Keogan v. Holy Family Hospital

Decision Date31 December 1980
Docket NumberNo. 46690,46690
Citation95 Wn.2d 306,622 P.2d 1246
PartiesAnn M. KEOGAN, Administrator of the Estate of Timothy W. Keogan, Deceased, for and on behalf of herself as surviving spouse, and for Thomas W. Keogan et al., by and through their Guardian Ad Litem, Lawrence Cary Smith, Petitioners, v. HOLY FAMILY HOSPITAL, Country Homes Medical Center et al., Respondents.
CourtWashington Supreme Court

Morrow, Longfelder, Tinker & Kidman, Inc., P.S., Kerry D. Kidman, Albert Morrow, Seattle, Vovos, Voermans & Murphy, Mark E. Vovos, Spokane, for petitioners.

Halverson, Applegate & McDonald, Alan A. McDonald, Yakima, MacGillivray & Jones, Frank H. Johnson, Gregory G. Frazier, Spokane, for respondents.

HOROWITZ, Justice.

This case concerns a medical malpractice action against the doctors who treated a heart attack victim and against the hospital where he died. The trial jury returned a general verdict for the defendants. Because the trial court erred in refusing to give an informed consent instruction and in refusing to find certain defendants negligent as a matter of law in treating the deceased, we reverse the judgment in favor of defendants and remand the cause for trial to determine whether defendants' negligent conduct was the proximate cause of the patient's death occasioning the plaintiffs' suit for damages here.

A summary of the facts will demonstrate the basis for our holding.


On February 16, 1972, 37-year-old Timothy Keogan consulted his family physician, Dr. Kenneth Snyder, regarding intermittent mid-chest pain that Keogan had begun to experience upon mild exertion. Dr. Snyder did a physical examination and X-rayed Keogan's chest and abdomen. He also took a resting electrocardiogram (EKG) and cardiac enzyme tests. The resting EKG will show heart muscle death only while or shortly after it occurs; Keogan's EKG was within normal limits. The cardiac enzyme tests are short-term indicators of recent heart muscle death. X-ray will not show heart muscle damage.

Although Dr. Snyder testified that he suspected angina pectoris (which is usually accompanied by heart disease) as the cause of Keogan's chest pain, he neither informed Keogan of this suspicion of angina nor performed any of the three tests then readily available in Spokane to diagnose angina nitroglycerine, a treadmill EKG, or angiography.

These tests help diagnose angina in various ways. Nitroglycerine, when placed beneath the tongue during an angina attack, will quickly relieve the chest pain by dilating the blood vessels in the heart area, allowing blood to flow through the arteries without restriction. If nitroglycerine does not lessen chest pain, the possibility of angina can be discounted. Nitroglycerine testing was readily available to family physicians in 1972. A treadmill EKG is taken while the patient is exerting himself and will show whether insufficient oxygen is reaching the heart and thus causing angina. Although not generally available in family physicians' offices in 1972, it was widely used by specialists and there was testimony that it would have been 80 percent or more effective in diagnosing angina in Keogan's case. Angiography involves injecting an opaque dye into the coronary arteries to determine whether, and to what extent, the arteries are obstructed and may cause chest pain. It is highly accurate but was available only in specialists' offices and presented a risk of death of .2 to .3 of 1 percent in 1972.

Instead of performing or informing Keogan of the availability of these tests, of which the doctor was aware, Dr. Snyder, with no additional testing, diagnosed Keogan's condition as an inflammation of sternum cartilage. He advised Keogan to restrict his activities and scheduled another office visit. Dr. Snyder testified that Keogan "gave me somewhat of an argument" about the possibility of heart problems and that Keogan stated his belief that he was suffering from a flu virus that had recently affected his family.

On February 29, 1972, Keogan returned to Dr. Snyder complaining of pain and gastric problems after eating. There was testimony that this was a symptom of worsening angina, since it indicated that it was taking less effort by Keogan i. e., merely digestion to cause chest pain. Dr Snyder had received the results of the cardiac enzyme tests, which were not within normal limits; testimony as to the severity of the abnormality varied. After taking another resting EKG, which was not normal, and conducting another set of cardiac enzyme tests, Dr. Snyder prescribed for Keogan an antacid and Sorbitrate, a long-acting nitrate similar to nitroglycerine that is usually used for treatment of angina. Dr. Snyder told Keogan that Sorbitrate was for chest pain, but he did not tell his patient again of the possibility of angina and heart disease, or that Sorbitrate was prescribed for angina, or of possible diagnostic tests for angina.

