Palmer v. Forney, 86-626

• Decision Date: 30 September 1988
• Docket Number: No. 86-626,86-626
• Parties: Charlene PALMER, Individually and as Special Administrator of the Estate of Dennis Gale Palmer, Deceased, Appellant, v. Glen FORNEY, M.D., et al., Appellees.
• Court: Nebraska Supreme Court

Page 712

429 N.W.2d 712

230 Neb. 1

Charlene PALMER, Individually and as Special Administrator of the Estate of Dennis Gale Palmer, Deceased, Appellant, v. Glen FORNEY, M.D., et al., Appellees.

No. 86-626.

Supreme Court of Nebraska.

Sept. 30, 1988.

Syllabus by the Court

1. Expert Witnesses: Appeal and Error. Absent an abuse of discretion, a trial judge's ruling regarding the admissibility of expert testimony will not be reversed.

2. Trial: Expert Witnesses. The determination of the truthfulness or accuracy of an expert's conclusions is for the jury.

3. Trial: Expert Witnesses: Evidence. An allegation that an expert offered false testimony will not be sustained on a mere difference of expert opinion, and where opinion evidence of experts is in conflict, it becomes a question for the jury.

4. Trial: Negligence. Where reasonable minds may draw different conclusions from the evidence, the question of negligence is for determination by the jury.

5. Trial: Evidence: Witnesses: Appeal and Error. All conflicts in the evidence, expert or lay, and the credibility of the witnesses are for the jury and not the Supreme Court on review.

Daniel B. Cullan and Gene M. Cullan, of Cullan, Cullan & Morrison, Omaha, and

Michael J. Javoronok, of Holtorf, Kovarik, Nuttleman, Ellison, Mathis & Javoronok, Gering, for appellant.

J.L. Zimmerman, of Atkins Ferguson Zimmerman Carney, P.C., Scotts Bluff, for appellee West Nebraska General Hosp.

William P. Mueller and Rita C. Grimm, of McGinley, Lane, Mueller, O'Donnell & Williams, P.C., Ogallala, and William M. Lamson, Jr., and Patricia A. Zieg, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellees Forney and Myers.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

This is an appeal from the district court for Scotts Bluff County. Plaintiff-appellant, Charlene Palmer, as surviving spouse of her deceased husband, Dennis Gale Palmer, brought this action against defendants-appellees, Glen Forney, M.D., Kent Myers, M.D., and West Nebraska General Hospital. In her petition, plaintiff alleged that her husband had come under the defendants' care on October 29, 1982, after receiving injuries in a car accident. Plaintiff further alleged that her husband died on November 12, 1982, as a result of the negligent "consultation, care, management, and treatment of plaintiff's decedent" by Drs. Forney and Myers, and by the negligence of defendant hospital in not correcting the negligence of the doctors and in not rendering proper care. Defendants separately answered, denied any negligence, and alleged that the decedent's death was caused by the decedent's own contributory negligence. After a trial to a jury, the jury found for the defendants. After plaintiff's motion for a new trial was denied, plaintiff timely appealed to this court. Plaintiff sets out two assignments of error, alleging that the trial court erred (1) "in not discrediting the false testimony of Todd Sorensen, M.D., as a matter of law"; and (2) "in not finding Defendants negligent as a matter of law for the release of [the decedent] from the hospital despite his deteriorating respiratory condition and moderate respiratory failure." We affirm.

The record shows that on the morning of October 29, 1982, Dennis Palmer sustained severe chest injuries, after the vehicle he was operating at 45 miles per hour struck a parked semitrailer truck. Palmer was taken to the emergency room at defendant West Nebraska General Hospital in Scottsbluff. Defendant Dr. Forney was the physician on call. After reviewing Palmer's medical history, various lab tests, and chest x rays, Dr. Forney testified, he placed Palmer in the intensive care unit of the hospital for close observation and to monitor his cardiac condition. Dr. Forney diagnosed Palmer's condition as follows:

He had an automobile accident with multiple trauma; he had blunt trauma to his chest and abdomen, either probably a pulmonary contusion or bruising of the lung tissue, he had possible intraabdominal hemorrhage, a blunt trauma to his abdomen with unknown internal injuries. He had chronic bronchitis with a history of tobacco abuse.

The x rays showed that Palmer had at least one fractured rib and partial collapse of the lower lungs. Palmer was placed on supplemental oxygen, given pain medication, and encouraged to cough and breathe deeply to help clean up abnormal secretions. On the day of admission, the blood gas value for arterial oxygen (PO sub2 ), or oxygen carrying capacity, of Palmer's blood was 59.9 millimeters of mercury (mm Hg). Testimony established that the normal blood gas measurement is between 70 and 100 mm Hg. After Palmer was placed on supplemental oxygen, his blood gas value improved to 75.2 mm Hg.

