that was my last contact with the patient. He was under the direct supervision of Dr. Crosby [resident in neurological surgery] and Dr. Nichols [assistant resident] both experienced physicians.” Dr. Arnold then summarized what happened after he left, as later told him by Dr. Crosby and Dr. Nichols and testified to by them. “The mental state continued to be confused and got worse through the night.

He was quite restless, agitated, and began to see animals and small objects going through the room, and he was completely disoriented as to time and place. The usual treatment for this type of thing is to quiet the patient with sedatives such as paraldehyde and this was done. He was seen throughout the night at frequent intervals by one or both of these physicians, and his general condition, except for his mental state, was considered satisfactory until the early morning [about 4:30 a.m.], at which time he went into shock suddenly. His blood pressure dropped, there was a sweating, signs of shock, and he died very quickly [about 5:10 a.m.].

It was the opinion of those who saw him that he had a heart attack and died probably of a coronary occlusion. Now, in discussing the mental state of the patient and the cause for it * * * Dr. Crosby and Dr. Nichols discussed with some members of the family, or brought up the question as to whether Mr. Powell consumed unusual quantities of alcohol, because we were looking for a cause for the acute toxic hallucinosis, and with this particular type of mental ¹⁷⁴ blank, alcohol is the only one I know that will do it, and I am told some members of the family stated he was a chronic user of alcohol. In going over the entire record and evaluating the case from beginning to end, I can see no possible relationship between the operation and the man’s death. In over eight hundred disc operations which I have done, there have been two deaths.

Mr. Powell is one. The other one was a case of embolism which occurred on the fourth day. The patient was out of bed, making splendid progress and died with an embolism, but he was perfectly clear and rational all through. I have never seen this acute toxic mental state in relation to surgery except with Mr. Powell.

So, in eight hundred cases, if there were a parallel along the line, we would certainly see it in eight hundred cases, if the disc surgery would produce it. Furthermore, it is not produced by embolism or thrombosis, or things which may be secondarily related to operative procedure of this sort, and I further believe, had we not operated on him, Mr. Powell would still have had the acute toxic state which is known as delirium, termens, whether we operated or not. Of course, that is only an opinion which I can’t prove, but I think the stress and strain of his confused mental state, with his agitation, in a man who has — rather, who was hypertensive, moderately arterio-sclerotic and gave a history of exertional dyspnea, it would seem reasonable. The confused mental state and the agitation and physical effort which he exerted following operation, in a man who had a deficient vascular system, it is reasonable to assume his death was that of coronary occlusion.” An autopsy was requested, but the family would not permit it.

On cross-examination Dr. Arnold testified, “Q. You don’t know who made the statements in regard to his use of alcohol? A. Well, the names I do not have, and I think you can clarify that issue more directly with the persons involved. I think we would get a clearer picture of it. As long as we seemingly, from a medical point of view, had found the reason which we accepted ¹⁷⁵ as being the cause of this acute mental state, the three of us felt without question that was what it was, and when we had corroborating evidence from some members of the family that he did use alcohol to excess, there seemed to be no reasonable doubt but that that was the answer, but the details I did not go into, as to who said what.” Asked what are some of the causes of such hallucinations other than alcoholism, Dr. Arnold testified, “Coming on precipitately this way, I don’t know of any other, frankly: * * * Now bromides is more of a gradual process.

I have never seen it come on in such fashion. * * * I have never seen an acute toxic hallucinosis of this sort from morphine. * * * [After examining hopsital records] He received pantopon, grains of six, scopolamine, and a grain and a half of nembutal at 11:30. That was the premedication before operation. Q. What, if any, of those drugs could cause toxic hallucination? A. None of them in the dose administered. * * * Q. In other words, you believe there is a difference in the delirium caused by one toxic from that caused by another toxic?

A. Not entirely. They are very similar in aspects, but the general clinical cause is different, one from the other, the mode of onset. Q. Is it possible to determine from the type of hallucinations the man is suffering from which particular toxic was the cause of it? A. Well, one cannot, of course, say with absolute certainty because we have no way of measuring the cause.

We have no way of doing laboratory tests that would be absolutely conclusive, but experience is hard to beat. Q. Well, isn’t it true that the man could have suffered these hallucinations as a result of a particular sensitivity, we’ll say, to morphine or bella donna or sodium pentathol or any one of those toxics that sometimes cause hallucinations? A. In the doses which he received, no.” Dr. Arnold talked to him, examined him, before the operation. “Q. How long prior to the operation? A. I don’t recall, either the day of admission or the following day.

