Beattie v. Thomas, No. 14006

Docket NºNo. 14006
Citation668 P.2d 268, 99 Nev. 579
Case DateAugust 31, 1983
CourtSupreme Court of Nevada

Page 268

668 P.2d 268
99 Nev. 579
Chris BEATTIE, a single man, Appellant,
v.
William H. THOMAS, M.D., James D. Pitts, M.D., licensed
health care providers; MedaSonics, Inc., Respondents.
No. 14006.
Supreme Court of Nevada.
Aug. 31, 1983.
Rehearing Denied Oct. 18, 1983.

[99 Nev. 580]

Page 270

Durney, Guinan & Brennan, Reno, for appellant.

Gary G. Bullis, Ltd., Reno, for respondents Thomas and Pitts.

Leggett & Hamilton, Reno, for respondent MedaSonics, Inc.

[99 Nev. 582] OPINION

MOWBRAY, Justice:

In this medical malpractice and products liability suit, Beattie appeals from an order of the district court denying him a new trial and awarding respondents Thomas and Pitts $29,700 in attorney's fees. While we disagree with appellant's assertions regarding error during trial, we hold that, by awarding Drs. Thomas and Pitts all of their requested attorney's fees pursuant to NRCP 68 without analyzing on the record the factors relevant to such a decision, the district court abused its discretion. The court also erred in requiring appellant to pay the cost of including certain portions of the trial transcript in the record on appeal. We therefore affirm in part and reverse and remand in part for a redetermination on the record of the amount of attorney's fees to be awarded, the redetermination to accord with the factors set forth in this opinion.

THE FACTS

On May 18, 1978, appellant Beattie was seriously injured in a motorcycle accident. He was admitted to Carson-Tahoe Hospital with a dislocated right knee, considerable tissue damage in and around the knee, and a transected popliteal artery. The popliteal artery is the principal artery to the lower leg. Within a reasonably short time after Beattie was admitted, respondents Dr. Thomas and Dr. Pitts successfully completed an anastomosis of the popliteal artery, sewing the ends of the artery back together and restoring blood flow to the lower leg. Dr. Thomas also made an incision, known as a fasciotomy, in one of the muscle compartments of the leg, to relieve pressure on the leg's arteries caused by internal swelling. An orthopedic surgeon then repaired the major structural damage to the knee.

An instrument known as a hand-held Doppler, manufactured by respondent MedaSonics, was used both during the operation and frequently during the post-operative period to check for pulses indicating restored blood flow. The Doppler is a noninvasive electronic diagnostic instrument used, among other things, to detect the presence and velocity of blood flow when for one reason or another a pulse cannot be detected manually. The instrument is very sensitive, and can pick up pulses when the blood pressure is very low. Without the use of a blood pressure cuff to take pressure readings, the Doppler cannot indicate the volume of circulation, but only the presence of some circulation. The doctors at Carson-Tahoe Hospital did not use the Doppler in conjunction with a pressure cuff in Beattie's case.

[99 Nev. 583] For the first few days following the surgery, Beattie appeared to be recuperating favorably. Then, on or around May 22, the condition of his leg began to deteriorate. Dr. Thomas suspected that blood clots in the veins of the leg were interfering with circulation, and began heparin therapy to reduce clotting. Beattie's condition seemed

Page 271

to improve temporarily, but again worsened following Dr. Thomas' departure on the 26th. Dr. Pitts eventually performed a second fasciotomy on the 28th in an attempt to restore circulation to Beattie's deteriorating leg.

On May 29th, Beattie was transferred at his parent's request to Stanford University Hospital. After further fasciotomies and debridement of dead tissue, Beattie's leg was amputated below the knee on June 7th.

Beattie filed suit against respondents on April 25, 1980, alleging that Drs. Thomas and Pitts were negligent in their care and treatment of him. He also alleged that the Doppler blood flow monitor manufactured by MedaSonics, Inc. was defective in that MedaSonics failed to provide adequate instructions or warnings concerning the use and limitations of the Doppler. Ultimately, the jury found against Beattie and for all respondents. The district court denied Beattie's motion for a new trial, and awarded $29,700 in attorney's fees to respondents Thomas and Pitts under NRCP 68. At the request of Drs. Thomas and Pitts, the district court also required Beattie to pay for inclusion of the opening statements and final arguments of counsel in the record on appeal. This appeal followed.

APPELLANT'S PROPOSED INFORMED CONSENT INSTRUCTION

Appellant contends that the district court erred in refusing to give a proposed jury instruction on informed consent. He argues that the instruction was justified by evidence that Drs. Thomas and Pitts did not discuss with him or his parents the possibility of early amputation to save more of his leg.

A party is entitled to have the jury instructed on all of his theories of the case that are supported by the evidence. See American Cas. Co. v. Propane Sales & Serv., 89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); Rocky Mtn. Produce v. Johnson, 78 Nev. 44, 52, 369 P.2d 198, 202 (1962). In addition to being supported by evidence, the requested instruction must be consistent with existing law. Federal Ins. Co. v. Public Service Co., 194 Colo. 107, 570 P.2d 239, 242 (1977). If the other instructions given to the jury adequately cover the subject of the requested instruction, or if there is no proof in the record to support the [99 Nev. 584] instruction, the trial court should not give it. Village Development Co. v. Filice, 90 Nev. 305, 312, 526 P.2d 83, 87-88 (1974). See Watters v. Querry, 626 P.2d 455, 458 (Utah 1981).

