Kalsbeck v. Westview Clinic, P.A.

• Decision Date: 22 October 1985
• Docket Number: No. C1-85-446,C1-85-446
• Citation: 375 N.W.2d 861
• Parties: Laurel J. KALSBECK, as trustee for the next of kin of Thomas D. Kalsbeck, decedent, Appellant, v. WESTVIEW CLINIC, P.A., et al., Respondents.
• Court: Minnesota Court of Appeals

Page 861

375 N.W.2d 861

Laurel J. KALSBECK, as trustee for the next of kin of Thomas

D. Kalsbeck, decedent, Appellant, v. WESTVIEW CLINIC, P.A., et al., Respondents.

No. C1-85-446.

Court of Appeals of Minnesota.

Oct. 22, 1985.

Review Denied Dec. 30, 1985.

Syllabus by the Court

1. A trial court has wide latitude in determining the propriety of a specific jury instruction.

2. Even though appellant's requested instruction would have been correct, a new trial will not be granted where certain requested jury instructions are refused, but

the given charge fairly and correctly states applicable law.

3. Before a litigant is entitled to a specific jury instruction, there must be evidence to support the theory advanced, and the theory must be consistent with the applicable rules of law governing the rights and duties of the parties.

4. The jury verdict was supported by the evidence.

Terry L. Wade, David McKenna, St. Paul, for appellant.

Terence J. O'Loughlin, St. Paul, for respondents.

Heard, considered and decided by LANSING, P.J., and PARKER and RANDALL, JJ.

OPINION

RANDALL, Judge.

In this medical malpractice action, plaintiff appeals from the trial court's order denying a new trial and from the judgment entered following a jury verdict for defendant. Appellant contends that the trial court erred in refusing to give certain requested jury instructions, and that the verdict was not supported by the evidence. We affirm.

FACTS

Appellant's decedent, her husband Thomas Kalsbeck (Kalsbeck), died on January 27, 1983, after a short illness. He was 47 years old. While the direct cause of death was cardiac arrest, the death certificate and the attending physician's death summary indicate the following final diagnosis:

1. Overwhelming pneumonia, penicillin-resistant staphylococci;

2. Diabetes mellitus, out of control;

3. Respiratory arrest, secondary to No. 1 and No. 2;

4. Cerebral anoxia and resulting coma, secondary to No. 3;

5. Repeated cardiac arrests secondary to Nos. 3 and 4.

The events of the few days preceding Kalsbeck's death are as follows: Kalsbeck and appellant were examined by their family doctor, respondent Dr. James Haight, on January 24, 1983, a Monday. Both Kalsbeck and appellant had been ill since the previous Thursday. Appellant described their symptoms as including sore throats, coughing, and a general aching "down to the bone." By Monday, Kalsbeck was suffering more than appellant. He was congested, coughing, and had even coughed up some blood that morning. His right side was painful, making it difficult to cough.

According to Dr. Haight, however, Kalsbeck did not look "that sick," and the doctor was surprised when x-rays showed pneumonia. Dr. Haight testified that his impression at the time of the office visit was that Kalsbeck's pneumonia was probably viral rather than bacterial. Pneumonia caused by a viral organism cannot be treated effectively by antibiotics or medication of any kind. Dr. Haight favored viral pneumonia because Kalsbeck's white blood count was normal. This count is usually elevated with bacterial pneumonia. However, the blood test also disclosed a "shift to the left" of the differential count, which caused Dr. Haight to believe it was possible the pneumonia was bacterial. He therefore decided to treat Kalsbeck with two antibiotics--Bicillin, which was injected in the office, and Ampicillin, which was prescribed. These two antibiotics are ordinarily effective against approximately 80-90% of the bacteria which cause pneumonia. They are not effective against most types of staphylococcal bacterial pneumonia (staph), which was the type of pneumonia that was ultimately diagnosed after Kalsbeck was admitted to the hospital, and which is listed on the death summary as the primary cause of death.

Viral pneumonias account for approximately 50% of all pneumonias. Of the bacterial pneumonias that make up the remaining 50%, only 1-3% are staph. That figure may actually be even lower for patients such as Kalsbeck, since staph acquired by already hospitalized patients constitutes most of its occurrences. In fact, of the 4 family practitioners who gave expert testimony, only one had ever diagnosed a case of non-hospital acquired staph, even though each of them had at least 10 years experience. Dr. Haight had never seen a patient with staph, and he testified that it never occurred to him that Kalsbeck might have staph.

