*1 PLUTSHACK, by his Drazkowski guardian, parent and natural natural Drazkowski Plutshack
Christine Plutshack, Drazkowski indi
vidually, Appellants,
The UNIVERSITY OF MINNESOTA al.,
HOSPITALS, Respondents, et Woods, Respondent,
Dr. William Swaiman, Respondent.
Dr. Kenneth
No. 51087.
Supreme Court of Minnesota.
Feb. *2 Krieser, Tierney Minneap-
Paul and Peter olis, appellants.
Geraghty, O’Loughlin Kenney & Paul, Kenney, James for the U. of Mn. St. Hospitals, et al. Geer, Markham, Anderson,
Meagher, Ad- amson, Mary Flaskamp & Brennan and Coyne, Minneapolis, for Dr. Woods. Jeanne Bassford, Heckt, Lockhart & Mullin and Anderson, Lockhart and John Minne- Greer apolis, for Dr. Swaiman.
PETERSON, Justice. Plutshack, minor,
Plaintiffs Robert Plutshack, mother, brought malpractice against this medical action de- Swaiman, M.D., fendants Kenneth William Woods, M.D., R.N., Deborah University Hospitals. Minnesota Plain- sought damages allegations upon tiffs negligently cared for Rob- that defendants performed certain lumbar ert Plutshack and Plut- punctures upon him without Christine shack’s actual or informed consent. At the close of case the trial court di- each Plain- rected a verdict for defendant. appeal directing tiffs from the order ver- denying subsequent dicts and from a order new trial. We affirm. their motion for a (Robert) restlessness, Plaintiff Robert Plutshack fects include irritability, sweat- 11,1974, nausea, with achondro- ing, vomiting, diarrhea, born November fever and dwarfism, causing plasia, collapse. a condition may The lumbar itself enlargement hydrocephalus, hemorrhage, of the head cause infection impaling due to the accumulation of fluid in the cord and pressure alter the 14, 1975, age brain. at the of 5 relationships On system. *3 months, Robert was admitted defendant mother, plaintiff Christine Plut- Hospitals (the University of Minnesota hos- shack, consented to pital) attending physi- for evaluation. His Leutscher, resident, PEG. Dr. neurology a Swaiman, cian Kenneth was defendant a PEG Robert on M.D., Department the head of the of Pedia- April 29 but halted the when he University Neurology tric at Minnesota’s was spinal unable to obtain a flow of medical school. permit sufficient to the introduction of air. scan, computer-assisted
A a discharged upon CAT series of Robert was the recommen- performed X-rays, was on Robert’s brain on dation he be readmitted in two weeks 1975. The CAT scan disclosed an for another at a PEG. enlargement abnormal of the brain ventri- Robert hospital May returned to the cles,1 a condition consistent with hydroce- 13. The history upon taken phalus. The CAT scan also indicated an recently admission indicates that he had posterior por- unusual malformation in the recovered from a cold. Dr. Leutscher at- tion left ventricle which the radiolo- tempted following day. a PEG the gist porencephalic cyst termed dilation. temperature, just rectal taken before is commonly Such malformation not asso- procedure, degrees.3 was 100.4 Dr. John hydrocephalus. ciated with Latimer, a pediatrics resident in who was pneumoencephalogram (PEG) Robert, A treating was then attributed Robert’s elevat- (1) ordered for temperature preoperative Robert determine wheth- ed medication er arresting there was an obstruction and the fact the room was warm. spinal Again, normal flow of fluid between the PEG was unsuccessful because spinal cord and the ventricles of Robert’s Dr. Leutscher steady was unable to obtain a brain and whether there were spinal additional flow of fluid. areas of posterior por- malformation in the By p. day, May 2 m. on the next
tion of his brain. temperature Robert’s rectal had increased
A is X-ray degrees. PEG an of the brain. The to 102.4 Because of his fever Rob- procedure involves the discharged hospital. introduction of air ert was not from the space by into the subarachnoid temperature approxi- means of a Robert’s remained at puncture (a lumbar spinal tap). mately degrees The air through May 16 but up brain, flows into the degrees by evening ventricles of the increased to 103.2 outlining defining May episode vomiting them so that abnor- 17. Robert had an readily malities are observable when signs and showed of ear infection cases, is X-rayed. brain In almost all some symptoms suggested stiff neck. These morbidity meningitis.4 attends a PEG. Possible side ef- A puncture was or- Schmidt, cerebrospinal 1. The ventricles of the brain are the several filled with fluid. 3 su- n.l, occurring normally pra cavities or chambers at S-170. Schmidt, Attorney’s Dictionary brain. 