Fall v. White

• Decision Date: 09 June 1983
• Docket Number: No. 4-1181A182,4-1181A182
• Citation: 449 N.E.2d 628
• Parties: Lula M. FALL, Administratrix of the Estate of Max L. Fall, Deceased, Appellant (Plaintiff Below), v. Donald G. WHITE, M.D., Harry R. Stimson, M.D., and Ireland Road Family Physicians, Inc., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 628

449 N.E.2d 628

Lula M. FALL, Administratrix of the Estate of Max L. Fall, Deceased, Appellant (Plaintiff Below), v. Donald G. WHITE, M.D., Harry R. Stimson, M.D., and Ireland

Road Family Physicians, Inc., Appellees (Defendants Below).

No. 4-1181A182.

Court of Appeals of Indiana,

Fourth District.

June 9, 1983.

Rehearing Denied July 22, 1983.

Robert F. Gonderman, Gonderman Law Office, South Bend, for appellant.

David C. Jensen, Richard A. Hanning, Eichhorn Eichhorn & Link, Hammond, for appellees.

MILLER, Judge.

In this medical malpractice action, plaintiff-appellant, Lula M. Fall, Administratrix of the Estate of Max L. Fall, is appealing from both a judgment on the evidence (directed verdict) entered in favor of one defendant-appellee, Dr. Harry R. Stimson, at the close of Fall's evidence and from a later jury verdict in favor of the remaining defendant-appellees, Dr. Donald G. White and Ireland Road Family Physicians, Inc. The action arose out of the alleged negligence of the doctors which purportedly caused the fatal heart attack of Max Fall on April 11, 1973. Fall alleges there was sufficient evidence of Dr. Stimson's negligence to send the case to the jury and there was reversible error in the instructions given to the jury concerning the negligence of Dr. White. We affirm.

ISSUES

Fall claims the trial court erred:

1. in giving final instruction number three which permitted the jury to find for the doctor if death would have occurred regardless of the type or mode of treatment,

2. in giving final instruction number ten which informed the jury Max had a duty to provide his doctor complete information and a duty to follow the doctor's instructions,

3. in giving final instruction number two which stated Fall had to prove the doctor failed to prevent Max's death 4. in giving final instruction number eight which indicated a doctor is not negligent if he exercises reasonable care and ordinary skill even if he fails to appreciate the seriousness of his patient's problem,

5. in refusing Fall's tendered instruction number six which told the jury a doctor is not free to guess or take needless risks with the patient's well-being,

6. in refusing Fall's tendered instruction number two, which related to the alleged negligence of Dr. White in not withdrawing a prescription for Dimetapp Extentab, medicine originally prescribed for treatment of flu, and

7. in granting Dr. Stimson's motion for judgment on the evidence at the close of Fall's case.

FACTS

White and Stimson were physicians employed by the Ireland Road Family Physicians, Inc. in 1973. Lula Fall's deceased husband, Max Fall, a well driller by profession, had been Dr. White's patient for 11 years. Although during his first visit on May 3, 1962, Max complained of "pain in his heart," the physical exam was normal, and Dr. White, diagnosing the condition as "tension with business," prescribed a tranquilizer.

Dr. White next saw Max on August 24, 1962, who then complained of lightheadedness, blurring of vision, pain in his chest, and shortness of breath--but again the physical examination was normal. In February, 1964, Dr. White recommended an EKG, but Max did not submit to the examination. However, Max did continue to see Dr. White for a variety of reasons, including his lightheadedness and chest pains.

In February, 1969, without telling Dr. White, Max went to Mayo Clinic for an examination and electrocardiogram giving a history of pain and dizziness. After an EKG showed no evidence of heart disease, Dr. Wallace A. Merritt of Mayo Clinic diagnosed Max as having a tension state with hyperventilation syndrome and recommended a psychiatric evaluation. Max neither complied with this recommendation nor took the prescribed tranquilizer. Not until March, 1970, did Max tell Dr. White about the Mayo Clinic visit.

In 1971, Max was seen by a Dr. Bernard Vagner, who, after hospitalizing Max for examination, diagnosed his condition as acute anxiety, stress reaction and vertigo. Max did not inform Dr. White of this examination.

Shortly before his death in early 1973, Max applied to purchase life insurance, which required his physical examination including a stress test. Dr. White sent Max to Dr. James Fink for a treadmill electrocardiogram on March 20, 1973. During the course of the test, Max developed multi-focal, premature ventricular contractions requiring the test be stopped. Dr. White assumed his office received the report within a couple of days. On March 25, 1973, Max, with flu-like symptoms, contacted Dr. Stimson who prescribed Dimetapp Extentab, a decongestant which constricts blood vessels; the prescription was filled that day.

