Natanson v. Kline, No. 41476

CourtUnited States State Supreme Court of Kansas
Writing for the CourtWilliam Tinker, Wichita, argued the cause, and Getto McDonald, Arthur W. Skaer, Jr., Hugh P. Quinn, William Porter, Alvin D. Herrington, Darrell D. Kellogg, Richard T. Foster, W. D. Jochems, J. Wirth Sargent, Emmett A. Blaes, Roetzel Jochems, Robert
Citation186 Kan. 393,350 P.2d 1093
Docket NumberNo. 41476
Decision Date09 April 1960
PartiesIrma NATANSON, Appellant, v. John R. KLINE and St. Francis Hospital and School of Nursing, Inc., Appellees.

Page 1093

350 P.2d 1093
186 Kan. 393
Irma NATANSON, Appellant,
v.
John R. KLINE and St. Francis Hospital and School of
Nursing, Inc., Appellees.
No. 41476.
Supreme Court of Kansas.
April 9, 1960.

Page 1094

Syllabus by the Court

1. In an action for damages founded on malpractice against a hospital and the physician in charge of its radiology department to recover for injuries sustained as a result of radiation therapy with radioactive cobalt, alleged to have been given in an excessive amount, it is held: As more particularly set forth in the opinion, the evidence

Page 1095

did not establish negligence against the defendants as a matter of law.

2. The code of civil procedure requires the trial court to give general instructions to the jury, with or without request having been made for the same (G.S.1949, 60-2909, Fifth). Under this provision of the code the court must define the issues and state at least generally the law applicable thereto.

3. In an action for damages founded on malpractice, upon request it is the duty of the trial court to instruct the jury with respect to the law governing the case, explaining the precise questions at issue upon which there has been evidence presented.

4. Where no immediate emergency exists, a physician violates his duty to his patient and subjects himself to liability for malpractice, upon facts and circumstances more particularly set forth in the opinion, if he makes no disclosure of significant facts within his knowledge which are necessary to form the basis of an intelligent consent by the patient to proposed cobalt irradiation treatment.

5. Physicians, like other persons, are subject to the doctrine of respondeat superior. Where the physician has the actual or potential right to control the servant, the doctrine applies whether the person administering the treatment, or having a part therein, be a layman, a physician or a nurse.

6. Where a patient suffers injury from cobalt irradiation therapy, no presumption of negligence of the physician is to be indulged from the fact of injury or adverse result of his treatment of the patient.

Wayne Coulson, Wichita, argued the cause, and Homer V. Gooing, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell and Willard B. [186 Kan. 394] Thompson, Wichita, were with him on the briefs, for appellant. Hugo T. Wedell, Wichita, of counsel.

William Tinker, Wichita, argued the cause, and Getto McDonald, Arthur W. Skaer, Jr., Hugh P. Quinn, William Porter, Alvin D. Herrington, Darrell D. Kellogg, Richard T. Foster, W. D. Jochems, J. Wirth Sargent, Emmett A. Blaes, Roetzel Jochems, Robert G. Braden, J. Francis Hesse, James W. Sargent, Jr., Stanley E. Wisdom, Vincent L. Bogart, Cecil E. Merkle, John W. Brimer and Harry L. Hobson, Wichita, were with him on the briefs, for appellee, St. Francis Hospital and School of Nursing, Inc.

W. A. Kahrs, Wichita, argued the cause, and Robert H. Nelson and H. W. Faning, Wichita, were with him on the briefs, for appellee, John R. Kline.

SCHROEDER, Justice.

This is an action for malpractice against a hospital and the physician in charge of its radiology department to recover for injuries sustained as the result of radiation therapy with radioactive cobalt, alleged to have been given in an excessive amount.

The plaintiff (appellant), Irma Natanson, suffering from a cancer of the breast, had a radical left mastectomy performed on May 29, 1955. At the direction of Dr. Crumpacker, the surgeon who performed that operation, the plaintiff engaged Dr. John R. Kline, a radiologist, for radiation therapy to the site of the mastectomy and the surrounding areas.

