Allman By and Through Watters v. Holleman
| Decision Date | 15 July 1983 |
| Docket Number | No. 54015,54015 |
| Citation | 233 Kan. 781,667 P.2d 296 |
| Parties | Amy Jo ALLMAN and Shane Alan Allman, By and Through their next friend and guardian, Milton R. Watters, and Milton R. Watters, individually, and as Executor of the Estate of Linda Allman, deceased, Appellants, v. James F. HOLLEMAN, Jr., Rolando R. Mesina, John B. Cotter, and Emergency Physicians, Inc., a professional corporation, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A party is entitled to an instruction explaining his theory of the case where evidence is introduced in support thereof.
2. An appellate court's task is to determine whether, when considered as a whole, the jury instructions properly and fairly state the law as applied to the facts of the case. If they do and the jury could not reasonably be misled by them, the instructions should be approved on appeal.
3. Negligence is the lack of ordinary care.
4. A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which the claim is made.
5. A negligent act is the proximate cause of an injury only when the injury is the natural and probable consequence of the wrongful act.
6. Except as otherwise required by statute or constitution, all relevant evidence is admissible.
7. Pecuniary loss in a wrongful death action refers to the reasonable expectation of pecuniary benefit from the continued life of the deceased, to be inferred from proof of assistance by way of money, services, or other material benefits rendered prior to death.
8. The collateral source rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.
Dwight A. Corrin, of Michaud, Cordry, Michaud, Hutton & Hutton, Chartered, Wichita, argued the cause and Richard D. Cordry, Wichita, of the same firm, was with him on the briefs for appellants.
Darrell L. Havener, of Watson, Ess, Marshall & Enggas, of Kansas City, Mo., argued the cause and John J. Bukaty, Sr., of Bukaty & Bukaty, Kansas City, was with him on the brief for appellees James F. Holleman, Jr. and Rolando R. Mesina.
Ronald C. Newman, of Mustain & Newman, Chartered, of Kansas City, argued the cause and was on the brief for appellees John B. Cotter and Emergency Physicians, Inc.
This is an appeal from a jury verdict in a medical malpractice action.
Linda Allman was a 28-year-old widow and the mother of two children. In an effort to control her weight she consulted James F. Holleman, Jr., an osteopathic physician. At the time of the initial consultation, April 2, 1975, Linda was taking Ovulen-21, a birth control pill. She informed Dr. Holleman she also had taken tranquilizers and was taking thyroid medication. She reported she suffered from sluggishness, shortness of breath, and frequent headaches. Dr. Holleman placed her on a weight reduction program in which she would return to his office every week to be weighed and given a vitamin injection. This procedure was performed by a nurse. Every fourth week Linda would be examined by Dr. Holleman.
Linda saw Dr. Holleman again on April 30 and May 28. The weight reduction program appeared to be working. During the May 28th visit, however, Linda complained of being nervous. Dr. Holleman noticed she had a slightly elevated pulse rate. He placed her on stronger tranquilizers to try and control her anxiety.
After May 28, 1975, Linda stopped coming to Dr. Holleman's office for her weekly visits. She did not see Dr. Holleman personally until July 7, 1975, approximately one week later than her scheduled appointment. During the July 7 visit she related to Dr. Holleman she was suffering from chest pains so sharp they made her cry. She also complained of pain and tenderness in the stomach area. The chest pains had been present for approximately two weeks; the stomach discomfort had increased over the previous four days. However, she indicated there had been no recent trauma to the abdominal area. Finally, she reported two instances of dark stools.
That same day, July 7, 1975, Ms. Allman was admitted to Providence-St. Margaret Hospital for diagnostic tests. Although Dr. Holleman felt the tests could have been performed on an outpatient basis, Ms. Allman insisted on admission to the hospital. Dr. Holleman commenced tests and Rolando R. Mesina, a medical doctor employed by Dr. Holleman, was called in for consultation after which Dr. Mesina undertook the primary care of Ms. Allman. After several days of tests, on July 13, 1975, Dr. Mesina performed an abdominal paracentesis and found blood in the abdominal cavity. Exploratory surgery was performed and a ruptured spleen was discovered and removed. After surgery, the patient was transferred to the intensive care unit. By the following morning, July 14, 1975, Ms. Allman had developed pulmonary edema, a condition in which the lung tissue retains too much fluid causing the patient to have respiratory problems. Dr. Sherman Zaremski was contacted in consultation and he intubated Ms. Allman with an endotracheal tube, a device placed through the throat and vocal cords into the trachea. This tube was then connected to a ventilator which assisted Ms. Allman's respiration.
During the afternoon of July 16, 1975, Ms. Allman struggled against the discomfort of the endotracheal tube. At about 6:40 p.m. that evening she succeeded in dislodging the tube. Dr. John Cotter was then called from the hospital emergency room. He reinserted the tube. After making sure everything was satisfactory Dr. Cotter returned to the emergency room. Shortly thereafter the tube became dislodged again. This discovery was made by Dr. Michael Boggan as he walked by Linda's room after seeing one of his patients. She was cyanotic and had a slow heart rate. Dr. Boggan was too late. His efforts to revive Ms. Allman were unsuccessful and she died.
This action was brought on behalf of Amy and Shane Allman, minor children of Linda Allman, by their grandfather and guardian, Milton Watters, for the alleged wrongful death of their mother. Mr. Watters, as executor of the estate of Linda Allman, also brought his own action for the conscious pain and suffering of the decedent. The total amount of damages sought was $775,000. Initial defendants included Doctors Holleman, Mesina, Cotter and Zaremski; two anesthesiologists; a nurse anesthetist and "Anesthesiology Chartered"; Providence-St. Margaret Health Center; Emergency Physicians, Inc.; and G.D. Searle and Company, the makers of Ovulen-21. The nurse anesthetist was dismissed; the anesthesiologists and "Anesthesiology Chartered" settled for $40,000; Providence-St. Margaret Health Center settled for $65,000; G.D. Searle and Company settled for $10,000; and Dr. Zaremski settled for $40,000.
Trial lasted from September 14 to 30, 1981. The jury found the total amount of damages sustained by the plaintiffs was $150,000. Fault was apportioned as follows:
a. Dr. James F. Holleman, Jr. and Dr. Rolando
Mesina .................................... 11%
b. Dr. John B. Cotter and Emergency
Physicians, Inc............................. 0%
c. Linda Allman ................................ 40%
d. Providence-St. Margaret Health Center ....... 49%
e. Dr. Sherman C. Zaremski ...................... 0%
f. Dr. Archibald O. Tetzlaff .................... 0%
g. Searle & Company ............................. 0%
Plaintiffs appeal.
Appellants first argue the trial court erred in submitting the fault of Linda Allman to the jury. The trial court instructed the jury on the appellants' theory of the case. They alleged appellees Holleman and Mesina were negligent in the following respects.
The jury was also instructed on the appellants' allegations that Dr. Cotter was negligent in the manner in which he reinserted the endotracheal tube after Linda Allman had dislodged it. Then, over appellants' objection, the trial court instructed the jury as follows:
It is undisputed a party is entitled to an instruction explaining his theory of the case where evidence is introduced in support thereof. Shawnee Township Fire District v. Morgan, 221 Kan. 271, 277, 559 P.2d 1141 (1977). An appellate court's task is to determine whether, when considered as a whole, the jury instructions properly and fairly state the law as applied to the facts of the case. If they do, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal. Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 601, 545 P.2d 334 (1976). See also Timsah v. General Motors Corp., 225 Kan. 305, 315, 591 P.2d 154 (1979). The controversy here is over the question of whether evidence was...
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