Fjerstad v. Knutson

Decision Date26 October 1978
Docket NumberNo. 12045,12045
Citation271 N.W.2d 8
PartiesDiane FJERSTAD, as Special Administrator of the Estate of Dezso Csoka, Plaintiff and Appellant, v. Dr. John M. KNUTSON and Sioux Valley Hospital, a South Dakota Corporation, Defendants and Respondents.
CourtSouth Dakota Supreme Court

David V. Vrooman, Sioux Falls, for plaintiff and appellant.

Carleton R. Hoy of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and respondents.

PORTER, Justice (on reassignment).


This is an action by the special administrator of the estate of Dezso Csoka for his wrongful death, allegedly caused by negligent medical services rendered to decedent by defendants. The trial court rendered judgment, based on a jury verdict, for defendants. On appeal plaintiff contends: (1) The trial court erred in instructing the jury that it could not find defendant Sioux Valley Hospital liable unless it found defendant Knutson liable; (2) the court erred in refusing to instruct on negligence per se based on the facts that defendant Knutson was not licensed to practice medicine, that a hospital cannot practice medicine, that an unlicensed physician cannot issue prescriptions and that one may not use the title "Doctor" unless licensed; (3) that the court erred in instructing the jury that an unlicensed intern can make a "bona fide medical judgment;" (4) that the court erred in refusing to instruct the jury to consider the instructions as a whole and not to concern itself with the reasons for admission or exclusion of evidence; and (5) that the instructions as a whole were improper.

We conclude that the separate liability of Sioux Valley Hospital was not properly presented to the jury, and we therefore reverse and remand for a new trial against Sioux Valley Hospital. We affirm that part of the judgment which found defendant Knutson not liable.


Decedent Dezso Csoka and his family went on vacation in late June, 1973, and were returning to their home near Chicago when they arrived in Rapid City on July 2. Decedent felt ill on his arrival, but did not seek medical attention because he wanted to return to Chicago and see his own doctor. On July 4 the Csoka family traveled across South Dakota, with decedent driving the entire distance. Decedent's condition had deteriorated upon their arrival in Sioux Falls. He and his family rented a motel room and then went to the emergency room at Sioux Valley Hospital.

Decedent arrived at the hospital at 6:22 p. m. He was seen by intern John Knutson at 8:30. Knutson was the only intern on duty and there were no licensed physicians present. July 4 was Knutson's second day as an intern. Knutson examined decedent and ordered a blood test and throat culture. He then gave decedent a prescription for an antibiotic, erythromycin, and released him. Knutson did not use mirrors or a laryngoscope, even though these instruments were available to him. Use of such instruments would have allowed him to see beyond the soft palate to the epiglottis, tonsils, and trachea.

It was the policy of the hospital not to release emergency room patients until the on-call physician or the patient's local doctor had been contacted. Interns were to initiate a course of treatment only in emergencies, and they were not to prescribe drugs without consulting a licensed physician. Knutson attempted to contact the on-call physician for consultation in decedent's case, but was unable to do so for three and one-half to four hours. The hospital was responsible for assigning on-call physicians and assuring that they would be available when they were on call.

After Knutson released him, decedent returned to his motel. He took at least two of the antibiotic pills as directed by Knutson. When decedent's wife and children awoke the next morning, they found him dead. The autopsy indicated that death was caused by asphyxia resulting when his larynx, tonsils, and epiglottis swelled, and the trachea was blocked.


The major issues presented by this appeal are:

ISSUE ONE: Was the separate liability of Sioux Valley Hospital properly submitted to the jury?

ISSUE TWO: Was plaintiff entitled to further instructions on negligence per se?



We conclude that the separate liability of Sioux Valley Hospital was not properly submitted to the jury.

In reviewing the propriety of instructions, we must consider the evidence to determine which jury issues are presented. 1 We must then evaluate the instructions as a whole to determine whether they were prejudicial to the party who proposed other instructions or who objected to the instructions as given, and whether they fairly presented all issues in the case to the jury. See Mueller v. Mueller, 88 S.D. 446, 221 N.W.2d 39 (1974); Jorgenson v. Dronebarger, 82 S.D. 213, 143 N.W.2d 869 (1966); Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958).

