Hilden v. Ball

• Decision Date: 22 May 1989
• Docket Number: No. 17394,17394
• Citation: Hilden v. Ball, 117 Idaho 314, 787 P.2d 1122 (Idaho 1989)
• Parties: Rayola HILDEN, individually and as guardian ad litem for Jeremiah Hilden and Heather Hilden, minor children, Plaintiffs-appellants, v. Dr. James BALL, Defendant-respondent.
• Court: Idaho Supreme Court

Page 1122

787 P.2d 1122

117 Idaho 314

Rayola HILDEN, individually and as guardian ad litem for Jeremiah Hilden and Heather Hilden, minor children, Plaintiffs-appellants, v. Dr. James BALL, Defendant-respondent.

No. 17394.

Supreme Court of Idaho.

May 22, 1989.

On Rehearing March 1, 1990.

Webb, Burton, Carlson, Pedersen & Webb, Twin Falls, for plaintiffs-appellants. Kenneth L. Pedersen argued.

Quane, Smith, Howard & Hull, Boise, for defendant-respondent. Andrew C. Brassey argued.

BAKES, Chief Justice.

Plaintiffs sued defendant, alleging medical malpractice in defendant's administration of anesthesia to Robert Hilden in preparation for surgery. The jury returned a verdict for defendant. Plaintiffs then moved for a new trial. The motion was denied and judgment was entered accordingly. Plaintiffs appeal.

Robert Hilden was scheduled to have a hemorrhoidectomy on July 12, 1984, by Dr. Hayden Ellingham at Cassia Memorial Hospital in Burley. Dr. James Ball was to provide anesthesia during the surgery. Because of Mr. Hilden's obesity (440 pounds), Doctors Ellingham and Ball decided to place him on his back with his legs folded back over his abdomen during surgery, rather than the usual position of lying on the abdomen with legs down, because the normal position would greatly compromise Mr. Hilden's ability to breathe.

Dr. Ball administered general anesthesia following a standard sequence of drugs. Initially, a combination of valium and fentanyl was administered. Sodium pentothal was administered about fifteen minutes later. Testimony was given that after pentothal takes effect the anesthesiologist must "breathe" for the patient by manually ventilating or "bagging" the patient's lungs with 100% oxygen. Dr. Ball was unable to ventilate Mr. Hilden's lungs. He checked Mr. Hilden's upper airway for an obstruction and found none. Dr. Ball then administered the drug anectine to relax Mr. Hilden's vocal cords and other muscles so he could insert an endotracheal tube down Hilden's throat to assist his breathing. Mr. Hilden was then intubated and oxygen was administered, but even this failed to enhance Mr. Hilden's ability to receive air. Dr. Ball removed the endotracheal tube to make sure it was not defective or obstructed, then reinserted it. Hilden was still unable to receive air. Just minutes after he first received sodium pentothal, Hilden died from cardiac arrest brought on by lack of oxygen in the heart.

Robert Hilden was survived by plaintiffs Rayola Hilden, his wife, and Jeremiah Hilden and Heather Hilden, his children, who brought suit claiming that Robert Hilden died as a result of Dr. Ball's alleged negligent anesthetic care. Specifically, the Hildens asserted that Dr. Ball was negligent in not "pre-oxygenating" Mr. Hilden because Hilden's obesity might make him vulnerable to respiratory difficulty under anesthesia. There was testimony that pre-oxygenation might have increased his blood oxygen supply by ten percent. ¹ The jury returned a verdict for Dr. Ball, and the Hildens moved for a new trial. The motion was denied, judgment for Dr. Ball was entered, and this appeal followed. We affirm the judgment of the trial court.

