Miller v. Kennedy

Decision Date20 May 1974
Docket NumberNo. 1766--I,1766--I
Citation11 Wn.App. 272,522 P.2d 852
PartiesRichard R. MILLER, Appellant, v. John A. KENNEDY, M.D., Respondent.
CourtWashington Court of Appeals

Murray, Scott, McGavick, Gagliardi, Graves, Lane & Lowry, Edward M. Lane, Tacoma, for appellant.

Davies, Pearson, Anderson, Gadbow & Hayes, P.S., Wayne J. Davies, Seattle, for respondent.

CALLOW, Judge.

The plaintiff, Richard R. Miller, appeals from the trial court's refusal to grant a motion for a new trial or judgment n.o.v. following a verdict for the defendant in a medical malpractice case. The issues concern instructions on res ipsa loquitur, the physician as a guarantor of results, the liability of a physician for a mistake in judgment and 'informed consent.' Also presented and discussed are issues regarding the rejection of certain proposed exhibits and the trial court's removal of the claim of faulty post-biopsy care from the jury.

Dr. Kennedy is a board certified specialist in internal medicine, with sub-specialties in heart and nephrology, practicing in Tacoma, Washington. The plaintiff first consulted with Dr. Kennedy on January 14, 1970, complaining of fatigue, lightheadedness, tiring out easily and becoming shortwinded with exercise. Dr. Kennedy examined Mr. Miller, wrote down his medical history and took an electrocardiogram. At that time, Dr. Kennedy found that Mr. Miller had first degree heart block. On January 20, 1970, Mr. Miller returned for futher examination and was found to have second and third degree heart block. Mr. Miller was immediately hospitalized and placed in intensive care. On January 26, 1970, Mr. Miller was removed from intensive care and placed in a ward.

Many tests were performed to assist Dr. Kennedy in his efforts to diagnose the cause of Mr. Miller's heart disease. Various tests showed evidence of a kidney problem, and therefore Dr. Kennedy felt that a kidney biopsy was necessary. Witnesses for both parties testified that the decision to perform the biopsy was not malpractice. However, Mr. Miller testified that Dr. Kennedy did not advise him of the risk of the loss of the kidney nor explain the alternative ways of performing biopsies. The plaintiff further testified that he would not have consented to the biopsy had he known there was a risk of loss of the kidney. Dr. Kennedy testified that he did so inform the patient, and this testimony is substantially corroborated by the hospital record and by the prior conduct of the doctor in which he diagramed and explained in detail to Mr. Miller what was happening in his heart.

In performing the biopsy, the biopsy needle was inserted some 3 or 4 centimeters above the intended biopsy site. The kidney is encased in an outer capsule covering, inside of which there is an area called the cortex. The cortex surrounds the medulla which contains the nephrons, which are filtering, absorbing and secreting units doing the essential work of the kidney. The process of forming urine begins when arterial blood flows into a tuft of capillaries, called the glomerulus. The glomerulus is enclosed in a double membrane which leads into a tubule. The glomerulus, membranes and tubule form a single nephron. The glomerulus initially filters out some of the passing blood as do the membranes. The blood fluid then enters the tubule of the nephron where useful sugars, salts and water are reabsorbed by small capillaries and returned to the main bloodstream. The capillaries in turn secrete ammonia through the tubule wall into the fluid remaining which is flowing into the collecting tubule. The resulting comparatively small amount of waste is urine. The medulla area of the kidney contains approximately two and a half million nephrons. Inside the medulla area is the calyceal area, the collecting system of the kidney.

The plaintiff alleged that the biopsy needle was negligently inserted penetrating the calyceal system of the kidney causing damage and injury which eventually resulted in loss of the kidney. The defendant contended that the calyceal area was not punctured and that a small artery may have been injured. There is no dispute in the testimony that the loss of the kidney proximately resulted from the kidney biopsy, that the kidney was healthy prior to the biopsy and that the biopsy specimens were negative as to any of the conditions for which the biopsy was performed. The position of the plaintiff is that the defendant violated the standard of care while the defendant states that the standard of care was met and claims that an unfortunate chance led to the result.

