Atkins v. Strayhorn

• Decision Date: 19 September 1990
• Docket Number: No. D008995,D008995
• Citation: Atkins v. Strayhorn, 223 Cal.App.3d 1380, 273 Cal.Rptr. 231 (Cal. App. 1990)
• Court: California Court of Appeals
• Parties: Owren B. ATKINS, Jr., et al., Plaintiffs and Appellants, v. Eugene H. STRAYHORN, Jr., et al., Defendants and Appellants.

Page 231

273 Cal.Rptr. 231

223 Cal.App.3d 1380

Owren B. ATKINS, Jr., et al., Plaintiffs and Appellants, v. Eugene H. STRAYHORN, Jr., et al., Defendants and Appellants.

No. D008995.

Court of Appeal, Fourth District, Division 1, California.

Sept. 19, 1990.

[223 Cal.App.3d 1385] Sheldon Deutsch, San Diego, for plaintiffs and appellants.

Ault, Deuprey, Jones, Danielson and Gorman, Dan H. Deuprey, San Diego; Greines, Martin, Stein & Richland, Alan G. Martin, Kent L. Richland and Sheila S. Kato, Beverly Hills, for defendants and appellants.

Horvitz & Levy, Daniel J. Gonzalez and S. Thomas Todd, Encino, as amici curiae on behalf of defendants and appellants.

HUFFMAN, Associate Justice.

Defendants Eugene H. Strayhorn, Jr., M.D., and his professional corporation, Eugene H. Strayhorn, M.D., Inc. (together Strayhorn), appeal a judgment in favor of plaintiffs Owren B. Atkins, Jr., and Eileen L. Atkins (together Atkinses ¹) on Atkinses' complaint for professional negligence. Strayhorn contends the court erred in (1) allowing Atkinses to exploit an informed consent theory of liability and to offer as expert testimony the opinion of a physician unqualified in emergency room care, (2) failing to reduce the verdict under CIVIL CODE SECTION 3333.2² before applying the jury's comparative fault finding, (3) failing to apply a single $250,000 noneconomic damages limit to this case, and (4) disregarding the jury's finding of life expectancy.

Atkinses cross-appeal from an order denying them prejudgment interest on $270,000 as well as expert witness fees and other costs. They contend because Owren received a more favorable judgment than his statutory settlement offer, he is entitled to prejudgment interest and expert witness fees.

We affirm both as to the issues on the appeal and the cross-appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Just before midnight on June 20, 1983, 69-year-old Owren was taken by ambulance to the emergency room of Tri-City Hospital with a chief complaint of shaking, paleness, nausea and a history of diabetes. Owren's left toes were slightly purple. Dr. M. Kent LeMarie, the emergency room physician, examined Owren and ordered a blood count and cultures, an EKG and other tests. When Dr. LeMarie found no source of infection to explain Owren's fever, he requested a consultation with Strayhorn, the internal medicine specialist on call that night. Although the results of the blood count showed a mildly elevated white blood cell count with a "shift to the left," ³ possibly indicating a bacterial infection, Strayhorn concluded Owren had a viral infection. At about 3 a.m. Strayhorn told Eileen her husband had the flu and could go home but scheduled a follow-up appointment at his office for 10:15 a.m. Although Owren went home, the emergency room record, signed by Dr. LeMarie, indicates he was admitted to the hospital, room 304B.

At Owren's request, Eileen cancelled the appointment with Strayhorn. When Owren's condition deteriorated during the day, he returned to the emergency room at Tri-City Hospital. X-rays showed a piece of glass embedded in his foot and a blood culture revealed streptococcus, a strain of bacterial infection. Owren was admitted to the hospital but antibiotics failed to stop the infection. Gangrene set in, necessitating the amputation of his leg below the knee.

Atkinses sued Strayhorn for professional negligence. After trial, the jury returned a special verdict, finding Strayhorn was negligent and his negligence contributed to the loss of Owren's leg. However, the jury also found Owren was 45 percent at fault. The jury awarded damages of $200,000 for past pain and suffering, $240,000 for future pain and suffering (with a present value of $193,600) and $51,600 for future medical care (with a present value of $41,624). The jury found Owren had a life expectancy of six years. The jury also found in favor of Eileen on her loss of consortium claim, but found she was 20 percent at fault and awarded her damages of $32,000 for past loss of consortium and $38,400 for future loss of consortium (with a present value of $30,976).

After two post-verdict hearings, the trial court entered judgment in favor of Owren for $110,000 in a lump sum and periodic payments over a four-year period totaling $160,380. The court also entered judgment in favor of Eileen for $63,478.80 ($50,380.80 plus $13,098 in prejudgment interest).

DISCUSSION

STRAYHORN'S APPEAL

I

Strayhorn contends the court erred in allowing Atkinses to exploit an "informed consent" theory of liability. He further contends the court erred in permitting Dr. Davidson, an internal medicine specialist, to testify as an expert regarding emergency room standards of care. ⁴ He claims these errors were prejudicial, requiring reversal of the judgment.

