Nelson v. Hammon

• Decision Date: 10 December 1990
• Docket Number: No. 89SC171,89SC171
• Citation: 802 P.2d 452
• Parties: Allen G. NELSON, Petitioner, v. Kipp HAMMON, D.D.S., Respondent.
• Court: Colorado Supreme Court

Page 452

802 P.2d 452

Allen G. NELSON, Petitioner, v. Kipp HAMMON, D.D.S., Respondent.

No. 89SC171.

Supreme Court of Colorado En Banc.

Dec. 10, 1990.

McDermott, Hansen, Anderson & Reilly, Daniel M. Reilly, Kirk D. Tresemer, P.C., Kirk Tresemer, Denver, for petitioner.

Stephen H. Kaplan, City Atty., City and County of Denver, Carl R. Mangino, Asst. City Atty., Denver, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

In Nelson v. Hammon, 87CA0818 (Colo.App., Feb. 2, 1989) (not selected for official publication), the Court of Appeals affirmed the trial court's order granting respondent Kipp Hammon's motion for judgment notwithstanding the verdict. Having granted petitioner Allen G. Nelson's petition for certiorari to review the judgment of the Court of Appeals, we reverse and remand with directions.

A

In May 1984, Nelson filed an amended complaint asserting that he had sustained permanent injuries to his heart and kidneys as the result of negligent diagnosis and treatment of his dental condition by Hammon and others. The evidence is undisputed that as a result of tooth extractions performed by Hammon at Denver General Hospital on January 12, 1984, bacteria entered Nelson's bloodstream, causing a condition termed bacteremia. The bacteria lodged on a defective bicuspid heart valve, resulting in the development of endocarditis, an inflammation of the lining of the heart. Nelson's alleged injuries were caused by the endocarditis.

At trial Nelson described one of his claims against Hammon as follows: "[T]hat [Hammon was] ... negligent in [his] diagnosis, care and treatment when [he] failed to diagnose the infectious process in [Nelson's] teeth, gums, and supporting structures, and when [he] failed to prescribe antibiotics to counter-act (sic) this infectious process." The parties also entered into the following two stipulations:

1. The parties stipulate that [Nelson] had a congenital bicuspid valve at the time of the dental extraction which was unknown to the defendants at the time of their treatment;

2. All defendants stipulate that the dental extractions of January 12, 1984, were the cause of the bacteremia which caused the endocarditis and its medical complications. This stipulation notwithstanding, the defendants specifically reserve the right to present evidence for the juries (sic) consideration concerning the efficacy of antibiotics in the treatment of the plaintiff and in the prevention of endocarditis.

The parties relied extensively upon the testimony of several expert witnesses to support their positions. Nelson contended that Hammon had a duty to treat his infection with antibiotics and, had that duty been observed on January 12, 1984, the endocarditis would not have developed. Hammon asserted that he had no duty to administer any antibiotics to Nelson on that date, that any duty to administer antibiotics to Nelson would have been based on an American Heart Association protocol that applies only to patients with known heart ailments, and that neither Hammon nor Nelson was aware of Nelson's defective heart valve on January 12, 1984.

At the conclusion of Nelson's case in chief and again at the close of all the evidence, Hammon moved for the entry of a directed verdict. The trial court denied these motions, and the jury subsequently returned a verdict of $100,000 in favor of Nelson and against Hammon.

Hammon filed a motion for judgment notwithstanding the verdict or, alternatively, for new trial. The trial court granted the motion for judgment notwithstanding the verdict, ¹ stating in pertinent part as follows:

It is undisputed that a [prophylactic] shot of antibiotics shortly before the extraction would have prevented the infection.... The American Heart Association has adopted a protocol [in] which antibiotics will be used prior to dental procedures only where there is a history of heart problems....

In giving his medical history to the defendant, plaintiff denied any history of heart problems....

The situation is this: Defendant did not give and should not have given antibiotics prior to the extractions. The bacterium entered the bloodstream at the time of the extractions. This last fact was stipulated to by the parties. It follows that there was no negligence on the part of the defendant....

... A major factual issue became whether the plaintiff had an infection or had an [inflammation] shortly after the extractions, and should, therefore, defendant have administered antibiotics to combat the alleged infection. As the parties stipulated that the bacterium entered the blood at the time of the extraction, it was immaterial whether plaintiff later developed an infection....