3 temperature approximately 3. A rectal 1 de- (1979). Medicine V-^8 gree higher temperature. than an oral A nor- temperature approximately mal rectal degrees. 99.6 space space 2. The subarachnoid is the between pia pia the arachnoid and the mater. The ma- membranes, ter is the innermost of the three Meningitis any is an inflammation of or all meninges, spi- which encase the brain and the meninges, the ing the three membranes surround- layer. nal cord. The arachnoid is the middle Meningitis the brain and cord. usu- space between these two membranes is throat, fever, ally begins with soreness of the sample spoke to obtain a with Dr. Swaiman he with Christine dered testing whether he fluid for to determine Plutshack and obtained her consent to an- the disease.5 had indeed contracted Although puncture. other lumbar Christine testified that her conversation Plutshack 18 a approximately At 12 a. m. during place with Dr. Latimer had taken Plutshack’s telephoned nurse morning agreed that she she Drazkowski, mother, ask Bernard Mrs. gave permission him another puncture.6 to the lumbar Mrs.. for consent daugh- puncture. to locate her Drazkowski was unable nurse that puncture p. ter. Mrs. Drazkowski told the the lumbar at 11 m. but was give her own consent she would obtaining sample of Rob- unsuccessful puncture. ert’s fluid. He made three or four proce- ceased the passes with the needle but resident, Shaw, performed the lum- give a rest when dure in order to report Dr. puncture at 2 a. m. In his bar agitated. An- Robert became flushed and Shaw described *4 puncture was scheduled for other lumbar He the elevated se- “difficult.” attributed glucose by following day, May that was demonstrated rum subsequent test of Robert’s blood to stress temperature remained elevated Robert’s response puncture. to the lumbar Addition- overnight. At a. m. on 19 defend- 8:30 ally, puncture was “traumatic”: Woods, M.D., pedia- the chief ant William in the men- the needle struck a blood vessel resident, a lumbar trics inges spinal with the surrounding the cord upon Robert. Defendant Deborah sample result that blood was included in the Woods; Hunter, R.N., assisted Dr. Robert spinal Analysis fluid. of the student, procedure. observed the presence white spinal fluid showed the body draped Ms. Oleson all of Robert’s ex- cells. White blood cells are not usual- blood cept his back and held him on his side in a fluid; present, they ly spinal found in when position. three flexed Dr. Woods made may meningitis. sample In the indicate punctures; upon the third he was successful fluid, however, spinal Robert’s the number obtaining spinal a flow of fluid. Collec- disproportion- white blood cells was not spinal of the fluid took 3-4 minutes. tion ate to the number of red blood cells. It was halfway cried until Robert was irritable and impossible white to determine whether the fluid; through spinal at collection of the spinal cells in Robert’s fluid con- blood point he became still. Woods that he had or were firmed “okay.” asked Ms. Oleson if Robert was present merely because the lumbar Ms. Oleson checked Robert and observed ture had been traumatic. moving his color was that his chest was and symptoms persisted throughout pink. when Hunter stimu- Robert reacted evening day May 18. That Dr. La- spinal lated his foot. After collection of the by timer consulted with Dr. tele- Swaiman completed, Dr. Woods looked at fluid was phone proper of action. as to course that he was breath- Robert and made sure per- advised Dr. Latimer to Dr. Swaiman ing. Then Dr. Woods left the room and puncture in form another lumbar order to secretary’s sample took the fluid to a analysis. for further obtain fluid away. his desk about 15 feet Latimer testified that after conversation lassitude, general aching body, rapid organism patient’s involved. A culture of the may develop pulse patient necessary identify organ- and chills. The also is Unconsciousness, delirium, preferred obtaining spinal a stiff neck. ism. The method of may puncture. convulsions follow in severe cases. A fluid for a culture is a lumbar significant mortality rate is associated with the disease. telephone had no at her 6. Christine Plutshack given hospital and had her moth- residence any 5. Infection with one of a number of bacte- telephone number at which er’s number may ria Treat- or viruses cause she could be reached. specific depends ment of the disease on the had left After Dr. Woods the room The issue appeal raised had whether the trial court 30 seconds after was correct in about di recting a