Mead v. Adrian

• Decision Date: 08 October 2003
• Docket Number: No. 01-1858.,01-1858.
• Citation: 670 N.W.2d 174
• Parties: Patricia MEAD, as Executor of the Estate of Lucille Humpal, Appellant, v. Burton ADRIAN, M.D. and Iowa Physicians Clinic Medical Foundation d/b/a Integra Health, Appellees.
• Court: Iowa Supreme Court

670 N.W.2d 174

Patricia MEAD, as Executor of the Estate of Lucille Humpal, Appellant, v. Burton ADRIAN, M.D. and Iowa Physicians Clinic Medical Foundation d/b/a Integra Health, Appellees.

No. 01-1858.

Supreme Court of Iowa.

October 8, 2003.

David L. Baker and John L. Riccolo of Riccolo & Baker, P.C., Cedar Rapids, for appellant.

Gregory M. Lederer and James A. Gerk of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellees.

CARTER, Justice.

This is an appeal from the granting of a new trial in a medical malpractice action, which resulted in a substantial verdict for the patient's personal representative. The plaintiff is Patricia Mead, executor of the estate of Lucille Humpal, deceased. The defendant is Dr. Burton Adrian.¹

The grant of a new trial was posited on two grounds: inconsistency in allowing the jury to award both wrongful-death damages and lost-chance damages, and failure to adequately instruct the jury as to the basis for determining lost-chance damages. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

In April 1997 Lucille Humpal was seventy-three years old. During the first few weeks of that month, she began to feel weak and eventually became bedridden. By April 20 she was too weak to get out of bed, and an ambulance was summoned to her home. She was delivered to the emergency room of a Waterloo hospital. After a series of tests, she was released.

The results of a blood analysis revealed that Mrs. Humpal's white blood cell count was 27,000. When that result was shared with her personal physician, Dr. Burton Adrian, he ordered that she be admitted to the hospital as an inpatient. She entered the hospital at 9:30 a.m. on April 21.

At the time of her hospital admission, Mrs. Humpal had a distended abdomen and was complaining of severe lower abdominal pain. Dr. Adrian saw her in the hospital that afternoon. His tentative diagnosis of her condition was an infection of the urinary tract. Because she had indicated to hospital personnel at the time of her admission that she could not recall having any recent bowel movements, Dr. Adrian ordered laxatives and enemas. X-rays taken at this time were inconclusive.

Over the next four days, Mrs. Humpal received five enemas, but they produced no relief from her abdominal pain. Her abdomen continued to be distended and by April 24 had attained the size of a basketball. On April 25 Dr. Adrian suspected diverticulitis. He ordered additional x-rays, which revealed that Mrs. Humpal's colon had ruptured. Emergency surgery revealed an advanced infection of the area surrounding the ruptured colon. Mrs. Humpal died while the surgery was in progress. It was subsequently determined that she had been suffering from diverticulitis. Her cause of death was determined to be toxicity resulting from a spread of bacteria secondary to a ruptured diverticulum. Other facts that bear on the disposition of the appeal will be considered in our discussion of the legal issues presented.

I. The Issues Submitted to the Jury.

In her petition in this action, Mrs. Humpal's personal representative claimed wrongful-death damages based on the alleged negligence of Dr. Adrian. The elements of damage requested in the petition included loss of accumulation to the decedent's estate, interest on funeral and burial expenses, and physical and mental suffering.² During the trial, there were amendments to conform to proof that added claims for predeath loss of full mind and body and lost chance of survival.³ In addition, the personal representatives asked to amend to conform to proof and include claims for loss of services and support recoverable under Iowa Code section 613.15 (2001). That request was denied by the court as untimely.

At the conclusion of plaintiff's evidence, Dr. Adrian moved for a directed verdict. That motion was sustained with respect to the claim for loss of accumulation by the estate on the ground that there was insufficient evidence of such loss. The motion was overruled as to the other items of damage. The items of damage submitted for the jury's consideration were:

interest on burial expenses

predeath physical and mental pain and suffering

predeath loss of full mind and body

lost chance of survival

As to all of these items of damage, the jury was instructed that to recover the personal representative must prove that the damages claimed were proximately caused by Dr. Adrian's negligence and the amount of the damages. With respect to the claim for lost chance of survival, the jury was instructed:

Damages recoverable [for this item] are limited to the value of this loss of chance. This is measured by the difference between the chance of survival if treatment had been given at the earlier time, and the chance of survival at the time when treatment was given. Plaintiff may not recover for harm caused by the preexisting condition to which defendant's negligence did not contribute.

