Hopkins v. McBane

• Decision Date: 28 June 1988
• Docket Number: No. 870138,870138
• Citation: 427 N.W.2d 85
• Parties: Antoinette HOPKINS, Plaintiff and Appellee, v. R.D. McBANE, M.D., an individual, Defendant and Appellant, and the Mercy Hospital of Devils Lake, North Dakota, a non-profit corporation, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 85

427 N.W.2d 85

77 A.L.R.4th 391

Antoinette HOPKINS, Plaintiff and Appellee, v. R.D. McBANE, M.D., an individual, Defendant and Appellant and the Mercy Hospital of Devils Lake, North Dakota, a non-profit corporation, Defendant.

Civ. No. 870138.

Supreme Court of North Dakota.

June 28, 1988.

Bickle, Coles & Snyder, Bismarck, for plaintiff and appellee; argued by Robert J. Snyder.

Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Ltd., Grand Forks, for defendant and appellant; argued by Gerald J. Haga.

GIERKE, Justice.

R.D. McBane, M.D., has appealed from an order denying his motion to amend findings of fact and conclusions of law, an order denying his motion for a new trial, and the judgment entered in a wrongful death action brought by Antoinette Hopkins for the stillbirth of her child. We affirm.

This case was previously before us in Hopkins v. McBane, 359 N.W.2d 862 (N.D.1984), in which we reversed the district court's summary judgment of dismissal upon concluding that Sec. 32-21-01, N.D.C.C., "authorizes a wrongful-death action against one whose tortious conduct causes the death of a viable unborn child." Id., at 865. Upon remand, the action was tried to the court on the merits.

Hopkins' membranes spontaneously ruptured at about 5 p.m. on April 1, 1980. She was admitted to Mercy Hospital shortly after midnight on April 2, 1980. As of 9 a.m. on April 2, when McBane saw Hopkins, hospital charts and records indicated that Hopkins had reported a spontaneous rupture of her membranes and had been leaking "green-tinged fluid." By 11:30 a.m. on April 3, fetal heart tones were less clear than they had been. At 12:30 p.m., Dr. Douglas Greves was unable to hear fetal heart tones. A Caesarean section was started at 1:38 p.m. on April 3 and Hopkins' child was stillborn. The trial court found that McBane's care of Hopkins and her unborn child failed to meet the applicable standard of care, and that the death of Hopkins' unborn child was proximately caused by that failure. The court concluded that Hopkins was entitled to recover damages "in the amount of $50,000.00 for mental anguish and grief, and in the amount of $100,000.00 for loss of companionship, society and comfort." ¹ Judgment was entered accordingly and McBane appealed.

McBane argues (1) that the trial court's findings of fact on negligence, proximate cause, and damages are clearly erroneous; (2) that the trial court erred in two evidentiary rulings, one refusing to allow Dr. Greves to express expert opinions, and the other allowing the use of certain treatises in the examination of witnesses; (3) that mental anguish and loss of society, comfort and companionship are not recoverable elements of damage in wrongful death actions; and (4) that the trial court erred in denying his motion for a new trial on the grounds that the damages awarded were excessive and on the insufficiency of the evidence on the matters of proximate cause and the standard of care exercised by McBane.

1. Findings of Fact

The trial court found that "the care provided the plaintiff and her unborn child by Dr. McBane did not meet the applicable standard in the community" and "the cause of death of plaintiff's unborn child, to a reasonable degree of medical certainty, was prolonged rupture of membranes with associated corioamnionitis, and probably beta streptococcus septicemia." McBane contends that those findings of fact are clearly erroneous.

"A physician is required to exercise such reasonable care and skill as are exercised ordinarily by physicians practicing in similar localities in the same general line of practice." Winkjer v. Herr, 277 N.W.2d 579, 583-584 (N.D.1979). "Generally, a prima facie case of medical malpractice must consist of evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of." Id., at 583.

Dr. Robert J. Bury, a physician testifying as an expert in obstetrics and gynecology testified on direct examination by counsel for Hopkins:

"Q Okay. We're getting down to the end here. Doctor, after having reviewed the records, after having taken a history from Antoinette, and based upon your training and your experience, to a reasonable degree of medical certainty, can you state, in your opinion, what the cause of death was for Nelvette Lynn McDonald?

"A Well, to a reasonable degree of medical certainty, I believe the cause of fetal death was prolonged rupture of the membranes with associated chorioamnionitis and probably a beta streptococcal septicemia of the infant.