verdict for each defendant on ended, from drape Ms. removed the Oleson plaintiffs’ claims of negligent care and the child over his Robert turned onto treatment and failure to obtain actual and placed posi- As in a back. Robert was flat informed consent. A motion directed tion, changed limp. his and he color became presents question verdict of law regarding placed stethescope immediately Hunter sufficiency of the evidence to create a listened on Robert’s chest and for a heart- question fact for the jury’s decision. For breathing. beat the sound of He heard motion, purposes the trial court must Woods; called neither. Hunter for Dr. entirety consider the record in its and treat they immediately cardiopulmonary started as credible the evidence adverse began resuscitation. Robert’s heart to beat party and all inferences that reason spontaneously 2-3 minutes later. Dr. La- ably be drawn from that evidence. Not timer, present who was not when these evidence, every however, conflict in the place, events took noted in chart gives jury question. rise to a The trial experienced that Robert had ar- “cardiac court should direct a for the party verdict probable injury secondary mechanical rest— in whose favor the evidence overwhelm positioning puncture.” for lumbar ingly predominant even if thére is some party. evidence for the Zinnel adverse permanent injuries suffered Co., Berghuis Construction 274 N.W.2d July is now in a semicomatose state. (Minn.1979). gov same standard Plutshack, 1976 Christine Rob- behalf of *5 appeal. erns this court on individually, ert and for herself commenced Swaiman, establish against prima this action Dr. Dr. To facie case of negligent against care and treatment each Woods, hospital. Ms. and the Oleson She defendants, Swaiman, of the individual Dr. sought compensation from defendants for Dr. Woods and Ms. plaintiffs were personal injuries Robert’s and the medical required to introduce expert testimony expenses she had incurred and incur would demonstrating (1) the of care rec standard alleged (1) on behalf. that Robert’s She ognized community the by appli as injuries were negligent the result of care particular conduct, cable to the defendant’s Swaiman, and treatment on the of Dr. (2) departed that the defendant in fact (2) Dr. Woods and Ms. Oleson and that standard, (3) from that and the that defend punctures performed several the lumbar departure ant’s from the standard was a on Robert had done without been her actual injuries. direct cause Robert’s Smith v. sought informed recovery consent. She Knowles, (Minn.1979).7 281 N.W.2d 655 the hospital from basis of the doc- The trial court directed verdicts for Dr. respondeat superior. trine of Swaiman, Dr. Woods and Ms. Oleson on the jury The matter was tried before in plaintiffs ground that had to demon failed departure November 1979. Plaintiffs into applicable introduced strate a from the stan videotaped liability dard of deposition hospital’s evidence the of Dr. care. Since plaintiffs was basis Glass, claimed on the Bernard in specialist neurosurgery respondeat superior, doctrine of the trial practices neurology who medicine in hospi for the court also directed a verdict California, in an to demonstrate tal. defendants’ care and treatment plaintiffs Robert. their After rested dispute inju- do not that the Defendants case, the trial directed court a verdict plaintiffs compen- ries seek for which now each defendant. Plaintiffs now cardiac appeal. by sation were caused arrest recognized by physicians good standing 7. The medi- standard of care in in the same or Chatterton, localities.” Swanson community cal been has defined as the “stan- similar 281 129, 134, learning ordinarily possessed (1968) dard of skill and 160 666 Minn. N.W.2d (footnote omitted). and exercised similar under circumstances g 19, 1975. Plain- last in an to obtain three effort Robert suffered Glass, witness, Bernard meningi- expert analyze possible