Following the biopsy, the plaintiff remained in the hospital from January 29, 1970, until February 26, 1970, suffering continual bleeding from his kidney and considerable pain. On February 26, 1970, Dr. Kennedy called upon another physician, Dr. Osborne, to examine Mr. Miller. In spite of his weakened condition and extensive bleeding, Mr. Miller was released from the hospital. Mr. Miller was again, at his own insistence, examined by Dr. Osborne, who removed blood clots from his bladder and returned him home. After the condition returned, Mr. Miller was again hospitalized on March 30, 1970. It was suggested that an operation be performed to see if the upper portion of the kidney, where the bleeding was taking place, could be surgically removed in an attempt to save the balance of the kidney. On April 4, the date set for the surgical procedure, Mr. Miller hemorrhaged, and the surgical procedure was expedited. Dr. Osborne performed this surgery, attempted to remove the upper portion of the kidney, but was unable to do so. Finally, he was required to do a complete nephrectomy, removing the entire kidney. Mr. Miller was released from the hospital on April 10, 1970.

The plaintiff submits that the jury should have been instructed on res ipsa loquitur. The legal doctrine of res ipsa loquitur eliminates the need to prove negligence where (a) the apparatus which caused injury was under the exclusive control of the defendant, (b) the accident ordinarily would not have occurred unless the defendant had been negligent, and (c) the accident was not caused by any action of the plaintiff. Emerick v. Mayr, 39 Wash.2d 23, 234 P.2d 1079 (1951); Ewer v. Goodyear Tire & Rubber Co., 4 Wash.App. 152, 480 P.2d 260 (1971).

In ZeBarth v. Swedish Hosp. Medical Center, 81 Wash.2d 12, 18, 499 P.2d 1 (1972), as in this case, the instruction proposed defined circumstantial evidence, direct evidence and res ipsa loquitur. 1 The plaintiff-appellant challenges the failure of the trial court to give this instruction claiming that the evidence made the instruction imperative. We agree that, under ZeBarth, the instruction should have been given. ZeBarth v. Swedish Hosp., in adopting the classic statement respecting res ipsa loquitur as applied to medical malpractice from Horner v. Northern Pac. Beneficial Ass'n Hosps., Inc., 62 Wash.2d 351, 382 P.2d 518 (1963), observed that there must be exclusive control of the instrumentality in the defendant and no voluntary participation or contribution by the plaintiff to the acts producing the injury. If such circumstances exist, then negligence may be deduced 2 without further proof in three situations: (1) where the act causing the injury is so obviously negligent that negligence may be inferred as a matter of law, (2) when people would know from experience that the result would not have happened without negligence, (3) when a physician testifies that the bad result would not have occurred if proper care had been used. In this case, the doctor had exclusive control of the instrumentality, and the patient did not participate in the procedure. The circumstances present the inquiry whether an instruction on res ipsa loquitur should have been given. It cannot be said from the vantage point of an unskilled person that the insertion of a biopsy needle into the calyceal area was so palpably negligent that an inference of negligence follows, nor can it be said that the general experience of most people indicates this would not have happened without negligence.

This leaves only the inquiry whether the third situation as recognized under Washington law was present, to wit, an instruction should be given on res ipsa loquitur when medical doctors testify that the injury would not have happened but for some negligent action on the part of the treating physician. ZeBarth v. Swedish Hosp. Medical Center, Supra, 81 Wash.2d at 19, 499 P.2d 1. The testimony of the doctors called as witnesses is in conflict. However, the jury was free to believe the testimony of one doctor and disregard the testimony of all the others. The testimony of the medical witness testifying on behalf of the plaintiff was such that the trier of the fact could deduce from that testimony that the defendant was negligent. The law concerning the propriety of instructing on res ipsa loquitur has been the subject of controversy as reflected in ZeBarth v. Swedish Hosp. Medical Center, Supra; Zukowsky v. Brown, 79 Wash.2d 586, 488 P.2d 269 (1971); Douglas v. Bussabarger, 73 Wash.2d 476, 438 P.2d 829 (1968), and Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973, 31 A.L.R.3d 1100 (1967). The currently prevailing trend of the Washington cases would instruct the jury that it could infer negligence when the plaintiff's evidence supports the deduction that the injury would not have occurred otherwise. 3 Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972). They were not so instructed here. As stated in ZeBarth, 81 Wash.2d on page 22, 499 P.2d on page 7:

Res ipsa loquitur does not, and did not here, operate to deprive defendant hospital of its defense on the merits. Inferences of negligence arising from the doctrine and evidence were met with persuasive evidence to the contrary. But, although defendant presented weighty, competent and exculpatory proof of due and reasonable care...

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