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Froio v. DuPont Hospital for Children2/21/2003
Submitted: November 26, 2002
Upon appeal from the Superior Court. REVERSED and REMANDED.
In this appeal we consider whether the Superior Court erred in granting summary judgment to appellee in a medical malpractice case. The trial court found that the deposition of appellant's expert failed to establish either causation or that appellee breached the applicable standard of care. We disagree. Although the expert gave arguably inconsistent responses to different questions, the deposition provides the factual basis for appellant's claim. Accordingly, appellant should be allowed to go to trial.
Factual and Procedural Background
Samantha Latigona was born in 1989 with a rare genetic disease, metachromatic leukodystrophy (MLD), which causes progressive paralysis and leads to death within a few years. In 1997, Samantha's mother, Rosalie Froio, brought Samantha to the du Pont Hospital for Children ("Nemours") for treatment of scoliosis, or curvature of the spine, caused by the MLD. Drs. Kirk Dabney and Stephen Ludwig performed a spinal fusion to straighten Samantha's spine. During the surgery, a warming blanket called a "Bair Hugger," was placed over Samantha's legs and feet to prevent hypothermia and to promote proper blood circulation. When the surgery was completed and the Bair Hugger was removed, the doctors discovered that the Bair Hugger had inflicted first and second degree burns on Samantha's feet. Samantha died on December 31, 1998. Her death was unrelated to the surgery.
In her complaint, Froio alleges that Nemours failed to properly use, monitor, or test the Bair Hugger. Froio attempted to support those allegations with the report and deposition testimony of Dr. Maria Zestos. In her report, Zestos identified several factors that "may" have contributed to Samantha's burns: (1) improper positioning during the surgery, which could cause compromised blood flow and would increase the risk of burns; (2) hypotension, or low blood pressure, which occurred for two ½ hour intervals during the 6-hour operation; (3) direct pressure contact with the Bair Hugger; (4) a hole in the Bair Hugger; (5) external pressure on Samantha's legs (as from surgical instruments); and (6) other sources of heat, such as hot blankets or a heating lamp. Zestos concluded her report:
In summary, Samantha Latigona most probably experienced some degree of decreased perfusion and ischemia [decreased blood flow] to her lower extremities. This is supported by the cyanosis of her toes.... This was most likely caused by poor positioning with compromised blood flow and venous return, or by significant periods of hypotension during the operation. This ischemia may have predisposed Samantha to second-degree burns despite appropriate setting and functioning of the Bair Hugger. Direct contact pressure injury may also have contributed to the dorsal surface burns. My above findings constitute a deviation in the standard of care of Samantha Latigona resulting in the second-degree burns. All of my opinions are to a reasonable degree of medical certainty.
In her deposition, Zestos opined that patient positioning, exacerbated by hypotension, was the cause of Samantha's burns. She explained that, in her report, she set forth all the possible causes and then settled on these causes based on the medical records. When pressed about her theory that Samantha had been placed in the wrong size frame, or that she had not been properly positioned in the frame, Zestos stated:
F. * * *
You are absolutely right, it is not standard of care to check the feet in the middle of surgery; however, if the patient's underlying disease prevents you from appropriately
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