tiffs’ opinion in his testified that that a tis. Dr. Glass himself testified of the noxious as a result arrest occurred any question if there is tap is indicated punctures stimuli meningitis and he have been April 29-May during period on him critical if Robert’s doctors had decided not punc- history of those 1975. The during tap which Robert as follows: tures be summarized arrest. suffered cardiac No. of recognizes also that he Dr. Glass testified Insertions authority Nelson Professor Waldo E. By of Needle Performed Date from the stand the pediatrics. He read 2 Dr. Leutscher 4/29/75 following statement from Nelson’s Text- 1 Dr. Leutscher 5/14/75 sug- meningitis “If book of Pediatrics: (2AM) Dr. Shaw 5/18/75 * * *, good judgment requires that gested 8 or (11PM) 5/18/75 (9AM) Woods many rather than too few lumbar Defendant too 5/19/75 * * * obtains no be done. one tures [I]f claim that Dr. Swai- Plaintiffs’ cerebral fluid examination normal neg man, attending physician, was diagnostic punctures, too Robert, among ligent in his care treatment being done.” Since defendants vicariously liable for few are hospital last three negligence, upon testing is based Dr. Swaiman’s were allegation procedures, plaintiffs allowed tapping Swaiman of the five punctures that, of lumbar greater performing number established have not the medical com performed on Robert than tests, any stan- defendants violated these Specifically, munity appropriate. considers dard of care. (1) allege the PEGs Dr. Swai- plaintiffs two procedures, The first those therefore, and, man ordered for Robert not done in order to 29 and were to the PEGs punctures incidental They attempts were diagnose medically necessary were not PEG, tell which would many too needle permitted Dr. Swaiman *6 were ar- doctors whether there obstructions the to be made in the course of insertions the resting the flow of fluid between a sam attempts second third to obtain and spinal chord and the ventricles of testing to ple of Robert’s physician was in Dr. Swaiman the brain. he had determine whether during his charge of Robert’s care second hospi- to When Robert was admitted the responsible He was hospital admission. 14,1975, April achondroplastic tal on he was to all lumbar the decision poor had head hydrocephalic. He also except with the first tures those associated weakness and control and suffered from a PEG. complete con- problems. The CAT scan coordination points deposition, in his Dr. At several 22, 1975, showed several ducted on questioned as to the standard of Glass was However, possi- it was not abnormalities. regarding to administer test whether care the decision from this ble determine it Although the result of an he indicated that these were the PEG. abnormalities hydrocepha- atrophic or process unacceptable practice obstructive a medical undisputed or lus. It is that obstructive hydro- in order determine whether PEG requires treat- progressive hydrocephalus might progressive become cephalus would tell whether ment and that PEG future, considerably testimony became suffering hy- obstructive Robert was from questions were asked. less certain more drocephalus. scan was admitted that CAT Dr. Glass PEG performed on before the was Robert attempted proce- staff five hospital ordered, an abnor- that the scan indicated first requiring punctures, dures ventricle of Rob- mality in the left lateral performing a PEG purposes two for suspected and that abnor- ert’s brain there was no reason not to attempt another. normally one not mality was associated no Since there was adverse ei- reaction to agreed He further ther hydrocephalus. punctures, with of the first two there is no of the scan could not tell that the reader evidence that either of them proxi- was a an in the whether there was obstruction mate injury. cause of Robert’s from the ventricle to the interi- passageway argue Plaintiffs also that Dr. Swaiman of the brain portion or and that PEG negligent supervision was in his of Robert’s such an would disclose obstruction. care. Dr. Glass testified that a phy- careful then testified not Dr. Glass that he would sician have would intervened when having have done PEG that a PEG would not staff were doctors trouble complet- point. However, procedure ing spinal tap. be the choice at this there is sub- However, opinions testimony indicate, first, he also admitted that the stantial Dr. that given vary he had would from those of continually changes Swaiman was aware of and, well-recognized experts second, field. other in the Robert’s status doc- regarding performing taps These statements of Dr. Glass tors were well versed specific required procedure. be used under this set of circumstances do not a stan- establish personally Dr. Swaiman saw on Robert Although Dr. testified dard of care. Glass associate, 16. His 15 and Dr. Lock- have PEG in that he would not done the man, saw Symptoms case, he testify did not that Dr. Swai- meningitis later appeared day, that and a acceptable prac- follow man did not tap attempted during night. was How- tice. ever, (the performing before tap fourth serious, however, meningitis), Even more second for had any phone failure to show that act or omission on extensive