I have no note as to the exact time I saw Mr. Powell.” He was ¹⁷⁶ given nembutal, one and a half grains, morphine derivative, grains of six, pantopon. “Q. And those are drugs that can also cause toxic hallucinations? A. No, sir, not in the dosage, no. * * * Q. He had morphine in Salisbury before he came up there? A. I don’t know, but I wouldn’t be surprised if he had. * * * A, Let me inform you we had no history of alcoholism until after he developed the hallucinosis, and then I instructed my associates to inquire about the use of alcohol, because that was what it looked like, because up to the time he developed his mental state, we had no knowledge of alcohol, and from the clarity of his mind, we had no reason to suspect it at all — but I can think of nothing else except alcoholic psychosis that would have produced this particular picture, going over the whole gamut, the type of onset and clinical course. * * * to take the whole running story of the development, how it came on and the progress through the night, the best explanation I know is chronic alcoholism.” Apparently no one questioned Mr. Powell as to his drinking habits. At the end of a long cross-examination Dr. Arnold said, “I don’t want to have the court feel that one can, with absolute certainty, say from this hallucinosis this is alcohol, but certainly one has to go on the clinical picture; otherwise we would never make a diagnosis of anything, and when you see the same thing happening time and time again with the same pattern, the same agent — just as you look at a friend and say you know him, but you don’t know his name.

That is your picture of him, and that is my picture of delirium tremens, and if it is not due to alcohol, I don’t know what it is due to, and you can read the medical books — and read your head off — and if you can duplicate this picture, I’ll be obliged to you, and if this man was not a chronic alcoholic, I don’t know what it is. I’m not trying to develop that he was an alcoholic. I will simply have to say he had hallucinosis, cause undetermined. Q. Based on the information you received about the man being an alcoholic, you made the diagnosis that the hallucina ¹⁷⁷ tions were due to alcoholism, is that correct?

A. That is my opinion, yes. [On re-direct examination] Q. You had also made that same diagnosis prior to receiving those statements? A. I wouldn’t say diagnosis. I would say suspicion. It looked like that to me.

I told the house staff to inquire from the family and see if you can support it, and the evidence seemingly was forthcoming and we dropped it then and there.” Proviously he had said, “But I wouldn’t stress the point that one can be absolutely certain from looking at a patient with delirium that you could say this is alcohol or bromide. If we had the history in this man, for instance, that he had taken large quantities of bromide and got a blood bromide and found it highly elevated, you can say this is highly unusual for bromides, but here it is. But, from clinical experience, we say this looks like delirium tremens, and we go to the family and say, ‘Has he used alcohol to excess?’ and they say yes, and that is the answer, as far as we are concerned, you see.” The commissioner asked Dr. Arnold, “Q. Now, doctor, would the trauma of this operation have any influence or effect upon the onset of the delirium tremens ? A. That is purely a hypothetical thing.

I don’t know, I should not think so.” Later, the commissioner questioned Dr. Arnold at length as to the effect, if any, of the trauma of an operation as a precipitating factor in delirium tremens. Dr. Arnold in substance answered, none, because “we don’t consider the disc operation to be traumatic in the least of ways”, a reason not easy to understand without medical knowledge or verbal or other explanation. The “history” of alcoholism on which Dr. Arnold and Drs. Crosby and Nichols based their opinions was obtained by Dr. Crosby from a sister of Mr. Powell.

The sister, however, testified and flatly denied that she had made the statements testified to by Dr. Crosby or that such statements were true and said she had told Dr. Crosby that her brother was not alcoholic. The sister and the widow testified that Mr. Powell was not and ¹⁷⁸ never had been alcoholic and never drank except “socially” and that rarely and temperately. Except the testimony of the widow and the sister that he drank “socially”, there is no testimony that anyone ever saw him take a drink or saw any evidence of drink. His landlady, from whom he rented a room, testified that he told her he had drunk years ago but had stopped.

Six acquaintances testified that they never saw any evidence of drink. The sister testified that, after the operation, “To me he [Mr. Powell] appeared to be very heavily drugged or under some narcotic.” Dr. Crosby testified that when Dr. Arnold saw Mr. Powell about 4:30 he suggested that Drs. Crosby and Nichols should watch this man carefully and inquire for a history of alcoholism, and that evening he talked with the sister, who “admitted alcoholism on the part of the patient”. On cross-examination, Dr. Crosby, when asked how he differentiated between the type of hallucination brought on by alcohol and that brought on by some other toxic, said, “One of the best ways, I think, to differentiate between the two is to get a history of the use of toxics.

Q. Not from observing the type of hallucinations? A. I didn’t say that. One makes a clinical impression from the observations, but to make a pretty good diagnosis, presumptive diagnosis, one has to get a history of the use of a toxic agent, and I got a history of it. Now, one must believe the history one is given and use it, and that is all I did.

I got a history of alcoholism and used it.” He testified, “I don’t qualify as an expert on that differential” [between hallucinations brought on by one type of toxic and those brought on by alcoholism]. Claimant offered only one medical witness, Dr. Harry M. Mattax, who has been in practice, general practice, about two years. He had read the other medical testimony and read from “an authoritative text” on scopolamine and atropine, “The behavior and mental symptoms may suggest an acute psychosis. Memory is disturbed, orientation faulty, hallucinations (especially visual) common, sensorium clouded, and mania or delirium not ¹⁷⁹ infrequent.

The diagnosis of acute schizophrenic episodes or alcoholic delirium has been mistakenly made, and some patients have been committed to psychopathic institutions. * * * The syndrome described persists for many hours and may completely disappear only after