Eiss v. Lillis, 840608

• Decision Date: 12 June 1987
• Docket Number: No. 840608,840608
• Citation: 233 Va. 545,357 S.E.2d 539
• Parties: Elynn EISS, Executrix of the Estate of Allen Eiss, Deceased, v. Frederick P. LILLIS, M.D. Record
• Court: Virginia Supreme Court

Page 539

357 S.E.2d 539

233 Va. 545

Elynn EISS, Executrix of the Estate of Allen Eiss, Deceased, v. Frederick P. LILLIS, M.D.

Record No. 840608.

Supreme Court of Virginia.

June 12, 1987.

Thomas P. Mains, Jr., Alexandria, for appellant.

Joseph J. Perez (R. Harrison Pledger, Jr., McLean, on brief), for appellee.

Present: CARRICO, C.J., POFF, COMPTON, STEPHENSON, RUSSELL, and THOMAS, JJ., and COCHRAN, Retired Justice.

THOMAS, Justice.

This is a medical malpractice action in which plaintiff's decedent, Allen Eiss (Eiss or decedent) died from intercranial bleeding which resulted from an overdose of the "blood thinning" drug Coumadin. The defendant, Dr. Frederick P. Lillis, contended that the decedent was contributorially negligent because he took aspirin while taking Coumadin. The central issue is whether the trial court erred in permitting the jury to consider the question of the decedent's contributory negligence. ¹

Defendant failed to plead contributory negligence in a timely manner. However, the trial court was of the view that contributory negligence was shown by plaintiff's evidence. Thus, the trial court concluded, based on Rule 3:16(d) ² of the Rules of this Court, that it was appropriate to submit the question of decedent's contributory negligence to the jury.

In light of its conclusion, the trial court granted the following instructions:

You shall find your verdict for the plaintiff i[f] she has proved by the greater weight of the evidence that:

(1) the defendant was negligent; and that

(2) the defendant's negligence was a proximate cause of the plaintiff's decedent's death, and that

(3) you do not find from the Plaintiff's evidence that the decedent was contributorily [sic] negligent, and that any such contributory negligence was a proximate cause of his death.

You shall find your verdict for the the defendant if:

(1) the plaintiff failed to prove either or both of the elements one and two above; or if

(2) you find from the greater weight of plaintiff's evidence that the plaintiff's decedent was contributorily [sic] negligent and that his contributory negligence was a proximate cause of his death.

The trial court entered judgment on a jury verdict in favor of defendant. We reverse.

Allen Eiss, age 46, was hospitalized twice within a thirty-day time period at Loudoun Memorial Hospital. ³ The first time was on January 25, 1979, when he complained of chest pains. He came under the care of Dr. Lillis, who diagnosed a mild heart attack. While in the hospital, Eiss was placed on Coumadin, a drug which lessens the tendency of the blood to clot.

Coumadin is considered dangerous because one of its major side effects is hemorrhaging. As a result, the dosage given to a patient must be individualized and stabilized. It usually takes 7 to 15 days to stabilize a dosage. The key method for stabilizing the dosage is taking prothrombin (PT) times of the patient and adjusting the dosage accordingly. The PT time is the amount of time it takes the blood to clot after a certain standard incision. The therapeutic range for Coumadin is 1.5 to 2.5 times the patient's normal or control clotting time.

From his first admission on January 25, 1979, to his first discharge on February 5, 1979, Eiss was given only three PT tests. The last test was on February 2, 1979, three days before his discharge. His PT time was never checked again until he was readmitted complaining of bleeding on February 25, 1979.

The first PT test was given within twenty-four hours of the initial administration of Coumadin which occurred on January 26, 1979. Thereafter, Eiss received 10 milligrams of Coumadin each day. The second test showed a PT time of 18 seconds against a control of 10 seconds. The third test showed a PT time of 21 or 23 seconds against a control of 10 seconds. According to plaintiff's expert witness, the important thing about the PT tests given to Eiss is that the length of time required for clotting was increasing. The expert testified that as of the third test, there was no way to tell whether the dosage was acceptable and the patient stable because "the values were increasing."

After Eiss was discharged from his first hospitalization he continued to take Coumadin along with two other drugs. He also attended sessions at the hospital's cardiac treatment center. He had scheduled an appointment with Dr. Lillis for February 20, 1979. A snowstorm occurred that day and the appointment was rescheduled for February 26, 1979.

Mrs. Eiss testified that on Friday, February 23, 1979, Eiss mentioned that his leg hurt. On that same day, he went to the cardiac treatment center. There, he told one of the doctors about his leg hurting. The doctor told him to take aspirin. He started taking aspirin that Friday.

