Prabhu v. Levine

• Decision Date: 31 December 1996
• Docket Number: No. 21270,21270
• Citation: 112 Nev. 1538,930 P.2d 103
• Parties: R.D. PRABHU, M.D., Appellant, v. Linda Randolph LEVINE, now Linda Weber aka Linda Franco, Respondent.
• Court: Nevada Supreme Court

Page 103

930 P.2d 103

112 Nev. 1538

R.D. PRABHU, M.D., Appellant, v. Linda Randolph LEVINE, now Linda Weber aka Linda Franco, Respondent.

No. 21270.

Supreme Court of Nevada.

Dec. 31, 1996.

Miles, Pico & Mitchell and James R. Rosenberger, Las Vegas, for Appellant.

Daniel Marks, Las Vegas, for Respondent.

Hamilton & Lynch, Reno, for NTLA amicus curiae.

OPINION ON REHEARING

PER CURIAM:

On June 24, 1993, this court issued an opinion in the above-captioned matter and reversed the judgment of the district court. Prabhu v. Levine, 109 Nev. 607, 855 P.2d 543 (1993). Respondent subsequently petitioned this court for rehearing, and, on September 20, 1995, rehearing was granted. We have carefully reviewed the record on appeal, the briefs, and the oral argument recording and have determined that our previous opinion must be withdrawn because it overlooked material matters in the record. See NRAP 40(c)(2). We now issue this opinion in the place of our prior opinion. As we conclude that the district court did not err below, the judgment is affirmed.

FACTS

Respondent, Linda Levine Weber Franco, was a registered nurse at Valley Hospital in Las Vegas, where appellant, Dr. R.D. Prabhu, also worked. On February 19, 1982, Ms. Franco went to see Dr. Prabhu and complained of weakness, fatigue, dizziness, lightheadedness, palpitations, headaches, and episodes where she lost or almost lost consciousness. She denied having any problems with her vision or hearing. Dr. Prabhu initially believed that Ms. Franco could be suffering from mitral valve prolapse, cardiac arrhythmia, hypoglycemia, or hyperthyroidism.

From February 23 through February 25, 1982, Ms. Franco underwent testing at Valley Hospital at Dr. Prabhu's direction. Dr. Prabhu characterized this testing as a complete workup; according to Ms. Franco, however, Dr. Prabhu negligently failed to order any type of neurological tests. At trial, Dr. Prabhu testified that he did conduct neurologic tests by examining Ms. Franco's eyes, glands and membranes. According to Dr. Prabhu, he found no signs of a neurological disorder that would warrant further testing. Dr. Prabhu also testified that Ms. Franco did not report any symptoms of neurological dysfunction.

Ultimately, Dr. Prabhu found no source for Ms. Franco's symptoms and diagnosed the problem as vasovagal attacks from low blood pressure. According to Ms. Franco, Dr. Prabhu informed her that all of her tests were normal and that she should reduce her caffeine intake. Dr. Prabhu testified that he instructed Ms. Franco to return if her symptoms worsened and suggested that she see an ear, nose and throat specialist because she had a sinus problem. Ms. Franco testified that Dr. Prabhu never suggested that she see another physician and never followed up on her condition after his initial diagnosis. Ms. Franco did see an ear, nose and throat specialist, who recommended that she have an X-ray study of her inner ear, but the X-ray was never performed.

Prior to February 1982, Ms. Franco suffered "sick headaches" once every one or two weeks. Over the next seventeen months, the frequency of these headaches increased to two or three per week. In addition, during this time period, Ms. Franco suffered some hearing loss, more frequent dizzy spells, a loss of coordination and a deterioration in her handwriting. Her speech became so slurred that she was subjected to ridicule. In December 1982 or January 1983, Ms. Franco began developing severe vision problems at close distances.

In July 1983, Ms. Franco saw a neurologist, Dr. Gerald Dunn, who performed a CAT scan and diagnosed the problem as an acoustic neuroma, a benign brain tumor. Ms. Franco then underwent four surgeries in July and August 1983, during which the tumor was removed. A neurosurgeon, Dr. Franco Erculei, performed the surgeries. After the surgeries, Ms. Franco could not walk, sit up, feed or bathe herself for three months. In addition, the surgeries left her with hearing loss and facial palsy, including the inability to close her left eyelid. From October 1984 to May 1986, Ms. Franco saw Dr. Robert Levine, an ophthalmologist, who performed five additional surgeries so that Ms. Franco's eye could function. These surgeries included installing a spring to open and close the eyelid, a cornea transplant, and two laser surgeries.