consultation with Dr. Swai- man, proximate was the cause that be taps defendants’ who directed further injury. procedures Dr. Glass testified that done. The final two were done Latimer, previously per- arrest was Dr. who had a result punctures, formed about 50 lumbar Dr. large cumulative effect of the number of Woods, that punctures which who testified he had were in- true, approximately punctures 200 lumbar If that is impossible Robert. it is fants and We cannot children. find negligence, plain find because the fact is supervision Swaiman’s punctures that the final three which —those supervision that a different kind of produced a “cumulative also effect”—are the result in changed have this case. necessary were medically those which prudent. case, malpractice plain In a medical showing seems to each burden of “it saying Glass tiffs have the tap [injury] ulti- was probable weakened condition and more resulted *7 mately negligence caused the arrest. testi- for It was his from some which defendant “one mony taps responsible something of those instru- was than from was creating responsible.” mental in the situation led to which he not was Silver However, Redleaf, arrest.” undis- Minn. cardiac it is 292 194 N.W.2d puted (footnotes omitted). completed PEG was never Rob Robert. Because the injury doctors were unable ert’s was caused cardiac arrest fluid, adequate get they during to flow of the of a injected medically never air into the column. the necessary. which was While tragic, Dr. himself to Glass testified that Robert result was there is no evidence symptoms suggest showed adverse either in no after that Dr. Swaiman was the attempted deciding PEGs. There was no indica- did. to test as he nausea, vomiting, Furthermore, tion of or plaintiffs headache no have shown neither collapse. and no no ad- Since Robert had that Dr. Swaiman’s decision to PEG, verse to the contrary acceptable reaction first PEGs to was Ms. Oleson held Plaintiffs claim that to brae. that his decision practice nor way that he could not in such a caused Rob- Robert probably most two tests first this caused his and that breathe injury. ert’s arrest. prima facie to establish Plaintiffs failed the standard only regarding evidence treatment negligent care and
case conduct Ms. Oleson’s applicable of care Dr. attending physician, Swai- against the that her testimony. testified her own She hospital. man, and, vicariously, against follow- had included the nursing education in did not err therefore The trial court inherent reláting to the risk ing instructions Dr. directing a verdict for Swaiman puncture: lumbar holding an infant for a in hospital. holding patient on his side you’re “[I]f Dr. Woods allege 2. Plaintiffs get up trying flexing their knees puncture lumbar performed the negligently down, not you to be careful head have their following which Rob May 19—the one testimony airway.” This their to obstruct functioning. Dr. Woods ceased ert’s heart the stan- sufficient to demonstrate may be spinal fluid obtaining a flow of succeeded Ms. Oleson’scon- applicable to dard of care was attempt. As Dr. Woods upon his third that Robert was Dr. Woods testified duct. Robert, fluid, up who collecting puncture the final lumbar breathing after difficult restless and point had been to that The record therefore completed. had been control, suddenly quieted. Glass’ failed that Ms. Oleson not demonstrate does reasonably prudent physician opinion, applicable standard comply with the stopped collection immediately have Moreover, no ex- the record contains care. explained that Robert’s fluid. Dr. Glass demonstrating that such testimony pert body’s way of activity was “the cessation of could of Ms. Oleson conduct on something is an indication that giving us Af- injuries. directly have caused Robert’s is an adverse reac that there happening; arrest, made the the cardiac ter tion.” “cardiac following note in Robert’s chart: injury second- probable mechanical sufficient Although testimony arrest — ary puncture.” positioning applica- of care demonstrate a standard that he based Dr. Latimer testified At trial conduct, and that Woods’ ble to Dr. assumption that Ms. Oleson on the this note standard, departed from that Woods sitting position. The Robert in a had held sufficient contains no evidence record that the note correctly concluded trial court question whether defendant jury raise a because it causation does not demonstrate a direct cause of negligence was Woods’ assumption. an inaccurate was based on testimo- injuries. in his Nowhere not err in court therefore