Cox v. Lund

Decision Date21 May 1985
Docket NumberNo. 22358,22358
Citation334 S.E.2d 116,286 S.C. 410
CourtSouth Carolina Supreme Court
PartiesAnnie Reeves COX, as Administratrix of the Estate of Paul Leslie Cox, Deceased, Respondent, v. Dr. Carl McHenry LUND, M.D., Appellant. . Heard

H. Grady Kirven of Warkins, Vandiver, Kirven, Gable & Gray, Anderson, for appellant.

Michael Parham of Abrams, Bowen & Parham, Greenville, for respondent.

CHANDLER, Justice:

Dr. Carl McHenry Lund (Dr. Lund) appeals from medical malpractice jury verdicts awarded Respondent Administratrix (plaintiff Wife) for the death of her husband, Paul Leslie Cox (Cox), in actions brought pursuant to the survival and wrongful death statutes and tried together.

We affirm.


On February 14, 1980, Cox was admitted to Anderson Memorial Hospital complaining of pain in his upper abdomen, for which Dr. Lund and other physicians undertook to diagnose the cause.

On February 28, Dr. Lund ordered a barium x-ray study, which revealed the presence of a polyp in the colon. Because of the possibility that the polyp was cancerous Dr. Lund, with Cox's permission, decided to carry out a relatively new exploratory procedure known as colonoscopy.

Colonoscopy involves the insertion into the rectum and through the colon of a tubular instrument called a colonoscope, on the front end of which is a light that enables the physician to make direct visual observation of polyps or other abnormalities in the colon. The colonoscope is also capable of excising and retrieving small polyps for laboratory analysis. When accomplished successfully, the procedure substitutes for traditional radical exploratory surgery which requires long periods of hospitalization.

All medical witnesses at trial emphasized that colonoscopy should be commenced only after verification that the bowel is free of feces or other matter obstructing These imperatives are mandated by the danger and risk of perforation of the colon with consequent spilling into the abdominal cavity of contamination-causing foreign matter.

visibility and, further, that the procedure be aborted immediately if visibility becomes obscured or resistance to advancement of the colonoscope occurs.

After disclosure of the polyp on the February 28 barium x-ray Dr. Lund scheduled a colonoscopy examination of Cox for March 10. According to Dr. Lund he abandoned the procedure when he observed "muddy water" and "pools of liquid stool." He testified "... and I quit because even the liquid at that stage, there was too much volume to do anything with it. We sent him back to the floor."

The colonoscopy was resumed at 1:20 p.m. the following day, March 11. At 1:35 the procedure was again aborted, but, unfortunately, not before a perforation of the colon had occurred. Dr. Lund testified, "The second attempt to engage and very gently turn the corner and muddy water again and I quit,--backed out. And I knew I wasn't going to do a polypectomy (excision of the polyp) in that setting anyway." [Parenthesis supplied].

Dr. Lund, sensing from the distention of Cox's abdomen that a complication had occurred, promptly obtained x-rays which revealed a perforation of the colon. He immediately called in Dr. Donald Roberts, a general surgeon, to repair the puncture.

In the course of this surgery it was necessary that Dr. Roberts, by irrigation and suction, remove from the abdominal cavity feces, liquid stool and residual barium which had spilled into it from the colon.

Thereafter, Cox's condition, despite intensive antibiotic therapy, deteriorated and on April 12 he died from complications of the emergency surgery which, in turn, was necessitated by the colon perforation.


Dr. Lund contends the trial judge:

(1) Improperly instructed the jury as to plaintiff's burden of proof on the issue of negligence in a malpractice suit.

(2) Improperly included in his jury charge the "common knowledge" exception.

(3) Improperly instructed on the meaning of circumstantial evidence as to the issues in this case.

(4) Improperly denied his n.o.v. and new trial motions, made on the ground that plaintiff's expert testimony was based upon facts not substantiated by the evidence.