Ms. Franco subsequently filed an action against Dr. Prabhu. At trial, Dr. Levine, the ophthalmologist, testified that, based upon his review of Dr. Prabhu's records, Dr. Prabhu breached the standard of care because he should have found the tumor. In particular, Dr. Levine opined that Dr. Prabhu's list of possible causes was not sufficient and that, based on Ms. Franco's symptoms, Dr. Prabhu should have performed a general neurologic examination and should have ordered a neurologic consultation while Ms. Franco was undergoing her battery of tests. Additionally, another physician, Dr. Scott Deppe, testified that Dr. Prabhu breached the standard of care because he failed to perform a neurologic exam and did not consider any further neurologic workup.

Dr. Dunn, who found the tumor, and Dr. David Freeman, a neurosurgeon retained as an expert by Dr. Prabhu, opined that Dr. Prabhu did not breach the standard of care. Both Dr. Levine and Dr. Freeman testified that if Dr. Prabhu had ordered a CAT scan, he would have found the tumor.

Dr. Erculei testified that the tumor he removed from Ms. Franco's brain was about 3.5 centimeters in diameter. The experts agreed that this was a medium-sized tumor, since a tumor less than 2.0 centimeters in diameter is considered small, and a tumor greater than 4.0 centimeters in diameter is considered large. Dr. Levine testified that in general, the larger the tumor, the greater the resulting damage will be upon the tumor's removal. He opined that if the tumor had been small, Ms. Franco probably would have had less facial paralysis and would not have needed the additional eye surgeries. According to Dr. Levine, acoustic neuroma patients with tumors of approximately two centimeters or less rarely require additional surgery after removal, and the vast majority of those patients suffer no post-operative facial paralysis. In addition, Dr. Levine testified that those patients who suffer post-operative facial paralysis from small tumors have a better chance for recovery than patients with medium or large tumors. Dr. Freeman testified that if a tumor is caught very early, facial nerve paralysis might be avoided. Dr. Erculei, however, testified that Ms. Franco probably would have sustained the same nerve damage even if the surgery had been performed in February 1982.

No doctor could give an opinion as to the probable size of the tumor when Ms. Franco went to Dr. Prabhu in February 1982. Drs. Prabhu, Levine, Erculei and Freeman did testify that tumors grow over time and produce increasing pressure on adjacent brain structures. Additionally, Dr. Levine opined that the growth of acoustic neuroma tumors over time results in blurred vision but that this blurred vision does not occur until tumors reach the medium size range--two centimeters in diameter--or larger. In a study performed by Dr. Levine, 34% of tumor patients suffering from vision problems had medium sized tumors, and 64.5% had large tumors. No patient with a small tumor suffered any vision problems.

At the conclusion of trial, the jury returned a verdict in Ms. Franco's favor and awarded her $14,500 in medical expenses, $17,400 in loss of earnings, $400,000 in past pain and suffering, and $900,000 in future pain and suffering. The jury also found that Ms. Franco's contributory negligence was forty percent, and the final judgment was reduced by this amount. Ms. Franco's final award was $798,600, plus interest, for a total judgment of $950,000.

On appeal, Dr. Prabhu contends that (1) Ms. Franco did not present adequate evidence of causation; (2) two of the jury instructions were contradictory and therefore confused the jury; (3) Dr. Levine's testimony regarding matters other than his treatment of Ms. Franco should have been excluded because he was not designated as an expert witness; (4) the court erred in admitting a pamphlet and textbook chapter written by Dr. Levine because they were inflammatory and prejudicial; and (5) the amount of the jury's award shocks the conscience. We conclude that none of Dr. Prabhu's assignments of error has merit and accordingly affirm the judgment.

DISCUSSION

The causation evidence

To prevail in a medical malpractice action, the plaintiff must establish the following: (1) that the doctor's conduct departed from the accepted standard of medical care or practice; (2) that the doctor's conduct was both the actual and proximate cause of the plaintiff's injury; and (3) that the plaintiff suffered damages. Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590-91 (1991); Orcutt v. Miller, 95 Nev. 408, 411, 595 P.2d 1191, 1193 (1979). In general, the jury's findings will be affirmed on appeal if they are based upon substantial evidence in the record. Keystone Realty v. Osterhus, 107 Nev. 173, 807 P.2d 1385 (1991); see NRCP 52(a). "Substantial evidence has been defined as that which 'a reasonable mind might accept as adequate to support a conclusion.' " State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).

On appeal, Dr. Prabhu maintains that Ms. Franco failed to establish that he proximately caused her damages. According to him, the expert medical testimony introduced in support of Ms. Franco's claim was insufficient to prove a causal connection between his allegedly negligent failure to diagnose the tumor and Ms. Franco's injuries.

The relevant inquiry on appeal is whether Ms. Franco presented competent expert testimony that tended to show, to a reasonable medical probability, that Dr. Prabhu's negligent act...