Norton v. Argonaut Ins. Co.

• Decision Date: 29 June 1962
• Docket Number: No. 5601,5601
• Citation: 144 So. 2d 249
• Court: Court of Appeal of Louisiana — District of US
• Parties: Glynace H. NORTON et al. v. ARGONAUT INSURANCE COMPANY et al.

Page 249

144 So.2d 249

Glynace H. NORTON et al. v.ARGONAUT INSURANCE COMPANY et al.

No. 5601.

Court of Appeal of Louisiana, First Circuit.

June 29, 1962.

Rehearing Denied Sept. 25, 1962.

Taylor, Porter, Brooks, Fuller & Phillips, by F. W. Middleton, Jr., Kantrow, Spaht & Kleinpeter, by Robert L. Kleinpeter, Baton Rouge, for appellants.

H. Alva Brumfield, Baton Rouge, for appellees.

Before LOTTINGER, LANDRY and REID, JJ.

LANDRY, Judge.

Plaintiffs herein, Glynace H. Norton and his wife, Anne Graves Norton, instituted this wrongful death action to recover damages for the accidental demise of their infant daughter, Robyn Bernice Norton, three months of age, who, on January 2, 1960, died in Baton Rouge General Hospital, of an overdose of the drug digitalis administered by injection.Named defendants herein are Argonaut Insurance Company, liability insurer of the Baton Rouge General Hospital; Mrs. Florence Evans, the Registered Nurse who administered the fatal hypodermic; and Aetna Casualty & Surety Company, liability insurer of Dr. John B. Stotler, the attending physician who issued the order for the medication administered by Mrs. Evans.A lengthy trial by jury in the court below resulted in judgment in solido against all defendants in favor of plaintiff, Glynace H. Norton, in the sum of $10,807.35 (including funeral and burial expenses in the sum of $807.35) and in favor of Anne Graves Norton in the amount of $13,000.00.All defendants have appealed and plaintiffs have answered the appeals praying that the awards be increased.

DefendantsAetna Casualty & Surety Company(sometimes hereinafter referred to simply as 'Aetna') alleges the judgment against it to be erroneous in that its insured was free of negligence and alternatively contends the awards to plaintiffs herein are excessive and should be reduced.Mrs. Evans and Argonaut Insurance Company(liability insurer of Mrs. Evans' employer, Baton Rouge General Hospital), sometimes hereinafter referred to as 'Argonaut') maintain the trial court and jury erred in (1) Finding that Mrs. Evans was guilty of negligence whereas the evidence shows she merely followed the orders of Dr. Stotler and in so doing exercised professional skill and care in keeping with that degree of skill ordinarily employed under similar circumstances by members of the nursing profession in good standing in the same community; (2) concluding that plaintiffs discharged the burden of proving their case by a fair preponderance of the evidence contrary to the law and evidence; and (3) alternatively, that the awards to plaintiff are excessive and should be reduced.

The sequence of events which culminated in the unfortunate and untimely demise of plaintiffs' infant daughter commenced shortly after the child's birth on September 29, 1959.Dr. Charles N. Bombet, the Norton's pediatrician, examined Robyn the day of her birth and attended her subsequently.At birth the child appeared normal but approximately two months thereafter she commenced to exhibit symptoms which prompted the mother to take her to Dr. Bombet for further examination.In early December, 1959, Dr. Bombet detected loud heart murmurs which indicated to him that the child was afflicted with congenital heart disease.At Dr. Bombet's suggestion, Dr. John B. Stotler, Cardiologist, and Dr. Charles Beskin, a specialist in heart surgery, were called in consultation.After examination, Doctors Stotler, Beskin and Bombet, in consultation, agreed that in all probability heart surgery was indicated to correct the congenital deformity noted.It was further agreed that prior to final determination regarding the proposed surgery, additional examination was desirable.With this view in mind, Dr. Stotler admitted the child to Baton Rouge General Hospital December 15, 1959 to conduct further tests and examinations deemed desirable under the circumstances.

On December 15, 1959, Dr. Stotler entered on the physician's order sheet (a hospital form whereon is noted and recorded the doctor's orders and instructions relative to medication and treatment to be given the patient) orders for various drugs including, inter alia, the following:

'Elixir Pediatric Lanoxin 2.5 cc (0.125 mg) q6h 3 then once daily'

It is conceded by all parties that the foregoing order for medication meant that the patient was to be administered 2.5 ccs of the prescribed drug (known by the trade or brand name of 'Lanoxin') every six hours for three doses and once daily thereafter.

