Kelley v. Wiggins, 86-117

• Decision Date: 23 February 1987
• Docket Number: No. 86-117,86-117
• Citation: 291 Ark. 280,724 S.W.2d 443
• Parties: , 71 A.L.R.4th 1005 Dr. Manuel KELLEY, et al., Appellants, v. Alvis WIGGINS, Administrator of the Estate of Melinda Wiggins, et al., Appellees.
• Court: Arkansas Supreme Court

Page 443

724 S.W.2d 443

291 Ark. 280, 71 A.L.R.4th 1005

Dr. Manuel KELLEY, et al., Appellants, v. Alvis WIGGINS, Administrator of the Estate of Melinda Wiggins, et al., Appellees.

No. 86-117.

Supreme Court of Arkansas.

Feb. 23, 1987.

Friday, Eldredge & Clark by Phillip Malcom, Little Rock, Daggett, Van Dover, Donovan & Cahoon by Jimason J. Daggett, Marianna, Barber, McCaskill, Amsler, Jones & Hale, Little Rock, for appellants.

George Bailey, Little Rock, Foehner & Vuylsteke, St. Louis by Kenneth K. Vuylsteke, for appellees.

NEWBERN, Justice.

This is a wrongful death case. The appellants, Dr. Manuel Kelley, Lee County Cooperative Clinic, and Lee Memorial Hospital were allegedly negligent in their treatment of Melinda Wiggins, causing her to die as the result of eclampsia, a condition involving hypertension, which occurs in pregnant women. The clinic and the hospital were immune from suit, so their insurers, appellant Ambassador Insurance Company for the clinic and appellant St. Paul Fire and Marine Insurance Company for the hospital, were sued directly pursuant to Ark.Stat.Ann. § 66-3240 (Repl.1980).

The appellees sought damages of $2,000,000. Based on the jury's verdicts, the court's judgment awarded damages in favor of Hope Wiggins, the daughter born of the fatal pregnancy, for $325,000; Frances Graham, Melinda's mother, for $100,000; Alvis Wiggins, Melinda's husband, for $75,000, and Melinda Wiggins's estate for $300,000. The total of $800,000 was adjudged against Dr. Kelley, St. Paul Fire and Marine Insurance Company, and Ambassador Insurance Company. The judgments against the insurance companies were limited to $300,000 (St. Paul) and $100,000 (Ambassador), the limits of their liability insurance coverage.

The appellants have raised a number of points for reversal. In none of their arguments do we find sufficient merit to require reversal of the judgments based on jury verdicts against each of them.

As the two insurer appellants assert that the evidence was not sufficient to support the verdicts, we will state the facts we find to be supported by the evidence. We view the evidence most favorably to the appellees, and we will affirm if there is any substantial evidence to support the verdicts. Arkansas Louisiana Gas Co. v. Hutcherson, 287 Ark. 247, 697 S.W.2d 907 (1985); Handy Dan Home Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985).

Melinda Wiggins gave birth to a child in 1975. During that pregnancy she made visits for prenatal care to the clinic. In the opinion of an expert who testified for the appellees, her clinical records showed a normal pregnancy except for blood pressure readings showing she suffered hypertension. Her hypertension was noted on the records of the University of Arkansas Medical Center where she gave birth in 1975.

After that pregnancy Melinda returned to the clinic to obtain help with contraception. Clinic records showed her blood pressure had returned to normal. In late 1977 or early 1978 she became pregnant again, and she again made prenatal visits to the clinic. She was seen there by a woman she and members of her family thought was a physician but who was a physician's assistant, Pat Krueger. They called her Dr. Krueger or Dr. Pat. Melinda, during her second pregnancy, was not seen by a physician at the clinic either on her first visit or any subsequent visit. Appellant Dr. Kelley was the medical director of the clinic, and he initialled the reports prepared by Krueger with respect to Melinda's visits. No notation was made of the hypertension Melinda experienced in her first pregnancy.

Appellee Frances Graham, Melinda's mother, noticed in May, 1978, that Melinda was beginning to suffer edema, with swelling not only in her feet, but in her legs, arms, hands, and face. She was complaining of headaches and nausea and pain in her upper abdomen. The edema progressed, and the other symptoms became worse in June. She visited the clinic but was given no dietary advice or diuretic. In her first pregnancy she had been placed on a salt-free diet. Melinda visited the clinic on July 10, 1978. On July 14, she complained to her mother of her pain. It was suggested by her mother that she return to the clinic. She called the clinic, but Pat Krueger was not there. She was told to come in on Monday, which would have been July 16. On the night and early morning of July 14 and 15, 1978, Melinda's pain and nausea became so severe that her husband, appellee Alvis Wiggins, took her to the emergency room at the Lee Memorial Hospital.

