Jensen v. Archbishop Bergan Mercy Hosp.
| Decision Date | 03 August 1990 |
| Docket Number | No. 87-1043,87-1043 |
| Citation | 236 Neb. 1,459 N.W.2d 178 |
| Parties | C.E. JENSEN, Special Administrator of the Estate of Lawrence Jensen, Deceased, Appellant, v. ARCHBISHOP BERGAN MERCY HOSPITAL, a Corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Malpractice: Physician and Patient. As a general rule, hospital staff members lack authority to alter or depart from an attending physician's order for a hospital patient and lack authority to determine what is a proper course of medical treatment for a hospitalized patient.
2. Jury Instructions. Jury instructions should be confined to issues presented by the pleadings and supported by evidence.
3. Jury Instructions. Submission of an issue on which the evidence is insufficient to sustain an affirmative finding is, generally, prejudicial and results in a new trial.
4. Pleadings: Negligence: Jury Instructions: Appeal and Error. When the affirmative defense of contributory negligence is pleaded, but there is no relevant evidence to support the defense, it is prejudicial error to submit the issue of contributory negligence.
5. Malpractice: Negligence: Proof. In a medical malpractice action, a defendant may raise the issue of contributory negligence as an affirmative defense and has the burden to prove contributory negligence.
6. Malpractice: Negligence. Generally, the defense of contributory negligence has been recognized in a medical malpractice action when the patient has (1) failed to follow a medical instruction, (2) refused or neglected prescribed treatment, or (3) intentionally given erroneous, incomplete, or misleading information which is the basis for medical care or treatment of the patient.
7. Malpractice: Negligence: Proximate Cause. To be considered as and constitute contributory negligence in a medical malpractice action, a patient's negligence must have been an active and efficient contributing cause of the injury, must have cooperated with the negligence of the malpractitioner, must have entered into proximate causation of the injury, and must have been an element in the transaction on which the malpractice is based.
8. Malpractice: Negligence. In a medical malpractice action, the defense of contributory negligence is inapplicable when a patient's conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim or when the patient's conduct contributes to an illness or condition for which the patient seeks the medical attention, care, or treatment on which a subsequent medical malpractice claim is based.
Martin A. Cannon, of Matthews & Cannon, P.C., Omaha, for appellant.
Charles F. Gotch, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.
C.E. Jensen, special administrator of the estate of Lawrence Jensen, deceased, brought this malpractice action against Archbishop Bergan Mercy Hospital (Bergan Mercy). Jensen appeals from the judgment on the verdict for Bergan Mercy and, among his assigned errors, contends that the trial court erred in refusing one of Jensen's tendered instructions and in submitting the issue of contributory negligence.
Lawrence "Larry" Jensen became a patient of Dr. Richard E. Peters in 1976, when Larry suffered a back injury while playing football for the UNO Mavericks. At that time, Larry, 21 years old, had a height of 6 feet 3 inches and weighed 263 pounds. After Larry's back surgery, Peters diagnosed Larry's condition as pulmonary embolism, in which a blood clot or thrombus has lodged in the lung after the clot, previously located at some other bodily location such as the pelvis or legs, had traveled through the bloodstream to the lung. Pulmonary embolism is a complication from thrombophlebitis, the formation of blood clots inside a vein, which often results from physical injury or trauma to the vein. Larry was treated with heparin, an anticoagulant, and, after several days, was released from medical care. Two years later, Peters saw Larry for abdominal problems. At that time, Peters advised Larry, who weighed 291 pounds, to lose weight. In 1981, Larry, weighing 326 pounds, was admitted to Bergan Mercy for abdominal and back pain. Peters' diagnosis was acute colitis, for which he hospitalized Larry and then released him 6 days later.
In January 1983, Larry, an equipment operator for a utility company, was injured in a family sledding accident and sustained a compression fracture of a lumbar vertebra. Larry was admitted to Bergan Mercy under Dr. Peters' care. At this time, Larry weighed 290 pounds, and, on account of the thrombophlebitis, Peters treated Larry with small doses of heparin to prevent blood clots while Larry was bedridden. After 15 days Peters released Larry from the hospital and advised him not to return to work.