Appellant's proposed instruction varies from the traditional and perhaps still majority view of informed consent. Under the traditional view, the physician's duty to disclose is measured by a professional medical standard, which the plaintiff must establish with expert testimony. The standard is either the customary disclosure practice of physicians in the relevant "community," or what a reasonable physician would disclose under the circumstances. Annot., 88 A.L.R.3d 1008, 1011-12 (1978). See Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1107 (1963). Insofar as we have considered standards of care for the medical profession, our holdings have been consistent with the traditional view. See, e.g., Orcutt v. Miller, 95 Nev. 408, 411, 595 P.2d 1191, 1193-94 (1979). In addition, the Nevada Legislature has seen fit to enact a general rule requiring plaintiffs to demonstrate the alleged negligence of a physician with expert testimony. See NRS 41A.100(1). 1 Appellant does not explain why this statutory rule does not apply. Moreover, he fails to direct us to sufficient expert testimony in the record to support an informed consent instruction under the rule. For these reasons, the district court

Page 272

did not err in refusing appellant's informed consent instruction.

THE PROPOSED "INCREASED RISK OF HARM" INSTRUCTION

Beattie attempted to show at trial that MedaSonics, Inc. had not adequately communicated to the users of the Doppler the inability of the machine, when used without a pressure cuff, to determine whether blood flow is adequate to sustain tissue life. The requested instruction on the concept of increased risk of harm was an attempt by Beattie to lighten his burden of showing that MedaSonic's breach, if any, of its duty to warn was a proximate cause of the eventual high amputation of Beattie's leg.

The requested instruction closely follows the language of [99 Nev. 585] Section 323 of the Restatement (Second) of Torts. 2 This section by its terms relates only to the rendering of services, and the comment on the section makes the focus on services clear. Appellant cites no authority indicating that...

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195 practice notes
  • Apodaca v. AAA Gas Co., No. 22
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 11, 2003
    ...but see Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804, 805-06 (1988); Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268, 274 (1983). When a judgment is entered in the defendant's favor, the proper relief is found under Rule 1-054. Accordingly, we......
  • K-Mart Corp. v. Washington, K-MART
    • United States
    • Nevada Supreme Court of Nevada
    • December 30, 1993
    ...the jury instructed on all of its theories of the case that are supported by evidence and consistent with existing law. Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983). However, where the instructions given adequately cover the applicable law, it is not error to refuse to give......
  • Shuette v. Beazer Homes Holdings Corp., No. 41611.
    • United States
    • Nevada Supreme Court of Nevada
    • December 15, 2005
    ...court's order awarding attorney fees and remanding the issue to be evaluated under the Brunzell factors); see also Beattie v. Thomas, 99 Nev. 579, 589, 668 P.2d 268, 274 (1983) (noting that it is an abuse of discretion to award the full amount of requested attorney fees without making "find......
  • Hallmark v. Eldridge, No. 46722.
    • United States
    • Nevada Supreme Court of Nevada
    • July 24, 2008
    ...and his limited publications were not sufficient on this record to justify admission of the proffered opinions. 34. See Beattie v. Thomas, 99 Nev. 579, 586, 668 P.2d 268, 273 (1983) (noting that an error in the admission of evidence is prejudicial if the error "so substantially affected [th......
  • Request a trial to view additional results
195 cases
  • Apodaca v. AAA Gas Co., No. 22
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 11, 2003
    ...but see Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804, 805-06 (1988); Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268, 274 (1983). When a judgment is entered in the defendant's favor, the proper relief is found under Rule 1-054. Accordingly, we......
  • K-Mart Corp. v. Washington, K-MART
    • United States
    • Nevada Supreme Court of Nevada
    • December 30, 1993
    ...the jury instructed on all of its theories of the case that are supported by evidence and consistent with existing law. Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983). However, where the instructions given adequately cover the applicable law, it is not error to refuse to give......
  • Shuette v. Beazer Homes Holdings Corp., No. 41611.
    • United States
    • Nevada Supreme Court of Nevada
    • December 15, 2005
    ...court's order awarding attorney fees and remanding the issue to be evaluated under the Brunzell factors); see also Beattie v. Thomas, 99 Nev. 579, 589, 668 P.2d 268, 274 (1983) (noting that it is an abuse of discretion to award the full amount of requested attorney fees without making "find......
  • Hallmark v. Eldridge, No. 46722.
    • United States
    • Nevada Supreme Court of Nevada
    • July 24, 2008
    ...and his limited publications were not sufficient on this record to justify admission of the proffered opinions. 34. See Beattie v. Thomas, 99 Nev. 579, 586, 668 P.2d 268, 273 (1983) (noting that an error in the admission of evidence is prejudicial if the error "so substantially affected [th......
  • Request a trial to view additional results

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