Aiken v. Clary
| Decision Date | 13 December 1965 |
| Docket Number | No. 2,No. 50792,50792,2 |
| Citation | 396 S.W.2d 668 |
| Parties | Clarence James AIKEN, by his Guardian and Curator, Alene Aiken, Appellant, v. William F. CLARY, Respondent |
| Court | Missouri Supreme Court |
John B. Newberry, and John Lewis, Springfield, for appellant.
Irving W. Schwab, Thomas D. Dwyer, Keith V. Williams, Springfield, for respondent.
Plaintiff went to trial on Count III of a malpractice action wherein he alleged negligence of defendant in failing sufficiently to advise plaintiff of the hazards and risks involved in insulin shock therapy to enable plaintiff to give an informed consent for the treatment. Plaintiff alleged that as a result of such therapy administered by defendant he was caused to lapse into a coma and to suffer organic brain damage, resulting in total disability. He sought recovery of $150,000. The jury returned a verdict for defendant. After an unavailing motion for new trial, plaintiff appealed to this court.
Plaintiff seeks a new trial on these grounds: (1) That the court erred in sustaining defendant's objection to plaintiff asking the jury panel on voir dire examination whether any of them were officers, agents, employees or stockholders of the Medical Protective Company of Fort Wayne, Indiana, a company which it was stipulated had an interest in the outcome of the case; (2) that there were errors committed in the giving and refusing of certain instructions, as detailed in the motion for new trial, and (3) that there was no evidence in the record on which a verdict for defendant could be based, and hence the verdict was against the weight of the evidence.
In response thereto, the defendant, in addition to specific contentions on these three particular assignments of error, claims that such alleged trial errors were immaterial for the reason that plaintiff failed to make a submissible case for the jury. Accordingly, we first consider that contention on the theory that if correct it would dispose of the case. We proceed, therefore, to examine the evidence, which, insofar as pertinent to this assignment and viewed most favorably to plaintiff, was as follows:
After military service from 1941 to 1945 plaintiff entered employment of the Frisco Railroad, ultimately serving as an electrician in the diesel engine department. Early in 1961 plaintiff became irritable and 'changed almost his entire personality.' He was cross with the children, particularly a teen-age daughter, spent money on things for which he had never spent money before, and had trouble sleeping so that he lost a great amount of sleep and rest. His wife discussed with him the matter of seeing a doctor, but he maintained that his wife needed a doctor as much as he did, and that it was she who was 'way out in left field.' He agreed to see a doctor if she would, and they then consulted Dr. Lewis E. Jorel of Springfield, who previously had treated their daughter.
Following conferences by the doctor with both plaintiff and his wife, plaintiff entered St. John's Hospital at Springfield, Missouri, on June 3, 1961, for a complete physical examination. Numerous tests and procedures were utilized, as a result of which Dr. Jorel found no physical ailments. Dr. Jorel then discussed with plaintiff a need for psychiatric examination and arranged for defendant, Dr. William F. Clary, to examine and talk to plaintiff and evaluate him for psychiatric help. Dr. Clary testified that this examination was made and, among other things, related that plaintiff charged his wife with infidelity but in their conversation had no evidence or basis for such charge, and the doctor was convinced that this was a figment of his imagination. Dr. Clary's diagnosis was that plaintiff was a paranoid schizophrenic, and he recommended to plaintiff that he have both electric and insulin shock therapy. Plaintiff at that time said that he would think about the matter of such treatment, and Dr. Clary said he would talk further to Dr. Jorel. Thereafter, Dr. Clary talked to Dr. Jorel of his diagnosis and recommendation, and also talked to plaintiff's wife. She testified that Dr. Clary told her that plaintiff was a very sick man, that he needed treatment, but Dr. Clary didn't think plaintiff would submit thereto himself. She said that Dr. Clary suggested that they see if they could talk plaintiff into taking the treatment and if not that proceedings be started to force the treatment since he thought plaintiff was that sick. Meanwhile, plaintiff talked to his wife and to Dr. Jorel and plaintiff told him that he wanted to take the treatment and would take it willingly. Subsequently, Dr. Clary had a second conversation with plaintiff about coming down to the psychiatry section and having a course of electric shock and insulin therapy.