Dr. Kelley was at the hospital. He examined Melinda and ordered a laboratory test of her blood. She was unable to give a urine specimen, and Dr. Kelley did not order that one be taken by catheterization. In addition to her other complaints, Melinda told the doctor of stuffiness in her head as well as pain near her right shoulder blade.

Dr. Kelley found her blood count, pulse, and blood pressure were normal. He apparently was unable at that time to compare her blood pressure with her clinic records, however, as he called Pat Krueger from the hospital and asked her about any changes in Melinda's blood pressure. He also asked whether Melinda had previously had any protein in her urine. Pat Krueger answered she had not. On the hospital record Dr. Kelley listed three possible diagnoses: cholecystitis, upper respiratory infection, and pre-eclampsia. The signs of pre-eclampsia are high blood pressure, edema, and protein in the urine. Pre-eclampsia becomes eclampsia when a seizure or convulsion occurs.

Melinda was released from the hospital at approximately 3:30 a.m. on Sunday, July 16, 1978, with a prescription for ampicillin and Robitusin for her cold. She returned home with her husband where she suffered her first convulsion at about 6:00 a.m. She was rushed back to the hospital and admitted. Marty Roberts, a nurse employed by the hospital, called Dr. Kelley to say Melinda was there. He did not tell the doctor that she had suffered a convulsion. Dr. Kelley said he would come in to the hospital "after a while." Dr. Kelley received a second call, this one from Nurse King at the hospital, in which he was told Melinda was having a seizure. He prescribed valium and rushed to the hospital where he began making arrangements to have Melinda transferred to a larger hospital. She ultimately was sent by ambulance to the University of Arkansas Medical Center at Little Rock.

When Melinda was admitted to Lee Memorial Hospital, she was not constantly attended. When one of two seizures she suffered at the hospital began, a nurse had to be summoned to her room to place in her mouth a device to keep her from gagging on her tongue.

For the trip to Little Rock, Dr. Kelley testified he gave more valium to the ambulance attendants, but the hospital record did not show it. Melinda suffered at least one additional seizure on the way. When she arrived at the Little Rock hospital she was given magnesium sulfate. Magnesium sulfate, the preferred drug for treatment of convulsions, was available at Lee Memorial Hospital. She was delivered of her child, appellee Hope Wiggins, by Caesarean section. Melinda then lapsed into a coma and died on July 29, 1978. Hope's premature birth required she be kept at the Little Rock hospital for two months, and, although she is now able to function almost normally, she has lingering respiratory problems.

We will address each argument raised by each appellant or combination of appellants. First we will discuss each appellant's contentions bearing on the determination of liability, and then we will discuss their arguments that the damages awarded were improper.

1. Dr. Kelley

a. Improper references to insurance

Dr. Kelley contends two medical expert witnesses were asked questions which implied that he was insured against medical malpractice claims. His contention is that these improper questions were asked in a trial which was permeated with references to insurance due to the fact that it was a direct action against two insurance companies. He argues that the appellees' counsel intentionally mentioned insurance numerous times to inflame the jury into awarding large amounts of damages.

The appellants seem to recognize there was no way that references to insurance could have been kept out of the trial in view of the fact that the action was against two insurers. Thus, they have focused on the questions they argued implied insurance coverage of Dr. Kelley. The first question noted was asked of Dr. Whaley who was called as a witness for Dr. Kelley. He was asked and answered as follows:

Question: Doctor do you know this lawsuit is against St. Paul Insurance Company?

Answer: I have heard you say that.

Question: Is that the biggest malpractice insurance carrier in arkansas?

Upon objection by Dr. Kelley's attorney, a conference out of the jury's presence was held, and, in effect, the objection to the question was sustained. Upon returning to open court, the question was withdrawn. The judge asked the jurors if they could ignore the question, and they indicated they could.

The second specific instance of which Dr. Kelley complains occurred when counsel for the appellees cross-examined a Dr. Ransom about his malpractice insurance. He was asked whether he had insurance coverage with St. Paul. He said he did not know. He was then asked if his insurance premium would increase if a large judgment were awarded against a doctor. He said he did not know.

Dr. Kelley cites Shamblin v. Albright, 278 Ark. 565, 647 S.W.2d 470 (1983), and Hively v. Edwards, 278 Ark. 435, 646 S.W.2d 688 (1983), in each of which we held the trial court did not abuse its discretion by precluding questions which would have alerted the jury that a defendant physician was covered by malpractice insurance. A reading of those cases makes it clear that we have no absolute prohibition against allowing the mention of insurance in malpractice actions. In both...