A

Strayhorn asserts Atkinses improperly argued he had a duty to disclose the risks and benefits of sending Owren home from the hospital without intravenous antibiotics to treat a bacterial infection, a condition Strayhorn did not believe Owren had. In support of this assertion, Strayhorn relies on Scalere v. Stenson (1989) 211 Cal.App.3d 1446, 260 Cal.Rptr. 152.

In Scalere, the plaintiff had undergone an angiogram and later complained of discomfort in her arm. Defendant physician examined her arm and, concluding it was progressing satisfactorily, never informed her about nor recommended any further diagnostic tests or therapy. (Scalere v. Stenson, supra, 211 Cal.App.3d at p. 1448, 260 Cal.Rptr. 152.) Plaintiff later underwent surgery on her arm with resulting damage and sued defendant for medical negligence. At trial, plaintiff sought to establish liability on the theory of ordinary negligence as well as the defendant's failure to disclose material facts necessary for her to properly evaluate her condition and seek appropriate post-operative care. However, the court refused plaintiff's request for a jury instruction on duty to disclose. The jury returned a verdict in favor of defendant and plaintiff appealed. (Id. at p. 1449, 260 Cal.Rptr. 152.)

On appeal, the court held the trial court properly refused plaintiff's proposed instruction on duty to disclose. After discussing several cases addressing a physician's duty to disclose, the court concluded defendant "proposed no postsurgery therapy and therefore did not require [plaintiff's] informed (or uninformed) consent to any such therapy." (Scalere v. Stenson, supra, 211 Cal.App.3d at p. 1450, 260 Cal.Rptr. 152.) However, the court further concluded plaintiff " 'was not without an appropriate legal theory under which she might recover damages. Negligent failure to advise a patient to pursue a potentially necessary course of treatment is actionable under ordinary medical negligence standards.' " (Id. at p. 1453, 260 Cal.Rptr. 152, citing Jamison v. Lindsay (1980) 108 Cal.App.3d 223, 231, 166 Cal.Rptr. 443; italics added.)

Here, Dr. Strayhorn did not inform Atkinses of the risks and benefits of not treating a bacterial infection because he ruled out such diagnosis. Thus, the court properly rejected Atkinses' proposed instruction on informed consent. (Scalere v. Stenson, supra, 211 Cal.App.3d at p. 1453, 260 Cal.Rptr. 152.) Nevertheless, the court properly allowed testimony and counsel's argument under a theory of ordinary medical negligence based on Dr. Strayhorn's failure to correctly diagnose Owren's condition and consequently to advise Atkinses "to pursue a potentially necessary course of treatment." (Jamison v. Lindsay, supra, 108 Cal.App.3d at p. 231, 166 Cal.Rptr. 443.)

In this regard, Atkinses' counsel questioned Dr. Strayhorn:

"Q. But you didn't tell them about a possible foreign object, did you?

"A. No, sir.

"Q. You didn't tell them about bacteremia?

"A. No, sir.

"Q. You didn't tell them about septicemia?

"A. No, sir.

"Q. You didn't tell them that you considered I.V. antibiotics because he may have septicemia and he was a diabetic, right?

"[STRAYHORN'S COUNSEL]: Objection. Assumes facts not in evidence as to that point in time, Your Honor.

"THE COURT: Well, I'm going to overrule it, because he told us what he did tell them.

"A. I didn't discuss antibiotics with Mr. Atkins.

"Q. You didn't tell him anything about the risks of going home without I.V. antibiotics, did you?

"A. No, sir."

During closing argument, Atkinses' counsel told the jury:

"[Owren] was not given a choice as to whether or not to be hospitalized or be given I.V. antibiotics. There is such a thing as informed consent. A doctor has the duty to disclose all relevant factors, all relevant factors, so that somebody, the patient, can make an intelligent choice as to what to do with his or her body. In this case, [Owren] was not given a choice.

"Dr. Strayhorn said he did not discuss bacteremia, septicemia, did not discuss C.B.C.'s or any of those things with the family and did not tell them that he thought about hospitalization or anything of that nature. How can this be contributory negligence?"

In order to show Strayhorn breached his duty of care in failing to properly diagnose Owren's condition and timely admit him to the hospital for appropriate treatment, Atkinses were entitled to pursue this line of questioning and argue it to the jury. This is especially true in light of the testimony presented at trial showing the medical evidence was consistent with a bacterial infection necessitating admission to the hospital and intravenous antibiotics. Moreover, counsel's argument on informed consent was made in the context of whether Owren was contributorily negligent in agreeing to leave the hospital without further treatment. Thus, the court properly allowed Atkinses to argue this theory to the jury.

B

One of Atkinses' expert witnesses was Dr. Meyer Davidson, a specialist in internal medicine and endocrinology. When Atkinses' counsel asked Dr. Davidson whether the standard of care in this case required that Owren receive intravenous antibiotics before being released from the...