The jury found that the following damages were proximately caused by Dr. Adrian's negligence:

interest on burial expense $ 3,500 predeath physical and mental pain and suffering $100,000 predeath loss of full mind and body $ 25,000 lost chance of survival $125,000 TOTAL $253,500

II. The Motion for New Trial.

Following the jury's verdict, Dr. Adrian filed a motion for new trial in which he urged:

[The court submitted] both the traditional "all or nothing" damages and "lost chance of survival" damages to the jury. Both theories should not have been submitted to the jury. Submittal of both theories was not in accordance with Iowa law and resulted in improper, duplicative and excessive damages being awarded by the jury under the court's instructions. Plaintiff was fully compensated by the jury's award of damages for the traditional elements for wrongful death allowed by Iowa law. Nevertheless, the court's instructions allowed the jury to award an additional lump sum of $125,000 for the "lost chance of survival." Since it cannot be determined whether the jury found for plaintiff on the "all or nothing" theory or the "lost chance of survival" theory, a new trial is required.

The district court granted a new trial for the reasons urged in Dr. Adrian's motion and also for the reason that "the jury was not properly instructed on how to compute those [lost chance of survival] damages." The grant of a new trial was conditional on Mrs. Humpal's personal representative not agreeing to a remittitur of $125,000, the amount awarded for lost chance of survival. The personal representative did not agree to the remittitur.

The personal representative urges that both traditional death damages and lost-chance damages may be submitted to the jury. In addition, she contends that in the present case the recovery for lost-chance damages was not inconsistent with or duplicative of the other damages awarded. To resolve this contention, we must consider the basis for recovering damages under a theory of lost chance of survival.

This court has considered allowing damages for lost chance of survival on three prior occasions. The case of DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986), was an action by a plaintiff who was still living and seeking to recover damages for medical malpractice that would shorten her life expectancy. Traditional wrongful-death damages were not an issue because death had not occurred. Although the doctrine of lost chance of survival was discussed and approved in our opinion, there was no issue with regard to damages to be allowed under that theory. The district court's instructions in that case had limited recovery to past, unreimbursed medical expenses caused by the physician's negligence and past and future pain and suffering, including mental anguish. Consequently, the damage issue on appeal only concerned a sufficiency of the evidence to support the verdict under those instructions.

In Sanders v. Ghrist, 421 N.W.2d 520 (Iowa 1988), a claim was made that a doctor negligently failed to diagnose and treat a malignant tumor. A traditional wrongful-death recovery was sought against the doctor, and in addition a claim was made for "lost chance to survive the disease." Sanders, 421 N.W.2d at 521. The trial court submitted the traditional wrongful-death damages to the jury but declined the plaintiff's request to submit a claim for lost chance of survival. In a general verdict, the jury rejected the traditional wrongful-death claim. We held that the jury should have been given the opportunity to consider the alternative claim of lost chance of survival and that the trial court erred in not so instructing the jury. A new trial was ordered on all issues.

In Wendland v. Sparks, 574 N.W.2d 327 (Iowa 1998), a medical malpractice action was based on the failure of a doctor to attempt to resuscitate a patient. Based on deposition testimony by expert witnesses that the patient's chance of survival was less than probable, the district court granted summary judgment for the defendants. Although lost chance of survival had not been pleaded, it was raised in the personal representative's resistance to the motion for summary judgment. Among the summary judgment papers was deposition testimony indicating that the decedent had a ten percent chance of survival if resuscitation had been undertaken. We concluded that this was sufficient to permit a trier of fact to find that the decedent had sustained a loss for which damages could be awarded.

As developed in our case law, the last-chance-of-survival doctrine is not an alteration of the traditional rules for determining proximate cause, but, rather, the creation of a newly recognized compensable event to which those traditional rules apply. It is manifest from the Sanders and Wendland decisions that a personal representative may recover damages for a lost chance of survival as an alternative to a traditional wrongful-death recovery. Recovery in such instances is for the...