Nelson appealed the trial court's order, and the Court of Appeals affirmed. In so doing, the Court of Appeals made the following statements:

Assuming that defendant was negligent in failing to take x-rays to ascertain the extent of plaintiff's oral infection, the evidence is uncontradicted that the appropriate antibiotic dosage for treatment of the oral infection would have been insufficient to prevent plaintiff's endocarditis. Consequently, plaintiff failed to establish that the [administration] of such a dosage of antibiotics on or before January 12, 1984, would have prevented his endocarditis. Accordingly, since plaintiff's evidence taken in the light most favorable to the verdict failed to establish the requisite negligence element of causation, the trial court's entry of judgment notwithstanding the verdict was proper.

B

Nelson alleges that both the trial court and the Court of Appeals erred in determining that the record does not contain sufficient evidence to permit a jury to conclude that he had established all the elements of his negligence claim against Hammon. We agree with Nelson's argument.

A judgment notwithstanding the verdict may be granted only if the evidence, taken in the light most favorable to the party opposing the motion and drawing every reasonable inference which may legitimately be drawn from the evidence in favor of that party, would not support a verdict by a reasonable jury in favor of the party opposing the motion. C.R.C.P. 59(e) ; ² Durango School Dist. No. 9-R v. Thorpe, 200 Colo. 268, 273, 614 P.2d 880, 884 (1980); see also Alzado v. Blinder, Robinson & Co., 752 P.2d 544 (Colo.1988); Smith v. City and County of Denver, 726 P.2d 1125 (Colo.1986). Conflicts in the testimony of a single witness are for the jury to resolve. Poertner v. Swearingen, 695 F.2d 435, 437 (10th Cir.1982). These principles must infuse the review of the evidence necessary to resolve the issues here presented.

On April 11, 1983, Nelson appeared at the Denver General Hospital Dental Clinic for assistance with respect to a broken tooth. While no treatment was rendered, X-rays revealed the presence of an infection in three of Nelson's teeth. Nelson returned to the clinic on May 5, 1983, and October 3, 1983. The infection persisted, but no treatment was prescribed.

On January 12, 1984, Nelson returned to the clinic in considerable pain. Swelling was observable in the area of the three teeth, and the infection had spread. Nelson stated that he had no history of heart problems, and neither he nor Hammon realized that Nelson had a congenital defective bicuspid heart valve. On that date, Hammon extracted the three teeth and performed incision and drainage procedures to remove the source of the infection. Hammon did not administer antibiotics to Nelson either before or after the extractions.

While much evidence at trial consisted of evaluation of several later visits by Nelson to the clinic, the controversy in this case ultimately focuses on Hammon's conduct on January 12, 1984. Certain medical facts are not disputed. It is not disputed that Nelson contracted endocarditis which was caused by an accumulation of bacteria on his defective heart valve. The parties stipulated that the presence of bacteria in Nelson's bloodstream--a condition defined as bacteremia--resulted from the dental extractions of January 12, 1984. Finally, the parties agree that the American Heart Association has promulgated a protocol recommending prophylactic administration of antibiotics to dental patients prior to any procedure when the treating dentist is aware that the patient might have a heart condition such as Nelson's. The protocol requires the oral or intravenous administration of two grams of penicillin thirty to sixty minutes prior to any surgical procedure and subsequent oral dosages of 500 milligrams of penicillin every six to eight hours for several days thereafter.

Hammon has consistently argued that he had no duty to administer antibiotics prophylactically to Nelson on January 12, 1984, to prevent potential endocarditis in the absence of knowledge that Nelson was susceptible to such disease. Nelson has consistently asserted that even if this argument is valid, Hammon had a duty on January 12, 1984, to administer antibiotics therapeutically to treat the serious infection present in Nelson's mouth on that date. Nelson contends that, had dosages appropriate for such therapeutic treatment been administered at that time, the endocarditis would not have developed. Thus, two critical issues at trial were whether, in view of the observable infection, Hammon had a duty to administer antibiotics and, if so, whether the dosages of antibiotics recommended for treatment of this infection would also have prevented endocarditis.

Dr. Daniel Burkhead, a dentist, testified as an expert witness in Nelson's behalf that in his opinion the infection in Nelson's mouth clearly had spread by January 12, 1984; that therefore antibiotics should have been administered then; and that had antibiotics been administered at that time, the infection would have been controlled. Dr. Burkhead also testified that penicillin should have been administered immediately after the incision and drainage, and that the incision and drainage procedures...