Deutsch v. Shein
Decision Date | 11 March 1980 |
Court | United States State Supreme Court — District of Kentucky |
Parties | Patricia M. DEUTSCH, Movant, v. Melvin SHEIN, M.D. and Melvin Shein, M.D., P.S.C., Respondent. |
Edward M. Post, Taustine, Post, Berman, Fineman & Kohn, Louisville, for movant.
John T. Ballantine, Stephen A. Watkins, Ogden, Robertson & Marshall, Louisville, for respondent.
This is an appeal from a judgment of the Jefferson Circuit Court which dismissed the claim of Mrs. Deutsch for damages from Dr. Shein for physical and mental pain and suffering. The Court of Appeals affirmed. We reverse and remand for a new trial on the issue of damages only.
On January 22, 1974 Mrs. Deutsch visited Dr. Shein, a board certified internist, for diagnosis and treatment of the cause of her nausea, weakness, and other symptoms. The circumstances of this consultation were hotly disputed. What is not in dispute, however, is that Mrs. Deutsch was not tested for pregnancy, that she was hospitalized from January 23-29, and that numerous diagnostic x-rays and other radiological tests were performed on her person. Mrs. Deutsch's complaints continued unabated and she again visited Dr. Shein on February 5.
She went to see Dr. Levine, the obstetrician/gynecologist who had delivered her first two children, on February 18. Dr. Levine's examination revealed she was about ten weeks pregnant. Mrs. Deutsch became upset upon learning of her condition, explaining to Dr. Levine she had seen various articles which stated that x-rays administered to a pregnant woman could injure the fetus she carried. Dr. Levine inquired into the diagnostic x-rays given Mrs. Deutsch and determined there was a serious risk her fetus had been damaged. He recommended that if Mrs. Deutsch decided upon an abortion, it should be performed within the week.
Mrs. Deutsch consulted her pediatrician who also stated that an abortion was "medically indicated," but refused to advise her to have or not have an abortion. She then visited with her priest, who emphasized the Church's negative position on abortion. She also discussed her situation with relatives. Mrs. Deutsch decided to terminate her pregnancy by abortion on February 22.
At trial Dr. Shein introduced respectable medical testimony to the effect that the amount of diagnostic radiation administered to Mrs. Deutsch did not warrant a therapeutic abortion. The case was submitted to the jury upon special interrogatories. The jury found that Dr. Shein failed to use that degree of care and skill which is expected of a reasonably competent practitioner specializing in internal medicine, acting in the same or similar circumstances, by not obtaining a pregnancy test before Mrs. Deutsch was administered x-rays. The jury further found, however, that Dr. Shein's failure to obtain a pregnancy test, coupled with the administering of x-rays, was not a substantial factor in causing the injury of which Mrs. Deutsch complained.
Neither party to this appeal disputes the correctness of so much of the verdict as found Dr. Shein to be negligent. This contested point was resolved by the jury against Dr. Shein. Further, as to the standard of care, Dr. Shein's own testimony established that if Mrs. Deutsch's version of the visit was believed his handling of the case did not meet the standard of care. Necessary expert testimony to establish that the defendant failed to conform to the required standard of care may consist of admissions by the defendant doctor. Jarboe v. Harting, Ky., 397 S.W.2d 775, 778 (1965). There was sufficient evidence in the record to support the jury's finding of negligence. This portion of the judgment must stand.
Mrs. Deutsch maintains that the evidence conclusively establishes that as a matter of law Dr. Shein's negligence was a substantial factor in causing her mental and physical pain and suffering. We agree that reasonable minds cannot differ on the conclusion that the negligence of Dr. Shein was a substantial factor in causing the irradiation of Mrs. Deutsch during an early period of her pregnancy, for which she sought further medical advice and services and, therefore, in causing her at least some trauma. The extent of Mrs. Deutsch's damages must be determined at a new trial. For the reasons set out below, this portion of the judgment must be reversed.
The breach of the required standard of care by an actor can produce a result similar to that of a snowball rolling down a hill. The initial consequence of the snowball may be slight. But as the snowball rolls down the hill its increasing size and momentum take on a character of their own which can cause injury of a magnitude far beyond the imagination of the one who set the snowball in motion. Nevertheless, the law is that between the negligent actor and the injured innocent, the innocent should recover compensation, unless the law cuts off the expansion of the negligent actor's liability as a matter of public policy. For instance, the law might not, as a matter of policy, impose liability where the snowball has roared to the foot of the hill and disintegrated sending several rocks to neighboring peaks to begin the process anew.
Liability for a negligent act follows a finding of proximate or legal cause. Proximate cause is a legal term which defies precise definition, though many have valiantly tried. See discussion in Dale v. E. R. Knapp & Sons, Inc., Ky., 433 S.W.2d 880, 883 (1968). The Restatement of Torts, Second sec. 431 analyzes proximate cause so "What Constitutes Legal Cause
The actor's negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm."
The Restatement, Second analysis represents a conversion of the substantial factor test from another ineffective test for proximate cause into a vehicle used to find causation in fact. Proximate cause, then, consists of a finding of causation in fact, i. e., substantial cause, and the absence of a public policy rule of law which prohibits the imposition of liability. See 57 Am.Jur.2d Negligence, sec. 147. This substantial cause is explained:
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