I

Appellants first contend that the trial court incorrectly instructed the jury that a local standard of care applied to Dr. Ball. We disagree. I.C. § 6-1012 mandates that a local standard of care is to be utilized in medical malpractice cases:

6-1012. Proof of community standard of health care practice in malpractice case.--In any case, claim or action for damages due to injury to or death of any person, brought against any physician and surgeon or other provider of health care, including, without limitation, any dentist, physicians' assistant, nurse practitioner, registered nurse, licensed practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing home, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, such claimant or plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning. Such individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any. If there be no other like provider in the community and the standard of practice is therefore indeterminable, evidence of such standard in similar Idaho communities at said time may be considered. As used in this act, the term "community" refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided. (Emphasis added.)

In order for the jury to find Dr. Ball negligent under I.C. § 6-1012, the jury would have to find, by a preponderance of the evidence, that Dr. Ball "negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, ... as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he ... was functioning." Id.

The instruction which was given followed I.C. § 6-1012. Instruction No. 3 reads as follows:

In order to prove that Dr. Ball was "negligent," the plaintiffs must prove, by direct expert testimony and by a preponderance of all the competent evidence, that Dr. James Ball, on July 12, 1984, failed to meet the applicable standard of health care practice of the community in which such care was provided, as such standard then existed, with respect to the class of health care provider to which Dr. Ball belonged and in which he was functioning.

Physicians, such as the defendant Dr. Ball, shall be judged in comparison with similarly trained and qualified physicians in the same community, or in similar communities, taking into account his training, experience, and field of specialization, i.e., anesthesiology.

The term "community" refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was provided.

If Dr. Ball failed to meet the above standard of health care practice, then he is negligent. If Dr. Ball did meet such standard of health care, then he is not negligent.

The standard of care applicable to medical malpractice cases in this state is a local standard of care, as is clearly enunciated both in I.C. § 6-1012 and in our prior cases. See, e.g., Robertson v. Richards, 115 Idaho 628, 769 P.2d 505 (1987); Dekker v. Magic Valley Regional Medical Center, 115 Idaho 332, 766 P.2d 1213 (1988); Smallwood v. Dick, 114 Idaho 860, 761 P.2d 1212 (1988). The court's instructions here were based upon the local standard. Accordingly, the trial court committed no error in giving the jury Instruction No. 3.

II

Appellants next contend that the court's instruction regarding proximate causation was improper. They argue that a proximate cause instruction using loss-of-chance causation should have been given. ² However, appellants did not request a loss-of-chance causation instruction, nor did appellants specifically object to the court's given proximate cause instruction. ³ Accordingly, appellants will not now be heard to complain regarding the trial court's failure to give an instruction that appellants failed to propose in the first place. Robert V. DeShazo & Associates v. Farm Mgt. Services, Inc., 101 Idaho 154, 610 P.2d 109 (1980); Holland v. Peterson, 95 Idaho 728, 518 P.2d 1190 (1974).

The proximate cause instruction which the court did give was Instruction No. 4, which reads as follows:

When I use the expression "proximate cause," I mean a cause which, in natural or probable sequence, produced the damage complained of. It need not be the only cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes damage.

For an act or omission by a defendant to be a proximate cause of a plaintiff's damages, you must find that the plaintiff's damages would not have occurred but for that act or omission, and that such act or omission was a substantial factor in causing the damages.

An act or omission is not a proximate cause of a plaintiff's damages if the damages would have occurred without such act or omission.

The first paragraph of Instruction No. 4 was the pre-July, 1987, version of IDJI No. 230 and was Plaintiffs' Requested Instruction No. 4. Plaintiffs cannot now claim error in the giving of an instruction which they requested. McBride v. Ford Motor Co., 105 Idaho 753, 673 P.2d 55 (1983).

Appellants also argue that the "but for" language in paragraphs 2 and 3 of Instruction No. 4 was erroneous. However, IDJI 230, as amended July 1, 1987, several months before the commencement of the trial of this matter, specifically adopted "but for" language in a proximate cause instruction. IDJI 230 now reads as follows:

When I use the expression "proximate cause," I mean a cause which, in natural or probable sequence, produced the complained injury, loss or damage, and but for that cause the damage would not have occurred. It need not be the...