Shortly thereafter, on March 29, 1973, Max consulted with Dr. White about both the flu and his stress test results. Dr. White's deposition ¹ and records reveal he discussed the March 20th stress test with Max and informed him the test indicated coronary artery disease. When queried about whether he was having any chest pains or shortness of breath, Max answered in the negative. His records revealed that Max had not complained of chest pains since 1968. Dr. White advised Max he needed further evaluation, provided him with a laboratory slip to have a blood lipid profile done in the next few days and instructed him to return for an evaluation. However, Max neither had the test performed, nor did he contact Dr. White after March 29, 1973. Dr. White also advised Max to quit smoking but allowed him to go In her complaint, administratrix Fall alleged Dr. White was negligent by failing to prescribe medication to aid blood circulation, by failing to seek the advice of a heart specialist immediately, and by failing to limit Max's physical activities. Further, she alleged both Drs. Stimson and White were negligent in prescribing Dimetapp Extentab. She maintained a combination of these factors along with the heart disease caused Max's death.

back to work on his well service business, which was stressful as well as physically demanding. Dr. White did not prescribe any heart medication or send Max to a heart specialist at that time but cautioned Max that he should report to a hospital or to the doctor immediately if he experienced any chest pains. The evidence discloses Max had chest pains before he reported for work on April 11. Further, he experienced chest pains while working, rested a few minutes, then returned to work, dying shortly thereafter of a heart attack.

DECISION

A. Court's Instruction on Proximate Cause

Initially, Fall contends the court erred in giving final instruction number three on causation ² which stated:

"You are instructed that if you find from a fair preponderance of the evidence that Max Fall's death would have occurred at about the same time regardless of the type or mode of treatment rendered by the defendant, your verdict should be for the defendant."

Fall maintains this is a misstatement of the law because the plaintiff does not have the burden to prove the recommended and proper care would have saved the life of the decedent. Fall relies on cases in which an act of nature combined with an act of negligence to produce injury. In such cases, the negligent party was liable where the negligence contributed to the death. Fall cites Childs v. Rayburn, (1976) 169 Ind.App. 147, 346 N.E.2d 655, in support of her contention. In Childs, the employer was found liable for negligence in requiring his farm hand to remain, during an oncoming thunderstorm, in an open field where the boy was killed by a lightning bolt. Thus, there would have been no injury from the act of nature if the defendant had not also been negligent. However, the Childs court explained its decision by quoting our supreme court as follows: " '[I]f the observance of due care in providing against known dangers would not have prevented or turned aside the danger which arose and produced the injury, then, the failure to observe such care could not be regarded as a proximate cause of the injury.' " Id. at 152, 346 N.E.2d at 659, quoting Watts v. Evansville R. Co., (1921) 191 Ind. 27, 53, 129 N.E. 315, 323. Utilizing the supreme court's reasoning, this court approved the following instruction in Hartman v. Memorial Hospital of South Bend, (1978) 177 Ind.App. 530, 380 N.E.2d 583

In order for the plaintiff to recover in this case, she must prove by a preponderance of the evidence not only that the defendant Memorial Hospital of South Bend breached its legal duty as I have defined it for you, but also that such breach proximately caused the plaintiff's decedent's death and the damages, if any, complained of. Plaintiff moreover may not recover because of decedent's death and damages, if any, which you find would have occurred no matter what nursing and hospital care was rendered to the plaintiff's decedent by the defendant Memorial Hospital of South Bend"

Id. at 533, 380 N.E.2d at 585.

Thus, if death occurs no matter what care is provided, there is no causation, and the jury should find for the defendant. We conclude the trial court did not err in the giving of instruction number three on proximate cause.

B. Court's Instruction on Contributory Negligence

Fall also asserts the trial court erred in giving instruction number ten which reads:

"The patient, as well as the physician, has the duty to exercise reasonable care: the physician has a duty to his patient to exercise reasonable care in forming his diagnosis and rendering treatment while the patient has a duty to exercise reasonable care in providing the physician with accurate and complete information and following his instructions for further care or further diagnostic tests. If Max L. Fall failed to exercise reasonable care in providing Dr. White with accurate and complete information regarding his condition or in following instructions given him by Dr. White for further care or tests and such failure on Max Fall's part directly contributed to causing his death, then your verdict should...