Keogan's wife testified that in the following week Keogan called Dr. Snyder three times complaining of increasing chest pain radiating into his arms; Dr. Snyder denies these conversations. At about 3:00 a. m. on March 6, 1972, Keogan collapsed at home and was taken by ambulance to Holy Family Hospital's emergency room where he arrived at approximately 4:00 a. m. There was testimony that upon Keogan's arrival at the emergency room he had a 90 percent chance of survival with appropriate medical care. Mrs. Keogan testified that her husband was in pain, pale, sweating, and short of breath; emergency room physician Dr. Anthony Appel, Holy Family's employee, 1 testified that Keogan did not look bad when he first saw him 30 minutes after Keogan was brought to the hospital. 2 It was uncontroverted, however, that Keogan was on his hands and knees on the hospital bed in an effort to assuage his pain during most of the time he spent in the emergency room.

Dr. Appel did a brief physical examination and took Keogan's blood pressure, which was high. No EKG was performed. The Keogans told Dr. Appel that the tests taken by Dr. Snyder had shown nothing amiss, but Dr. Appel noted in the emergency room record that Keogan had complained to Dr. Snyder of "chest pain" in the past. He stated, however, that Keogan pointed to his upper stomach, and not his chest, in describing the pain he experienced in the emergency room. Believing that Keogan was suffering from anxiety, Dr. Appel prescribed Valium. This appeared to have no effect on his pain, and Keogan became nauseous.

Dr. Appel telephoned Dr. Snyder at about 4:45 a. m. Although the doctors' versions of the conversations vary, it appears that Dr. Snyder did not reveal the results of tests or the drugs earlier prescribed for Keogan and did not ask what procedures had been thus far taken at the hospital, while Dr. Appel did not disclose Keogan's arrival by ambulance nor treatment undertaken up to that time. Dr. Snyder testified that he assumed an EKG had already been performed at the hospital.

After talking to Dr. Snyder Dr. Appel returned to tell Keogan he was being released. However, on the Keogans' insistence, Dr. Snyder was contacted again and Keogan was admitted to a general medical care room at 5:30 a. m. Maalox and Valium were prescribed for him. At 6:40 a. m., a nurse on the general medical floor called Dr. Snyder about Keogan's deteriorating condition, poor color, and irregular, rapid pulse. Dr. Snyder prescribed by phone a non-narcotic analgesic and a tranquilizer used for nausea. These drugs had no effect on Keogan's condition. Nurses' notes at 7:30 a. m. recorded that Keogan's blood pressure was difficult to hear and that he was complaining of "severe chest pain continually." At 7:50 a. m., Dr. Snyder returned another call from the nurse and prescribed morphine and oxygen.

Dr. Snyder's partner, who was in the hospital on another matter, soon thereafter saw Keogan and ordered him moved to the hospital's cardiac care unit, where he arrived at 8:35 a. m. The first EKG performed at the hospital, taken at 9:15 a. m., showed substantial death of the heart muscle (heart attack). Keogan's condition quickly worsened; his heart stopped and he was resuscitated twice before dying at 1:35 p. m. March 6, 1972.

Keogan's wife and four children by a previous marriage began this action in Spokane County Superior Court against Dr. Snyder, Dr. Appel, and Holy Family Hospital. The trial jury by a vote of 10 to 2 returned a verdict for the defendants. Plaintiffs' motions for judgment notwithstanding the verdict and a new trial were denied.

The Court of Appeals, Division Three, originally affirmed the trial court in an opinion found at 22 Wash.App. 366, 589 P.2d 310 (1979) (Keogan I). Plaintiffs' motion for reconsideration was stayed pending this court's decision in Gates v. Jensen, 92 Wash.2d 246, 595 P.2d 919 (1979). At 24 Wash.App. 583, 601 P.2d 1303 (1979) (Keogan II) the Court of Appeals denied plaintiffs' motion even after consideration of the applicability of Gates. We granted plaintiffs' petition for review of the trial court's refusal to give proposed informed consent instructions and its refusal to find as a matter of law that the defendants had deviated from the medical standard of care applicable to the facts of this case.

We now reverse the Court of Appeals based on our answers to the following questions:

A. Did the trial court err in refusing to give proposed informed consent instructions?

(1) Did the trial court err in refusing to give an instruction informing the jurors Dr. Snyder had a duty to disclose to Keogan proposed treatment and alternatives, including diagnostic procedures, available to determine whether Keogan was experiencing angina under the facts of this case? Yes.

(2) Did the trial court err in refusing to give a general informed consent instruction which would have imposed a duty to disclose on Dr. Appel under the facts of this case? No.

B. Did the trial court err in refusing to find the defendants negligent as a...

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