When Larry was readmitted to Bergan Mercy on February 9, 1983, he complained of pain in the calf and thigh area of his left leg. Peters diagnosed Larry's condition as acute thrombophlebitis and treated him with 5,000 units of heparin every 8 hours. Larry continued to have pain in his left thigh and, 4 days after entering Bergan Mercy, complained of discomfort of his right chest area. Throughout this period, hospital nurses monitored Larry's condition, made notations on his hospital charts, and reported his condition to Peters, who continued the heparin.
Early on the morning of February 15, 6 days after his admission to Bergan Mercy, Larry called his nurse for help because he was nauseated and suffered from "dry heaves." His blood pressure dropped, his heart rate increased, and he suffered a "petit mal" seizure, for which a nurse administered oxygen. Larry's attending nurse telephoned Peters at his home. Peters ordered morphine and directed that Larry be taken to the intensive care unit. Shortly afterward, Larry became cold and clammy, then cyanotic and nonresponsive. The nurse again telephoned Peters and told him that Larry had gone into cardiac arrest. Peters immediately left for the hospital and, on arriving there, found that cardiopulmonary resuscitation was being administered to Larry. CPR throughout an hour produced no results. Larry died from cardiac arrest due to pulmonary embolism.
C.E. Jensen, Larry's father and special administrator of Larry's estate, filed a malpractice action against Bergan Mercy and alleged that the hospital, through its nurses, was negligent in failing to monitor Larry's condition, inform Peters concerning the details of Larry's condition, treat Larry properly, and obtain professional medical care for Larry during Peters' absence immediately before Larry's death.
In its answer, Bergan Mercy denied negligence and, as an affirmative defense, alleged that "the injuries, complications and subsequent death of [Lawrence Jensen] was [sic] partially due to his own negligence which caused and contributed to cause said injuries and complications and death...."
Evidence.
Dr. Peters noted that Lawrence Jensen, throughout Peters' care and treatment, was markedly overweight and had been admonished to lose weight. Jacquin Jensen, Larry's widow, testified that no one, including Larry, had mentioned a diet in a program to reduce Larry's weight. Nothing indicates that Larry did not try to lose weight. Various physicians acknowledged that there are risks from obesity, such as a greater likelihood of blood clots when an overweight person is injured and immobilized, thromboembolic disease, hypertension, and, generally, a significant decrease in life expectancy. Experts testified and found fault in Lawrence Jensen's care from the hospital's nurses or testified that the nursing care met the appropriate standard. Some witnesses testified that nurses for Lawrence Jensen should have concluded that the heparin dosage ordered by Peters was incorrect and should have obtained another physician to attend Larry. Others testified that the nurses appropriately followed Peters' orders and that a nurse's questioning a physician's order would be highly irregular. One physician, as an expert for Bergan Mercy, expressed the opinion that the primary, if not the only, cause of Lawrence Jensen's death was Peters' negligence.
Instructions and Verdict.
During an instruction conference, the court considered Jensen's tendered instructions and, with counsel, reviewed the court's proposed instructions.
Jensen requested, and the court refused, the following instruction:
INSTRUCTION NO. II
If the defendant hospital, through its employees in the course of their employment, knew, or in the exercise of reasonable care, skill and learning, should have known, that the treatment generated by Dr. Peters was improper, it became the duty of the hospital, through its said employees, to intervene and provide or obtain proper care for Larry Jensen.
Notwithstanding Jensen's objection, the court instructed the jury:
....
Defendant alleges that the injuries, complications and subsequent death of Mr. Jensen were partially due to his own negligence which caused and contributed to cause said injuries and complications and death, and whose negligence was more than slight and sufficient to bar recovery.
and
It is the duty of a patient to follow all reasonable and proper advice and instructions given him by his physician regarding the patient's care, activity and treatment.
If the death of the plaintiff's decedent resulted in whole or in part because the patient failed to follow his physician's instructions, then to that extent the plaintiff may not recover damages against the defendant hospital.
The jury returned a general verdict for Bergan Mercy.
Jensen claims that the court should have given instruction No. II regarding intervention by Bergan Mercy's staff. Jensen...
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