Griffin v. Kinberger

647 So. 2d 1270, 94 La.App. 4 Cir. 0262, 1994 La. App. LEXIS 3418, 1994 WL 701261
CourtLouisiana Court of Appeal
DecidedDecember 15, 1994
DocketNo. 94-CA-0262
StatusPublished
Cited by1 cases

This text of 647 So. 2d 1270 (Griffin v. Kinberger) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Griffin v. Kinberger, 647 So. 2d 1270, 94 La.App. 4 Cir. 0262, 1994 La. App. LEXIS 3418, 1994 WL 701261 (La. Ct. App. 1994).

Opinions

JiLANDRIEU, Judge.

In this medical malpractice action, plaintiffs, Marcus S. Griffin, Sharon Griffin Anzel-mo and Edward Griffin, appeal the judgment rendered in favor of Southern Baptist Hospital, Inc. (SBH). We are asked to determine whether the trial court erred when (1) it failed to instruct the jury as to a hospital’s duty with regard to granting staff privileges to physicians when the evidence did not support any liability under this theory and (2) it determined that Southern Baptist Hospital did not breach its duty to the patient, Marcus Griffin, and cause his damages. Finding no error in the judgment of the trial court, we affirm.

FACTS

At approximately 5:80 a.m. on November 13, 1964, plaintiff Sharon Anzelmo gave birth to a child at SBH. Because Marcus Griffin was born prematurely, weighing only two pounds 13 ounces, he was placed in an incubator and administered oxygen. This oxygen treatment continued from the date of birth through November 30 or December 2, 1964.

_j2Alleging medical malpractice,, plaintiffs filed this action for damages on August 17, 1983. Named as defendants were Dr. Frank Kinberger, Marcus Griffin’s treating pediatrician, Dr. Joseph Brocato, the obstetrician who delivered Marcus Griffin, and SBH, the facility where the treatment was rendered. Drs. Kinberger and Brocato were ultimately dismissed with prejudice on September 17, 1987, and, the only remaining defendant is SBH.

Plaintiffs alleged that the negligent administration of oxygen at the time of Marcus’ birth caused retrolental fibroplasia (RLF) in his left eye, resulting in total blindness in that eye. He also developed glaucoma in his left eye, a myopic right eye, and cataracts and retinopathy prematurity (ROP) in the right eye.1 Specifically, plaintiffs claim that this excess, unnecessary and unmonitored oxygen therapy was administered, without the use of an oxygen analyzer, by an untrained and unsupervised nursing staff in violation of the long established, well recognized and adopted professional standards. Plaintiffs also contend that SBH was negligent by permitting pediatricians, including Dr. Kinber-ger, to administer oxygen in a substandard manner, in accordance with substandard policies and practices of the hospital.

[1272]*1272At trial, Dr. David Newsome, plaintiffs treating ophthalmologist, testified that Marcus has ROP in both eyes. In his left eye, which is classified as RLF, he is “stone blind” with a “shrunken eyeball”. There is no light or depth perception in the left eye, and this condition is permanent and untreatable. Mr. Griffin also has glaucoma in his left eye which is being treated with eyedrops to alleviate the pressure. With regard to the right eye, Marcus Griffin is severely myopic. His best vision in that eye is 20/60 corrected. Mr. Griffin |3also has cataracts in his right eye, which, while looking at a headlight from an oncoming car, causes glare and halos.

According to Dr. Newsome’s testimony, ROP occurs in low birth weight, premature infants, who have been administered high levels of oxygen for an extended period of time; oxygen disturbs the normal development of the immature blood vessels supplying the retina. Specifically, he noted that it’s the administration of high oxygen concentrations to a premature infant that sparks the “cascade of events” that leads to the development of ROP.

If the administration of this oxygen is stopped or reduced in time, the blood vessels can relax and resume normal growth. However, if the oxygen is continued beyond need, the vessels never grow normally and there is complete scarring thereby causing a loss of sight. Very few cases have been reported claiming that full-term and/or non-low birth babies developed ROP.

Based on the fact that Marcus Griffin was born prematurely weighing two pounds 13 ounces, or 1,276 grams, and received continuous oxygen for at least 17 days, Dr. New-some felt that the supplemental oxygen played a role in initiating the events that led to the development of the various stages of ROP.

Dr. Dale Phelps,2 neonatologist, testified that ROP occurs “exclusively” in premature babies. Due to the lack of development of the blood vessels to the retina when they are born, these preemies are more susceptible to developing ROP. Most often it is believed that the cause of ROP is prolonged administration of high oxygen. Dr. Phelps noted that there was a specific need for supplemental oxygen on the 5th, 6th, 8th and 11th day of Marcus’ care.3 |4She opined that, according to reasonable medical certainty, the unnecessary oxygen administered to Marcus caused his ROP. Furthermore, she noted that had the proper standard of care been administered, Marcus most likely would have better vision today. In 1964, the standards required that the amount of oxygen in the incubator should be measured with an analyzer.

In addition to being a premature baby weighing only two pounds 13 ounces, Marcus had several other complications. He was jaundiced and had developed hyperbilirubine-mia, which required an exchange transfusion (blood transfusion) on November 18th. Additionally, he sustained a collapsed lung, several episodes of cyanosis (blueness), and dyspnea (shortness of breath).

Prior to November 30th, the oxygen was continuous, then, on that day, there is a notation of “PRN” on the baby’s chart which means that the nurses were to give oxygen as they determined the baby needed it. The duration of oxygen was ordered by Dr. Kin-berger who actually observed the baby’s condition each day.

By 1964 standards, the ordering of oxygen was something that rested within the sound clinical judgment of the physician. At this time, SBH was accredited by the Joint Commission of Accredited Hospitals (JCAH).

Dr. Isadore Yager, pulmonist, served as chief of oxygen therapy at Touro Infirmary [1273]*1273from 1955 to 1969. According to his testimony, he first learned that there might be a danger to premature babies who were getting oxygen therapy in 1956, and in 1959 his department instituted a program limiting oxygen concentration to 40%. From that point on an oxygen analyzer was used to measure the percentage of oxygen in the incubator. At that time, oxygen ^flowed through tubes to get into the incubator. A liter flow gauge was used to tell how many liters were going into the incubator. However, the gauge did not determine what concentration of oxygen was inside the incubator. The liter flow gauge merely gave a rough index to the concentration of oxygen inside the incubator but did not account for oxygen leakage, flow gauge errors, or kinked tubing. It was the recommendation of Touro’s oxygen therapy department, and the policy of the hospital, not to give over 40% and to reduce it when the baby did not need that much. Dr. Yager specifically recalled that Touro had an oxygen analyzer in use as early as 1959. The standard was that after the nurse or other personnel measured the percentage of oxygen every four hours, the level would be recorded on the patient’s chart.

Lastly, Dr. Yager testified that he would defer to the pediatrician in determining whether a premature infant needed oxygen.

Dr. David Charles Abramson, plaintiffs expert in pediatrics and neonatology, testified that in the early 1950’s, it was being suggested by many researchers that oxygen may play a part in the development of RLF.

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Bluebook (online)
647 So. 2d 1270, 94 La.App. 4 Cir. 0262, 1994 La. App. LEXIS 3418, 1994 WL 701261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffin-v-kinberger-lactapp-1994.