Dr. Lund bases this contention upon the alleged failure of the plaintiff Wife to present evidence satisfying the two prong test in medical malpractice suits, to wit, that the plaintiff must:

(1) Present evidence of the generally recognized practices and procedures which would be exercised by competent practitioners in a defendant doctor's field of medicine under the same or similar circumstances, AND

(2) Present evidence that the defendant doctor departed from the recognized and generally accepted standards, practices and procedures in the manner alleged by the plaintiff.

There was no dispute in the medical testimony of both parties that colonoscopy should not be performed unless the colon and bowel are first evacuated of feces or other matter. A critical issue in the trial, therefore, was the factual determination of the condition of Cox's bowel and colon at the commencement of the procedure.

Dr. David Falkenstein, an expert in gastroenterology and a witness for the plaintiff Wife, testified that Cox's colon was totally unprepared and, accordingly, colonoscopy should not have been carried out in a non-urgent situation:

Q. And from what standard did he deviate?

A. Upon my review of the chart, and in an analysis of this perforation, and from all I've read here in the materials in the chart, I believe that Dr. Lund deviated from well-accepted standards of care in that he persisted to attempt examination of the colon in a nonurgent situation when it was established, that, again, the colon was totally unprepared for the examination to be contemplated done on that morning. [Emphasis supplied].

Dr. Falkenstein's opinions were based upon his study of relevant medical charts and an x-ray of Cox taken on March 17, six days after the March 11 perforation and emergency surgery. He testified that the March 17 x-ray showed that on March 11 not only feces, but also barium, residual from the earlier barium x-ray study of February 28, was present in Cox's bowel:

A. On March 17th, 1980 there remains a considerable quantity of residual barium in the bowel and in my review of the chart very carefully that barium had been put there way back on February 28th when a barium enema examination was performed.

... In my mind and my opinion, and with reasonable assuredness, on March 11th, 1980 there was both feces and yet even more barium present in the bowel; barium that should have been immediately recognizable certainly under fluoroscopic examination because you brought that up and referred me to that previous testimony of the radiologist. [Emphasis supplied].

Moreover, and supporting Dr. Falkenstein's testimony, Dr. Edward Warren, a specialist in radiology, testified that the presence of barium in Cox's colon could have been readily discovered by simply scanning the abdomen with a fluoroscope. Failure to rule out its presence was evidence of negligence for, in the words of Dr. Falkenstein, "Barium is the endoscopist's enemy."

The foregoing witness testimony and documentary evidence constitute a record addressing both prongs of the proof or evidence requirements in medical malpractice actions in South Carolina and other state jurisdictions, as well as courts in the Federal system.

Upon that record the trial judge in his charge first defined the meaning of...

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25 cases
  • Washington v. Whitaker
    • United States
    • South Carolina Supreme Court
    • February 16, 1994
    ...301 (2d Cir.1983); Hill, supra. Jury instructions must be read in light of the entire charge and the facts of the case. Cox v. Lund, 286 S.C. 410, 334 S.E.2d 116 (1985). Under the facts here, Appellants were not entitled to the requested AFFIRMED. FINNEY, TOAL and MOORE, JJ., concur. BRUCE ......
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    ...or a similar community. E.g., Barber v. Superior Court of California, 147 Cal.App.3d 1006, 195 Cal.Rptr. 484 (1983); Cox v. Lund, 286 S.C. 410, 334 S.E.2d 116 (1985); see Lee v. State Board of Dental Examiners, 654 P.2d 839 (Colo.1982); Artist v. Butterweck, 162 Colo. 365, 426 P.2d 559 (196......
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    • United States
    • South Carolina Court of Appeals
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    ...a medical malpractice case "when the act complained of was done in the face of a proscription known to the actor." Cox v. Lund , 286 S.C. 410, 417, 334 S.E.2d 116, 120 (1985).In Cox , a doctor punctured a patient's colon during a colonoscopy. Id . at 413, 334 S.E.2d at 118. The doctor testi......
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7 books & journal articles
  • C. Proof
    • United States
    • The South Carolina Law of Torts (SCBar) Chapter 2 Negligence and Similar Breaches of Duty
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