Dr. Kline, a licensed physician and specialist in radiation therapy, was head of the radiology department at St. Francis Hospital at Wichita, Kansas. The plaintiff seeks damages for injuries claimed to have been sustained as a result of alleged acts of negligence in the administration of the cobalt radiation treatment. Dr. Kline and the hospital were named as a defendants (appellees).

The case was tried to a jury which returned a verdict in favor of both defendants. The plaintiff's motion for a new trial having been denied, this appeal followed specifying various trial errors.

Page 1096

The questions controlling the decision herein relate to the giving of instructions by the trial court.

It will be unnecessary to relate in detail all the facts presented by the evidence as abstracted, consisting of more than three hundred pages, to dispose of the issues on appeal.

The jury was submitted two special questions. In the first it found that the defendants were not guilty of any act or acts of negligence which were the proximate cause of plaintiff's injury. [186 Kan. 395] The jury having found in the negative on the first, the second question required no answer.

It must beconceded, insofar as the evidence is concerned, that all presumptions are, and must be, in favor of the verdict. All issues of fact have been resolved in favor of the defendants. Lord v. Hercules Powder Co., 161 Kan. 268, 167 P.2d 299; and Beye v. Andres, 179 Kan. 502, 296 P.2d 1049.

The appellant contends, however, the uncontradicted evidence shows the defendants negligent as a matter of law.

Dr. Kline was called by the plaintiff to testify in the trial court and in great detail counsel examined Dr. Kline to educate the court and jury concerning cobalt radiation therapy in the treatment of cancer. A short summary in rough will serve as a basis for further discussion.

The purpose of any irradiation therapy is to destroy tissue. The theory of destruction of cancer by irradiation therapy is that when treatment is given in a series of doses (fractionation in medical terms), the greater ability of normal tissue to recover from irradiation effects enables it to survive while the cancerous tissue is destroyed.

Dosages of irradiation are expressed in roentgen. All forms of irradiation have some point of maximum, or one hundred per cent, dosage and diminish as they penetrate deeper into the body. In the case of X-rays the point of maximum dosage is in the skin. In the case of cobalt irradiation the maximum dosage is received at a point about five millimeters beneath the outer surface of the skin. The primary advantages of cobalt irradiation over X-ray irradiation are deeper penetration and less skin injury. The amount of X-ray which can be administered is governed in a large measure by the amount which the skin can tolerate. The amount of cobalt irradiation which can be administered is governed by the tolerance of the tissues lying five millimeters below the outer surface of the skin.

By 'equilibrium' dose in relation to radioactive cobalt is meant the maximum dose, which occurs about five millimeters below the outer surface of the skin. 'Tumor' dose means the quantity received at the known or assumed depth of the tumor.

Dr. Kline ordered the administration of cobalt irradiation for the appellant in 'routine fashion'. To him and to his assistant, Dr. Somers, this meant a tumor dose of 4,400 roentgen delivered to the supraclavicular area in a period of sixteen days. For this purpose [186 Kan. 396] the tumor was assumed to extend from outer surface in front to outer surface behind. 'Routine fashion' also meant a dosage of 4,800 roentgen delivered over the outer two centimeters of the remainder of the left chest from a point at the rear portion of the left side of the patient's body around past the breast bone in a period of twenty-three days. It also meant an approximately equal dosage to the outer two centimeters over the breast bone including the chain of lymph nodes running longitudinally along each side of the breast bone.

Material to further discussion is the fact that the prescription or outline of treatment called for 4,800 roentgen to be delivered to the outer two centimeters of the chest wall. It also directed that this treatment be delivered by means of a rotating beam. According to the testimony of the appellant's husband the rotational equipment had not been installed and ready for use at the time of the appellant's first treatment. It was installed and ready for use soon thereafter.

A radiologist, who administers cobalt irradiation treatment with rotational equipment,

Page 1097

must have the assistance of a specialist in physics. Dr. Kline's assistant was a hospital employee by the name of Darter who determined by necessary computations how to administer the desired quantity of radiation, ordered by Dr. Kline, by means of a moving beam. Darter had graduated from Wichita University with a B.S. degree the preceding spring and had a six months' special course on irradiation therapy at Massachusetts Institute of Technology. His actual experience with radioactive cobalt therapy began with the installation of the unit at the St. Francis Hospital on January 29, 1955, some four months before the appellant's treatment began.