There is no dispute that Elixir Pediatrix Lanoxin (hereinafter referred to simply as 'Lanoxin') is in reality a derivate of digitalis and that because of its potency it is poisonous if administered in overdoses, therefore, it is to be used with caution and care.It is prescribed in the treatment of certain types of cardiac or heart patients.Briefly stated, the function of the drug is to increase the efficiency or strength of the pumping action of the heart while at the same time reducing the pulse thereby minimizing strain on that most vital organ.In the instant case, it appears that not only was the child's heart congenitally defective but also that her pulse rate was 140.According to the record the medicine comes in three forms namely (1) elixir or in alcohol solution which is administered orally or by mouth by means of a calibrated medicine dropper which is supplied with each bottle of the elixir; (2) pill or tablet form (somewhat similar to the common aspirin) which is likewise taken orally and (3) injectible liquid form which is contained in sealed ampules containing two cubic centimers each of the solution and which is administered by injection or hypodermic needle.

There is no dispute among the medical experts who testified herein tht a patient who is placed on digitalis must first be 'digitalized' which in lay language means the administration of a series of doses (usually three or four) given at intervals of six hours to accustom the patient to the drug and simultaneously attain a desired reaction.When, in the opinion of the attending physician, the patient has been properly digitalized, the patient is then placed on a single daily dose which is referred to in the medical profession as a 'maintenance dose' and which, in the absence of an emergency, is administered in oral form.

The manufacturer's recommended dosage for children up to 10 years of age is 0.01 milligrams per pound of body weight every six hours during the digitalization process followed by a daily maintenance dose equal to 0.01 milligrams of the drug per pound of body weight once daily or in divided doses.It is conceded that the daily maintenance dose for the Norton infant was approximately 0.11 considering the record shows that she weighed almost 11 pounds.It likewise appears that in the elixir form 1 cubic centimeter of elixir contains 0.05 milligrams of whereas the injectible type contains 0.25 milligrams per cubic centimeter.The term milligram is employed to indicate the amount of digitalis in either preparation whereas the term cubic centimeter or c.c. denotes merely the volume of the solution in which the drug is contained.From the foregoing it is evident that 3 c.cs. of the elixir contain only 0.15 milligrams whereas 3 c.cs. of the injectible solution contain 0.75 milligrams or five times as much drug.It is conceded that some discretion is permitted the prescribing physician in deviating from or exceeding the manufacturer's recommended dosages dependent upon results achieved with a particular patient.While the exact dosage which the child should have received according to the manufacturer's recommendations was slightly less than 2.5 c.cs. of the elixir, since the child's weight was approximately 11 pounds and 2.5 c.cs. of the elixir contains 0.12 1/2 milligrams, it is acknowledged by all the medical experts that neither the 2.5 c.cs. prescribed by Dr. Stotler as the daily maintenance dose nor the 3 c.cs. prescribed January 2, 1960, for one dose only was excessive or would have in any way harmed the child if administered in the elixir form.There is, however, some dispute among the medical experts regarding the effect of a double dose of 3 c.cs. of the elixir administered within a period of approximately one hour.All the experts agree, however, that 3 c.cs. administered intramuscularly is a fatal overdose for a 3 month old infant as was most tragically demonstrated in the case at bar.

The principle difference between the route selected for administration of the drug, that is, whether it be given orally or by injection, appears to be the reaction time or time in which it is absorbed by the system and the patient begins to derive benefit therefrom.Almost immediate results are obtained by intravenous injection (injection directly into the veins) for the reason that the medication is inducted directly into the blood stream.The slowest route is by way of mouth for the medication must first be absorbed or assimilated by the blood stream and then carried through the body.Intramuscular injection (injection into a muscle) though slower than the intravenous route is more rapid than oral administration.It further appears with reasonable certainty that taken orally the drug loses some of its potency in the process of being absorbed into the blood stream and that 0.15 milligrams of the oral form (elixir or tablet) will not produce quite as much net result or effect on the patient as 0.15 given intramuscularly.

The third of the three digitalization doses ordered by Dr. Stotler on December 15, 1959 was not timely administered by the nursing staff whereupon Mrs. Norton who remained with her child while the infant was in the sanitarium, became concerned and requested and was granted permission by Dr. Stotler to thereafter administer the daily maintenance dose of 2.5 c.c. which Dr. Stotler prescribed.Dr. Stotler instructed Mrs. Norton in the use of the calibrated medicine dropper by means of which the...