After Dr. Forney's initial diagnosis, defendant Dr. Myers joined in the treatment of Palmer. On October 30, Dr. Forney examined Palmer and determined that Palmer was bleeding intra-abdominally and that his ankle was sprained. Palmer's blood gas level on that day was 67.7 mm Hg. The next day Palmer's blood gas level went up to 72.4 mm Hg. Dr. Forney noted that Palmer had possibly contracted pneumonia. On November 1, Dr. Forney noted that Palmer's condition was improving, as Palmer was able to take deep breaths and was able to clear the secretions out of his lungs, and as his abdominal condition had stabilized.

Dr. Myers examined Palmer on November 2 and noted a fever. On November 5, Dr. Forney, after examining Palmer, changed the delivery mode of his respiratory treatment. On November 5, Palmer's blood gas was 53.5 mm Hg while oxygen was being administered. Dr. Forney observed that Palmer's condition was deteriorating, as Palmer was breathing rapidly, was in "lots of pain," and still had a fever. Dr. Forney testified at trial that these symptoms were common complications consistent with his earlier diagnosis. On November 6, Palmer still had a high temperature. On November 7, Dr. Myers noted that Palmer was walking in the hallway without oxygen but still had a temperature. On November 7, Dr. Forney also saw Palmer but had nothing to add to Dr. Myers' observations. On November 8, Dr. Myers noted that Palmer's temperature was coming down and that his chest was clearing. Dr. Myers ordered Palmer's supplementary oxygen discontinued. Palmer's blood gas on room air (i.e., without supplementary oxygen) was 52.4 mm Hg. On that same afternoon, Dr. Forney discharged the patient. Dr. Forney testified that Palmer's condition on discharge was as follows:

Mr. Palmer had shown significant improvement, especially over the last several days and at the time I dismissed him, I felt that he no longer needed the nursing care or nursing observation as long as we were able to provide him with close outpatient follow-up, specifically his exercise tolerance was improved, being that he was able to get up and around with less distress. His pain was diminished somewhat, of course, he still had pain. His temperature, especially compared over the last several days, had improved. His chest x-ray and his lung sounds were improving. I can't remember other specific things, but putting the whole clinical picture together along with his laboratory tests and vital signs and his examination and input that I had from the staff, I felt that he was significantly improved and felt that he could be dismissed safely.

Dr. Forney testified as to his final diagnosis on discharge, as follows:

Final diagnosis was pulmonary contusion syndrome, which refers to the bruised lung and, then, the subsequent pneumonia that had followed, in addition to the chest wall injury, the broken ribs, the bruised chest. The final diagnosis as far as the abdominal injury was the same on admission as dismissal was, blunt trauma to the abdomen with lacerated liver, the diagnosis of sprained ankle was maintained throughout and did not change.

Dr. Forney gave instructions to Palmer on the date of discharge that he was to see Dr. Myers in 2 days, and gave Palmer prescriptions for pain medication and for an antibiotic. Dr. Forney also instructed Palmer to contact him or Dr. Myers immediately should he begin to experience any problems.

On November 10, Palmer went to Dr. Myers' office for a followup examination. Dr. Myers noted that although Palmer was still experiencing chest pain and "some pain in his leg," he was doing "quite well." Dr. Myers examined Palmer's leg and determined that Palmer had a sore calf on his left leg with incipient phlebitis. Dr. Myers instructed Palmer to use moist heat and to elevate his leg, and gave him a prescription for an inflammatory agent.

On November 12, Mrs. Palmer called Dr. Myers' office and left word for him to call her. When Dr. Myers returned her call before 9:30 a.m., she informed him that her husband was "profoundly short of breath" and was having chest pain and that that condition had existed since the evening before. Mrs. Palmer told Dr. Myers that Palmer had not called the night before because he did not want to be told to return to the hospital. Dr. Myers talked to Palmer over the telephone and told him to get back to the hospital immediately, and then again talked to Mrs. Palmer and told her to return Palmer to the hospital immediately. Palmer apparently died while en route to the hospital as the result of a pulmonary embolism. After resuscitative efforts at the hospital failed, Palmer was pronounced dead in the emergency room. An autopsy showed that a clot had formed in one of Palmer's veins. The clot fatally occluded a major portion of the blood flow to Palmer's lungs. Dr. Forney testified that "pulmonary embolism was not strongly suspected in this situation because everything he had was better explained by his known diagnosis of bruised lung, pneumonia, bronchitis, chest wall injury."

In her first assignment of error, plaintiff contends that the trial court erred in not discrediting the testimony of Todd Sorensen, M.D., as a...