Mrs. Eiss testified further that on Saturday, Eiss "felt weak." She said that he stayed in bed most of that day. He told Mrs. Eiss that his gums were bleeding. Saturday night the Eisses went out to dinner. They did not stay because Eiss did not feel well.

By Sunday, Eiss was "really weak." His wife said that "he was really bleeding and he had a horrible headache." Eiss called the hospital and talked to Dr. Lillis. Mrs. Eiss then took Eiss to the hospital.

Mrs. Eiss said that Dr. Lillis talked to her in the emergency room and told her that Eiss' PT time was out of hand, that there was a lot of bleeding, and that Dr. Lillis wanted Eiss in the hospital. Mrs. Eiss saw her husband in the emergency room for a short time. She said that he "seemed a little bit disoriented."

When Eiss was readmitted on February 25, 1979, he gave his medical history to Dr. Lillis. Dr. Lillis noted that Eiss was admitted from the emergency room "because of bleeding." Dr. Lillis recorded that "in the last two or three days, [Eiss] had developed swelling of the calf, first left and now right." Dr. Lillis noted that there was tenderness and pain in the calf when walking and that there was also some discoloration. The doctor also recorded that two days prior to Eiss' admission "he developed slight hematuria ⁴ which increased" on Saturday, the day before his readmission. Dr. Lillis noted further that Eiss complained of bleeding from his mouth. Also, Eiss had had a headache just over the eyebrows which had been present for several days. Dr. Lillis' history of Eiss noted, too, that, on the night prior to his readmission, Eiss had experienced a temperature of 102 degrees. The doctor noted that Eiss' PT time taken in the emergency room was 61 seconds over a control of 10 seconds, a figure which is 6 times normal. The doctor's impression was partly as follows: "Bleeding, due to Coumadin, with hematuria and bleeding into the right calf muscle."

In the discharge summary prepared by Dr. Lillis regarding Eiss' second admission, the doctor noted that "on the day before admission [Eiss] took about 12 aspirin." He also recorded that on examining Eiss his "urine showed 3+ protein, red cells too numerous to count." The discharge summary stated further that Eiss was given 10 milligrams of Vitamin K in an attempt to correct the PT time and the effect of the Coumadin.

The doctor's progress record contained an entry for 4:00 p.m. on February 25, 1979. It referred to bleeding in the urine, bleeding from a tooth, and swelling of Eiss' calves. It noted that these complaints were of two to three days duration. It recorded the PT time of 61/10 and the impression of bleeding secondary to Coumadin. Dr. Lillis' entry for 10:30 p.m. noted strange behavior on Eiss' part: wandering about the hall, entering the wrong room, and urinating on the floor. The doctor made a note that Eiss' wife had described him as "quite depressed." He also noted that Eiss was "very sleepy."

Susan Adams, a registered professional nurse, was on duty on February 25, 1979 on the 4:00 p.m. to 11:00 p.m. shift. She admitted Eiss to the hospital. Adams noted on the nursing history that Eiss "was sleepy. He was a bit difficult to elicit information from because he would go to sleep in mid sentence and it took a bit of prompting to have him continue with the thought." Adams remembered Eiss from his earlier stay in January. She said that his behavior on readmission was substantially different from what it had been in January. She was concerned about Eiss' behavior. She said that over the course of the evening:

He was a bit confused. At times some of his responses were a bit confused. He was found to be wandering in the hall, at one point, heading into another room in a rather state of disarray which was unlike him. He told me he was hunting for a place to vomit. He was amenable to general persuasion back to bed. He urinated on the floor behind the large chair in the room despite the fact the bathroom was even closer.

Adams conveyed her observations to Dr. Lillis in three separate telephone calls over the course of her shift.

Adams said the doctor came to the floor several times. She said that Eiss was given the 10 milligrams of Vitamin K ordered by Dr. Lillis but that Eiss did not receive any more Vitamin K. She stated further that on her shift Eiss did not receive blood or blood plasma. To her knowledge, no additional PT times were taken after the one in the emergency room which showed a clotting rate six times slower than normal. She noted that Eiss' "room was kept relatively dark all evening because the lights were aggravating the headache and vomiting." She said that when Eiss urinated on the floor they placed a plastic reagent stick in the urine and got a reading of two plus for blood, so they knew Eiss had blood in his urine, and she told Dr. Lillis what she had found. Adams said that when she went off duty the night of February 25, 1979, Eiss was responsive to verbal communication.

Mrs. Eiss stayed in the room with her husband starting about 1:30 a.m. on February 26, 1979. She said that they had given her husband a shot on February 25 and that there was a big bruise at the place he received...