"Q Doctor, again, the same question, based on your training and experience and having reviewed the records, to a reasonable degree of medical certainty, assuming now that a standard is being applied to a family practitioner in a hospital the size of Devils Lake, North Dakota, in your opinion, did Antoinette Hopkins, then known as McDonald, and her unborn fetus receive the minimum necessary standard of care to ensure that she would, in fact, be able to deliver a child?

"A No; I believe she did not.

* * *

* * *

"Q Could you state why not?

"A In summary, I believe her prolonged rupture of the membranes was unrecognized; the meconium-stained amniotic fluid was not recognized; that undue time from the time of the onset of the ruptured membranes until delivery had elapsed, allowing a recognized infection, chorioamnionitis, to affect the mother and subsequently the unborn fetus and result in the death of that baby."

That testimony supports the trial court's findings of fact on negligence and proximate cause, and we conclude that the findings are not clearly erroneous.

McBane also argues that the trial court's finding of fact that "Plaintiff presented no evidence of pecuniary or economic loss" precludes the recovery of any damages in this case. We disagree. It is apparent that the court and counsel were treating "pecuniary" and "economic" as equivalents that included such things as lost wages and out-of-pocket losses as a category of damages distinct from mental anguish or loss of society. ² Hopkins' failure to prove such strictly pecuniary losses as lost wages or out-of-pocket expenses does not preclude recovery of any damages.

2. Evidentiary Rulings

McBane argues that the trial court erred in refusing to allow Dr. Greves, who testified as a fact witness, to testify as an expert, in addition to Dr. James J. Kolars, on the applicable standard of care McBane owed Hopkins and her unborn child and whether or not McBane met that standard. Dr. Greves had not been disclosed as an expert witness in the discovery process. McBane made an offer of proof and has not demonstrated any prejudice from the court's refusal to allow Greves to testify as an expert.

McBane argues that the trial court erred in allowing reference to and use of medical treatises that had not been disclosed to the defense prior to the start of the trial. In ruling on the objection to the treatises, the trial court said:

"Now, getting back to that part of the objection, the lateness of the response to the interrogatory, I guess is what this is, I will not rule those books inadmissible on that ground this morning. But, I will, in fact, in order to keep the record simple, what I'll do is I will direct that defense counsel confer with their experts about these volumes. And if they can in fact present some evidence or testimony showing that they are put at a substantial disadvantage by the lateness of this response and that they need time, then they may renew their objection and possibly couple that with a request for a continuance if they think that they can present me with evidence that would justify a continuance."

Counsel for Hopkins asserted in his brief that "[n]o evidence was later presented by the defendants to show that they were put at a disadvantage." McBane has neither drawn our attention to any record evidence presented to show that he was "put at a substantial disadvantage" nor demonstrated any prejudice.

Relying on Benedict v. St. Luke's Hospitals, 365 N.W.2d 499 (N.D.1985), McBane asserts that we have "recently held that it was proper for a trial court to refuse the admission (or use) of evidence as a proper sanction for not heeding ... the rules of discovery." Our determination in that case that the trial court did not abuse its discretion in refusing to allow evidence of the standards set by the Joint Commission on Accreditation of Hospitals, the intended use of which had not been disclosed, despite a discovery request therefor, does not mean that a trial court errs in failing to exclude the use of undisclosed treatises. We specifically noted in Benedict, supra, 365 N.W.2d at 504, that "the trial court has a discretionary authority to determine what sanctions, if any, are appropriate." We conclude that the trial court did not abuse its discretion in allowing use of the previously undisclosed medical treatises in this case.

3. Damages for Loss of Society, Comfort and Companionship,

and Damages for Mental Anguish

McBane argues that no damages are recoverable in a wrongful death action for loss of society, comfort and companionship, or mental anguish.

a. Introduction

In 1808, Lord Ellenborough declared that "[i]n a civil Court, the death of a human being could not be complained of as an injury." Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (K.B.1808). The decision "is one of the most criticized decisions in legal history" and led to the enactment of Lord Campbell's Act in 1846. S. Speiser & S. Malawer, An American Tragedy: Damages for Mental Anguish of Bereaved Relatives in Wrongful Death Actions, 51 Tul.L.Rev. 1, 5 (1976). As Professor Prosser observed in The Law of Torts, Sec. 127, p. 902 (4th ed. 1971):

"The result was that it was more profitable for the defendant to kill the plaintiff than to scratch him, and that the most grievous of all injuries left the bereaved family of the victim, who frequently were...