Highly summarized, the evidence upon which the appellant relies is that the radioactive cobalt beam was delivered at an angle to the chest wall in an effort to avoid injury to the lungs. In making the calculations to achieve the tumor doses (one and one-half to two centimeters deep), the equilibrium doses (five millimeters deep) were not calculated by Darter.

Dr. Paul A. Roys, an assistant professor of physics at Wichita University, who was a specialist in the field of nuclear physics of which radiation physics is a part, was called to testify concerning his calculations of the roentgen delivered to various parts of the appellant's chest wall in accordance with the time chart and dosages [186 Kan. 397] administered to the appellant as a result of Darter's calculations. From Dr. Roys' calculations the equilibrium doses administered at several segments of the chest wall were from 5,670 roentgen to 6,260 roentgen at a depth of five millimeters. It was in these...

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135 practice notes
  • Abigail Alliance for Better Access v. Von Eschenbach, No. 04-5350.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Agosto 2007
    ...principle is of early vintage, for "Anglo-American law starts with the premise of thorough-going self determination." Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1104 (1960). Long before regulation of the efficacy of medications was contemplated by the federal government, courts recogni......
  • Sard v. Hardy, No. 11
    • United States
    • Court of Appeals of Maryland
    • 9 Noviembre 1977
    ...the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1106, rehearing denied,187 Kan. 186, 354 P.2d 670 (1960); Scaria v. St. Paul Fire & Marine Ins. Co., 227 N.W.2d at 653; 2 D......
  • Foster v. Klaumann, No. 100,286.
    • United States
    • Court of Appeals of Kansas
    • 11 Septiembre 2009
    ...language incorporated in PIK Civ. 4th 123.11 appears to have its roots in two earlier cases from our Supreme Court. See Natanson v. Kline, 186 Kan. 393, 399, 350 P.2d 1093, clarified and reh. denied 187 Kan. 186, 354 P.2d 670 (1960); Goheen v. Graber, 181 Kan. 107, 112, 309 P.2d 636 (1957).......
  • In re Cincinnati Radiation Litigation, No. C-1-94-126.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 11 Enero 1995
    ...817 is desirable or necessary, but the law does not permit him to substitute his own judgment for that of the patient. Natanson v. Klein, 186 Kan. 393, 350 P.2d 1093, 1104 Tort law has embraced this basic principle of informed consent in order to guard a patient's control over decisions aff......
  • Request a trial to view additional results
135 cases
  • Abigail Alliance for Better Access v. Von Eschenbach, No. 04-5350.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Agosto 2007
    ...principle is of early vintage, for "Anglo-American law starts with the premise of thorough-going self determination." Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1104 (1960). Long before regulation of the efficacy of medications was contemplated by the federal government, courts recogni......
  • Sard v. Hardy, No. 11
    • United States
    • Court of Appeals of Maryland
    • 9 Noviembre 1977
    ...the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1106, rehearing denied,187 Kan. 186, 354 P.2d 670 (1960); Scaria v. St. Paul Fire & Marine Ins. Co., 227 N.W.2d at 653; 2 D......
  • Foster v. Klaumann, No. 100,286.
    • United States
    • Court of Appeals of Kansas
    • 11 Septiembre 2009
    ...language incorporated in PIK Civ. 4th 123.11 appears to have its roots in two earlier cases from our Supreme Court. See Natanson v. Kline, 186 Kan. 393, 399, 350 P.2d 1093, clarified and reh. denied 187 Kan. 186, 354 P.2d 670 (1960); Goheen v. Graber, 181 Kan. 107, 112, 309 P.2d 636 (1957).......
  • In re Cincinnati Radiation Litigation, No. C-1-94-126.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 11 Enero 1995
    ...817 is desirable or necessary, but the law does not permit him to substitute his own judgment for that of the patient. Natanson v. Klein, 186 Kan. 393, 350 P.2d 1093, 1104 Tort law has embraced this basic principle of informed consent in order to guard a patient's control over decisions aff......
  • Request a trial to view additional results

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