We first evaluate the evidence in order to determine whether the separate liability of Sioux Valley Hospital presented a jury issue. Our enumeration of facts constituting a theory of negligence should not be taken as excluding other theories that could be inferred from the record.

Under proper instructions, the jury could have found that Sioux Valley Hospital was negligent even if Knutson was not. Although it has been held that a hospital, even one operating an emergency room, has no duty to accept a patient for treatment, Birmingham Baptist Hospital v. Crews, 229 Ala. 398, 157 So. 224 (1934), once it undertakes to render medical aid, the hospital is required to do so non-negligently. See Citizens Hospital Association v. Schoulin, 48 Ala.App. 101, 262 So.2d 303 (1972); Register v. Wilmington Medical Center Inc., 377 A.2d 8 (Del.Supr.1977); Bourgeois v. Dade County, 99 So.2d 575 (Fla.1957); Grewe v. Mount Clemens General Hospital, 74 Mich.App. 479, 253 N.W.2d 805 (1977); New Biloxi Hospital, Inc. v. Frazier, 245 Miss. 185, 146 So.2d 882 (1962); Powers, Hospital Emergency Service and the Open Door, 66 Mich.L.Rev. 1455, 1460-1475 (1968). The duty arose in this case, since the hospital undertook, through its nurses and intern, to render treatment to decedent. Decedent had a right to expect that the treatment rendered by a hospital which maintains and staffs an emergency room would be commensurate with that available in the same or similar communities or in hospitals generally. Register, supra (Community standard); Miller v. Trinity Medical Center, 260 N.W.2d 4 (N.D.1977); Dickinson v. Mailliard, 175 N.W.2d 588 (Iowa 1970) (Standard practiced by hospitals generally.)

On this record, however, we find it unnecessary to evaluate the evidence in light of one of these standards, since the evidence of the hospital's breach of its own standards is sufficient to create a jury issue. The medical director of laboratories at the hospital, Dr. John Barlow, testified that the emergency room on-call doctor is to be available for consultation and that he is assigned that duty by the hospital. Dr. Richard Friess, director of the hospital's medical education program, testified that interns could see the patients, but that the on-call physician, according to hospital policy, had to be contacted before treatment in all but serious emergencies. It is uncontroverted that the emergency room doctor was not available for consultation, and that Knutson rendered treatment without such consultation.

The failure to have an emergency room doctor available and failing to consult with him violated the hospital's own standard for treatment. This failure was attributable to the hospital in several ways independent of any negligence by Knutson. The jury could have believed, from the above evidence, that the hospital failed to properly assign an emergency room on-call physician, or that Knutson was not properly trained by the hospital to consult with a physician before releasing an emergency room patient. In addition, the actions of the on-call doctor in not being available for call to the emergency room are attributable to the hospital. In his capacity as on-call physician, he was acting on behalf of the hospital, and emergency patients could properly assume that the hospital would be responsible for the actions of its on-call physician. Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (1976).

Defendants insist that failure to have the on-call physician available was not the cause of decedent's death. Several expert defense witnesses so testified. There was, however, testimony from Dr. John Gregg that proper diagnostic procedures would have revealed the seriousness of decedent's condition. Dr. Gregg also testified that someone with decedent's symptoms should have been hospitalized, and that proper hospitalization would probably have saved decedent's life. The jury thus could have believed that an experienced physician would have taken the necessary steps to save decedent's life.

We must next consider whether the instructions as given were prejudicial to plaintiff. The verdict cannot be set aside if the instructions, considered as a whole, give a full and correct statement of the law applicable to the case, Huntley v. Harberts, S.D., 264 N.W.2d 497 (1978); Mueller v. Mueller, supra; Dwyer v. Christensen, supra. We conclude that instruction five, 2 however, gave "undue emphasis to (a) phase of the case favorable to (one) side," Jorgenson v. Dronebarger, supra, and thus constituted reversible error. The instruction stated, without any limitation, that the jury could not find against the hospital if it found for Dr. Knutson. Although later instructions 3 seem to refer to the hospital's separate liability, they do not eliminate the error of instruction five. This is particularly the case where the trial court refused to instruct the jury to consider the instructions as a whole. 4 We therefore conclude that a new trial is required on the issue of the hospital's separate liability.


We conclude that plain...

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