did The trial that it express opinion ny did Dr. Glass plain- Ms. directing a verdict for Oleson if than not that defendant probable is more negligent care against her for tiff’s claim procedure when Rob- had ended the Woods and treatment. arrest would activity the cardiac ert ceased Robert would have have occurred or not against each Plaintiffs’ second claim Therefore, the injury. without survived it allegations upon the defendant is based directing a verdict was correct trial court puncture May first lumbar against claim for Dr. Woods Christine Plut- without negligent care and treatment. him for the second consent and that shack’s actual nurse, registered Deborah *8 of 19 and puncture performed as he Dr. Woods assisted were to the PEG tures incidental held puncture lumbar on Robert. She final consent. without her informed still, position, flexed with in a life-threatening dis Meningitis is a together and his and his knees drawn head necessary to is spinal A fluid culture ease. in order to maximize curved outward back meningitis; a lumbar diagnose definitively his verte- spaces size of the between preferred is the method obtain- puncture meningitis that be fatal can if it is not spinal treated, When Robert ing sample. diagnosed fluid properly a spi- that a meningitis began display symptoms to it preferred nal fluid culture is the method of necessary sample to a of his diagnosis, became obtain puncture that a is Hospital quickly possible. fluid as necessary to sample. obtain a reach Christine personnel to The record contains no evidence indicating residence, Plutshack at her mother’s but she that risk that materialized in harm in exigent not be such cir- could located. case, arrest, this the risk of is a cumstances, considering the fact that significant puncture a lumbar risk when is said the Christine Plutshack’s mother lum- performed on such a child as Robert. proceed, could Christine Plut- bar Therefore, correctly the trial court directed actual the first shack’s consent to verdicts for defendants the claim of neg- puncture May unnecessary. 18 Con- was ligent nondisclosure. may implied. be
sent The directing trial court’s order verdicts was informed Plutshack all for defendants is affirmed. puncture. that a PEG entailed a lumbar consented of a YETKA,
She twice
to
(concurring specially).
Justice
18,
after the
PEG
Robert. On
first
only
I concur in the decision
because I
attempt
sample
spi
to obtain a
prove
believe
counsel failed to
a
diagnostic
agreed
she
purposes,
nal fluid
the injury
causal connection between
to the
to
repeated.
allow the
be
boy
alleged negligence
little
of the
allege
Plaintiffs
Christine Plutshack’s con
believe, however,
I
that
doctor.
there is
punctures
sent
these lumbar
was not
negligence
based on the
evidence
testi-
informed because she was not told of all the mony
Considering
of Dr.
Glass alone.
puncture.
risks associated with a lumbar
spinal punctures
number of
that Robert was
period
time,
We
a
recognized
given
first
cause of action
over the brief
negligent
significant
expected
of a
have
nondisclosure
Glass indicated he would
Tongen,
in Cornfeldt v.
injury
Many
risk of treatment
that
resulted.
ultimately
(Minn.1977) (Cornfeldt I).9
attempts
been KELLEY, JJ., no took
OTIS this case. decision of consideration Beerling
Streater, Murphy, Gernander & Winona, Jr., appel- Murphy, and Leo al., FABIAN, Respondents, et Arvin lants. Hansen, Winona, for Nemes, Thompson & al., SATHER, Appellants. et Reuben respondents. 81-763. No.
Supreme Court of Minnesota. 12, 1982.
Feb. PETERSON, Justice. concerns whether appeal
The sole issue limited vendors in a land sale contract are when damages by liquidated the contract question to a third they sell the land in ven- held that the party. The district court liquidated not limited dors were We re- damages in the contract. provision verse. Margaret July
On Reuben and agreed (vendees) purchase certain Sather Fabian property real from Arvin Janice $46,000. made a (vendors) The vendees $1,000 with the balance downpayment of vendees payable August 1979. The con- subsequently the land sale breached through with the go tract refused to purchase. brought action then vendors County Winona Dis-
against the vendees in specific performance or dam- trict Court for land sale contract. ages for breach commenced, trial before the property question sold the the vendors $43,000. The vendees party a third judgment immediately summary moved for aban- vendors had ground specific action for doned their $1,000 to the they were limited pur- damages specified in liquidated