Pillsbury-Flood v. Portsmouth Hospital

• Decision Date: 17 July 1986
• Docket Number: PILLSBURY-FLOO,No. 85-099,A,85-099
• Citation: 512 A.2d 1126,128 N.H. 299
• Parties: Susan C.dministratrix of the Estate of Daniel G. Pillsbury-Flood, v. PORTSMOUTH HOSPITAL et al.
• Court: New Hampshire Supreme Court

Page 1126

512 A.2d 1126

128 N.H. 299

Susan C. PILLSBURY-FLOOD, Administratrix of the Estate of Daniel G. Pillsbury-Flood, v. PORTSMOUTH HOSPITAL et al.

No. 85-099.

Supreme Court of New Hampshire.

July 17, 1986.

Gerald F. Giles, Portsmouth, on brief and orally, for plaintiff.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Theodore Wadleigh on brief and orally), for Portsmouth Hospital.

Sulloway Hollis & Soden, Concord (Martin L. Gross on brief and orally), for Eugene B. Andes, M.D.

Ransmeier & Spellman, Concord (Timothy E. Britain on brief and orally, and E. Tupper Kinder on brief), for Frank A. Graf, M.D.

BATCHELDER, Justice.

In this medical malpractice case the plaintiff sued Portsmouth Hospital and Doctors Eugene B. Andes and Frank A. Graf for negligence in connection with their medical treatment of her husband following an automobile accident. A jury trial resulted in verdicts for all three defendants. On appeal, the plaintiff contends that the Trial Court (Gray, J.) should have shifted the burden of proof to the defendants on the issue of causation because the nature of the defendants' negligence made proof of causation by the plaintiff difficult or impossible. We disagree, and therefore affirm.

At 9:20 p.m. on Friday, November 16, 1979, Daniel G. Pillsbury-Flood (the patient or deceased) was in a motor vehicle accident in which his head struck the windshield of the car he was driving. He did not receive medical attention that night, but the next day he went to the Portsmouth Hospital emergency department at 4:15 p.m., complaining of head and neck pain. Dr. Andes, the emergency department physician, performed a neurological examination to determine whether the patient suffered a head injury; the result was negative. The doctor ordered a series of X-rays of the patient's neck and skull. Because of an abnormality in the neck X-ray, Dr. Andes consulted Dr. Graf, an orthopedist, to evaluate the patient's neck. Dr. Graf viewed the X-rays, examined the patient and concluded that no fracture or other acute head or neck injury had occurred.

Neither doctor found signs or symptoms of a head injury. The patient left the hospital at 7:00 p.m. with written instructions to contact Dr. Graf and two therapists the following Monday morning. The instructions also stated: "Relaxing movement. No stress for your body, long trips." The patient was not given a copy of the hospital's head trauma sheet, which lists six signs of possible head injury: (1) excessive or persistent headache, (2) excessive or persistent dizziness or drowsiness, (3) excessive or persistent nausea or vomiting, (4) lack of coordination, (5) obvious difference in pupil size, and (6) unusual behavior. The sheet states that the patient should be awakened every two hours for the following twelve to twenty-four hours, and that if any of the above symptoms occur, a physician should be contacted or the patient should be brought to the emergency room.

That Sunday morning, the patient complained of head and neck pain. The plaintiff reminded her husband "that the doctor had told him that he would feel worse before he felt better." The plaintiff left the house around 11:30 a.m., and a friend visited her husband for a short time after noon. When the plaintiff returned at 4:00 p.m., she found her husband dead.

According to the doctor who performed the autopsy, death was caused by an acute subdural hematoma, which "results from the tearing of small veins between the venous sinuses of the skull and brain, resulting in an [sic] very gradual collection of blood between the skull and the brain." The autopsy report also stated that a generalized seizure caused the death, and that the symptoms of a subdural hematoma are characteristically slow in onset and may not occur for days or weeks.

The plaintiff, as administratrix of the deceased's estate, sued the defendants, alleging that their medical negligence caused her husband's death. At trial, the plaintiff's expert witness testified that the medical care and follow-up instructions the patient received were totally inadequate. The expert also testified that a CAT scan would have disclosed the accumulation of blood in the patient's subdural area, and enabled him to receive the medical care he needed within a few hours. The defendants' expert testified that the doctors acted competently. He also indicated that he could not say as a matter of probability that the patient would not have died had he been given a head trauma sheet, and that death caused by a subdural hematoma can occur rapidly once the blood pressure reaches a high level. Finally, the doctor testified that the defendants' care did not cause the patient's death.

During trial, the plaintiff moved for partial directed verdicts, asserting that the burden of proof of causation had shifted to the defendants and that the defendants had failed to prove that their conduct did not cause the patient's death. This motion was denied. The plaintiff again raised the burden of proof issue by requesting jury instructions consistent with her theory. The court refused to shift the burden of proof and instructed the jury that the plaintiff had to prove that the defendants' negligence was a "substantial factor in causing the injury complained of." After the jury rendered general verdicts for the defendants, the plaintiff moved to set aside the verdicts and requested a new trial, alleging error in the court's failure to shift the burden of proof and to instruct the jury accordingly. These motions were denied, and the plaintiff appealed.

The plaintiff argues that the defendants' failure to properly diagnose the head injury, as well as their failure to instruct the patient and give the head trauma sheet prescriptions, constituted negligence; and she therefore argues that the trial court should have shifted the burden of proof on the issue of causation to the defendants. In particular, the plaintiff asserts that the defendants should have had to demonstrate that it was more probable than not that (1) such negligence did not result in the patient's failure to seek further treatment; (2) the subdural hematoma could not have been diagnosed even if further treatment had been sought; and (3) diagnosis of the subdural hematoma would not have minimized or eliminated the risk of death. The defendants argue that (1) the jury made no finding of negligence; (2) the trial court's refusal to shift the burden of persuasion was correct; and (3) the cases relied upon by the plaintiff indicate only that when the plaintiff offers evidence of negligence, and a risk of injury follows from that breach of duty, the jury should be allowed to consider the negligence and causation issues, and not that the burden of proof shifts to the defendants.

In this appeal, the plaintiff relies on the "loss of a chance" doctrine as expressed in Hicks v. United States, 368 F.2d 626 (4th Cir.1966). In Hicks, the plaintiff, who was the administrator of a deceased woman's estate, alleged that the woman's death was caused by the negligence of a doctor who failed to properly diagnose and treat the woman. The government contended that there was no breach of the medical standard of care owed to the deceased, and that even if there was negligence, there was no proof that the misdiagnosis and improper treatment were the proximate cause of the patient's death. The government asserted that "it is mere speculation to say that [an alternative diagnosis and treatment] would have been successful." Id. at 632.

The Hicks court disagreed, citing testimony indicating that the woman would have survived if she had been operated on. The court stated:

"When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put...