Nature of the Case
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Facts
Thompson (P), a healthy 36-year-old woman, underwent elective surgery at D for an abortion and tubal ligation, procedures requiring general anesthesia. Nurse-anesthetist Elizabeth Adland, under the supervision of Dr. Sheryl Walker, the physician anesthesiologist, inserted an endotracheal tube into P's throat for the purpose of conveying oxygen to and removing carbon dioxide from, the anesthetized patient. The tube goes into the patient's trachea just above the lungs. Ps allege it was inserted into P's esophagus, above the stomach. After inserting the tube, Nurse Adland 'ventilated' or pumped air into the patient while Dr. Walker observed P's reactions including watching the rise and fall of her chest and listening for breath sounds equally on P's right and left sides to determine if the tube had been properly inserted. While the surgery was underway, surgeon Nathan Bobrow noticed that P's blood was abnormally dark, which indicated that her tissues were not receiving sufficient oxygen. Adland checked P's vital signs and found them stable. As Dr. Bobrow began the tubal ligation part of the operation, P's heart rate dropped. She suffered a cardiac arrest and was resuscitated, but eventually, the lack of oxygen caused catastrophic brain injuries. P remains in a persistent vegetative state and is totally incapacitated; her cardiac, respiratory, and digestive functions are normal and she is not 'brain dead,' but, according to the expert, she is 'essentially awake but unaware' of her surroundings. P's mother brought a medical malpractice action. Ps alleged that D was negligent in failing to provide the anesthesiologists with a device known as a capnograph or end-tidal carbon dioxide monitor which allows early detection of insufficient oxygen in time to prevent brain injury. Ps' expert, Dr. Steen, gave no testimony on the number of hospitals having end-tidal carbon dioxide monitors in place in 1987, and that he never referred to any written standards or authorities as to the basis of his opinion. Dr. Steen testified that by 1985, the carbon dioxide monitors were available in his hospital (Los Angeles County -- University of Southern California Medical Center (USC)), and 'in many other hospitals.' Dr. Steen's opinion was based in part on his own personal experience and from 'what I've read where [the monitors were] available in other hospitals.' He referred to two such publications: The American Association of Anesthesiology (AAA) Standards for Basic Intra-Operative Monitoring, approved by the AAA House of Delegates on October 21, 1986, which 'encouraged' the use of monitors, and an article entitled Standards for Patient Monitoring During Anesthesia at Harvard Medical School, published in August 1986 in the Journal of American Medical Association, which stated that as of July 1985 the monitors were in use at Harvard, and that 'monitoring end-tidal carbon dioxide is an emerging standard and is strongly preferred. The AAA Standards were recommendations, strongly encouraged but not mandatory, and that the Harvard publication spoke of an 'emerging' standard. D’s expert anesthesiologist, Dr. John Tinker of the University of Iowa, testified that his hospital had installed carbon dioxide monitors in every operating room by early 1986, and that 'by 1987, it is certainly true that many hospitals were in the process of converting' to carbon dioxide monitors. D's own Chairman of the Department of Anesthesiology, Dr. Murray submitted a requisition form to the hospital for end-tidal carbon dioxide units to monitor the administration of anesthesia in each of the hospital's operating rooms, stating that if the monitors were not provided, the hospital would 'fail to meet the national standard of care.' Even so, Dr. Murray opined that in November 1987 there was no standard of care relating to monitoring equipment. The jury found for Ps and D moved for JNOV. It was denied and D appealed.
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