Expert testimony established that the incidence of staph increases following a bout of influenza. While one testifying doctor stated that he believed that the Kalsbecks had influenza, other experts disputed his conclusion, and testified that the illness could have been the common cold. In any case, Dr. Haight testified that he was not aware of the increase of staph following influenza.

An additional and essential element of Kalsbeck's condition is that he was diabetic. He contracted diabetes only 3 years earlier, at the age of 44, and was therefore a Type II, or adult-onset diabetic. Type II diabetics have residual pancreatic function, and so their bodies continue to produce some insulin. These diabetics may or may not require additional insulin to supplement their natural supply. Type I, or juvenile diabetes, is acquired in childhood and involves an absolute absence of insulin. These diabetics have no reserve capacity to produce insulin, and they react quickly and strongly to excess insulin as well as to the lack of insulin. Their blood sugar levels are usually more volatile than those of a Type II diabetic.

Kalsbeck was an insulin dependent Type II diabetic. This may have been at least partially due to his mild obesity, which adds stress to the body and can cause the diabetic's insulin requirement to increase. If Kalsbeck had been within the normal weight limits for his age, he might not have needed insulin.

A primary consequence of diabetes is a reduced ability to fight infections. Also, the presence of an infection aggravates a diabetic condition, making it more difficult to control. The most typical aggravating result of an infection in a diabetic is an increase in the blood sugar. Once the blood sugar is elevated, the resistance to infection decreases even further. Thus, the relationship between diabetes and infection is circular. When a diabetic has an infection they must monitor their condition more closely than they do on a regular basis, and must make an extra effort to keep their blood sugar level down.

As most diabetics do, Kalsbeck monitored his diabetes at home, using chemical strips which test the amount of sugar being spilled over into the urine from the blood. The test does not give an accurate reading of the blood sugar level, since each diabetic has a different "spill threshold," i.e., they spill sugar into the urine at blood sugar levels which differ among diabetics. Nevertheless, for years it was the only practical way for diabetics to have any idea of their blood sugar levels without visiting a medical laboratory. In just the last few years, home blood testing kits became available so that many diabetics have now abandoned the less accurate urinalysis method.

The facts are not clear on how well controlled Kalsbeck's diabetes was. He had not been hospitalized except when he was initially diagnosed, and he rarely missed a day of work because of illness. However, he did not regularly inform Dr. Haight of the results of his urine tests, and he resisted the doctor's recommendation that he come in every 3 months to have a blood sugar taken. The few times he did come in to the office, his blood sugar was often elevated. The normal range for blood sugar is 70-120 mg. percent. On one occasion, Kalsbeck's blood sugar was 400, and another time it was 188. Dr. Haight testified that Kalsbeck was "basically fairly well controlled," and "reasonably well controlled." Again, one difficulty in determining whether a diabetic is in good control is that even consistently elevated blood sugars do not always noticeably affect their general feeling of well being and good health, (particularly in Type II diabetics.) Here, without a more detailed history of Kalsbeck's blood sugar levels, it is impossible to know how well he managed his disease.

When Dr. Haight examined Kalsbeck on Monday, he took a blood sugar but did not get the results back until late that afternoon. When he did view the results, they showed that Kalsbeck had a blood sugar of 502. Upon learning this, Dr. Haight telephoned the Kalsbecks at home, and spoke with appellant. Dr. Haight testified that he was considering hospitalization for Kalsbeck, but he decided against it when appellant told him that she and Kalsbeck were not feeling any worse than they had been in the morning when they saw Dr. Haight. At trial, Dr. Haight testified that, since the antibiotics he had prescribed take some time before their effect is felt, and since Kalsbeck was not feeling any worse, he believed it was reasonable to wait until the next day before changing the treatment or hospitalizing Kalsbeck. In addition, Dr. Haight also questioned the accuracy of the blood sugar test, since the lab technician told him that the tests had been running high that day, and he had not expected Kalsbeck to have such an elevated blood sugar. This also influenced him in his decision not to hospitalize Kalsbeck at that time.

In his telephone call, Dr. Haight explained his concern about the elevated blood sugar to appellant, and advised her to force fluids on Kalsbeck, which, in addition to increasing the insulin dosage, is a method used to lower blood sugar levels. Dr. Haight did not speak with Kalsbeck, but only to appellant. He did not instruct Kalsbeck to increase his insulin dosage, or to get a follow-up blood sugar the next morning at the office, or to monitor his blood sugar through urine tests at home. Although Dr. Haight testified that he did tell appellant to either call him or bring Kalsbeck in to the office the next...