With respect to the information given by Dr. Clary to plaintiff in these conversations as to the nature of the treatment and the risks involved, plaintiff offered in evidence certain statements of the defendant given in an earlier deposition. That testimony was as follows:
'Q. When you talked to him previous to the moving down to psychiatry and signing the release, did you tell him what the possible effects of insulin shock therapy might be?
'A. I told him it would put him to sleep, I told him there was risks involved, I told him the same thing about electric shock therapy. I didn't belabor the point, I told him it was risky because this guy was real shook, but I told him it was risky, and he had no questions.
'Q. Did you tell him it might possibly result in his death?
'A. I implied it. In talking about the anesthetic, I said people take anesthetic, and there are hazards. Some people overreact to anesthetics, and insulin, I told him, it is like being put to sleep, there are risks involved. In terms of specifically telling him, 'This can kill you,' no, sir, I didn't.
'Q. Did you tell him it might possibly result in a delayed awakening, possible brain damage?
Dr. Clary testified that he thought the plaintiff had the mental capacity at least to understand the ordinary affairs of life, understand what the treatment really was and what it might do to him. He again related what he had told plaintiff and stated that he tried to explain it to him on a level he would understand, and he thought plaintiff knew exactly what he was getting into. At the second conference between Dr. Clary and plaintiff, the latter agreed to take whatever treatment Dr. Clary recommended.
Accordingly, on June 9, 1961, a nurse in the psychiatric ward presented to plaintiff a form of 'Consent to Shock Therapy.' It read as follows: 'I (We) hereby request and authorize Dr. Clary and whomever he may designate to assist him, to administer insulin and/or electroshock therapy to Mr. Aiken; and to continue to administer such therapy and such other supplemental treatment as he may deem advisable from time to time. The effect and nature of shock and/or insulin treatment have been fully explained to me (us), as well as the hazards involved. Notwithstanding the fact that there are risks to the patient inherent in this treatment, I (we) voluntarily accept the risks involved. No assurance has been made by anyone with respect to the results that may be obtained. I have been given a copy of the pamphlet 'Information to Relatives." The nurse testified that she did not explain anything about the dangers involved in the therapy when she presented the consent for signature. The plaintiff read the consent in her presence and she asked him if he had any questions, but he had none and he signed the consent.
Beginning on June 12, 1961, and continuing through June 22, 1961, plaintiff was given a series of shock treatments which involved insulin in increasing amounts of from 40 to 260 units. On June 22, 1961, plaintiff went into a deep coma. He suffered a delayed awakening from the insulin and did not respond to the procedures used for the purpose of bringing the patient out of the coma. A specialist in internal medicine was called in and plaintiff was transferred to the intensive care unit but the coma was prolonged and as a result plaintiff suffered brain damage.
Dr. Robert L. Lam, M.D., a specialist in neurology and psychiatry, testified for plaintiff that from an examination made by him at the Veterans Hospital in Little Rock, Arkansas, on January 16, 1964, his opinion was that plaintiff had severe organic brain damage, that he was totally incapacitated in terms of employment and that his condition was permanent as a result of the prolonged insulin coma. Plaintiff was still in the Veterans Hospital at the time of trial.
Dr. Lam was interrogated as to dangers in insulin shock therapy and he testified that the possible dangers or complications thereof are coma and death or prolonged coma resulting in various degrees of brain damage, or that there might be the production of epilepsy or localized paralysis, or there might be a vascular disturbance. In addition, he said that with convulsions that may occur one could have fractures of certain types, either of the vertebrae or the extremities. The doctor was not asked and did not undertake to testify as to the frequency of occurrence of such events, or any of them, and said that no doctor could predict which patient would be the one to have trouble, saying, 'So that the only thing one can say is that, when one has a patient getting deep coma insulin, that there is a possibility that this could occur.' Dr. Lam also testified that there was nothing improper in the administration of the insulin shock therapy and that the administration thereof was according to good medical practice. Dr. Lam was not asked about the adequacy of defendant's disclosures to plaintiff.
On this question of the dangers from insulin shock therapy, the plaintiff also offered a portion of a deposition of the defendant, as follows:
'Q. Doctor, would you characterize insulin shock therapy as a procedure that...
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