Reiser v. Lohner
| Decision Date | 04 January 1982 |
| Docket Number | No. 16444,16444 |
| Citation | 641 P.2d 93 |
| Parties | Elizabeth Irene REISER, By and Through her guardian, Richard E. Reiser, Richard E. Reiser, and Eleanor Reiser, Plaintiffs and Appellants, v. Richard LOHNER and Howard Francis, Medical Doctors, and Provo Obstetrical andGynecology Clinic, Inc., a Professional corporation, Defendants andRespondents. |
| Court | Utah Supreme Court |
Jackson Howard, Provo, for plaintiffs and appellants.
Glenn C. Hanni, R. Scott Williams, Rex J. Hanson, Salt Lake City, for defendants and respondents.
Plaintiffs appeal the judgment of the district court, based on a jury verdict, which denied them recovery for alleged medical malpractice.
Defendants Richard Lohner and Howard Francis are medical doctors and the principal officers and directors of defendant Provo Obstetrical and Gynecology Clinic, Inc. (hereafter "clinic"). Plaintiff Eleanor Reiser was treated at the clinic in 1964 and 1969 by Dr. Francis while pregnant with her fourth and fifth children. Inasmuch as Mrs. Reiser was Rh sensitized, 1 Dr. Francis determined to induce labor to deliver her fifth child at 38 weeks of pregnancy so as to minimize the possible adverse effects thereof. That procedure was also indicated since Mrs. Reiser was emotionally and physically upset, and the cervix was soft and effaced, which made conditions favorable for induction.
Mrs. Reiser became pregnant again in late 1970. As this sixth pregnancy progressed, Dr. Francis saw Mrs. Reiser on several occasions. By this time, defendants had developed a rotation system for seeing patients. On June 24, 1971 (at the 38th week of pregnancy), Dr. Lohner saw Mrs. Reiser for the first time and learned that she was Rh sensitive. During the course of that examination, a titer test was performed. 2 The test results were received on June 26, 1971, and revealed a significant titer.
Dr. Lohner called Mrs. Reiser and asked her to come to the clinic to discuss the options available. On her arrival, he explained that the fetus may be severely involved with the Rh problem and that induction would be the safest solution. A vaginal examination revealed that conditions for induction were not favorable inasmuch as the cervix was thick and firm. Also, Mrs. Reiser was reluctant to have labor induced if there were another alternative. Dr. Lohner then explained that an amniocentesis 3 could be performed to more accurately determine the status of the fetus. He also explained that the usual risks involved in such a procedure included sticking the fetus with the needle and inducing infection within the uterus. Mrs. Reiser agreed that an amniocentesis was a suitable alternative to induced labor.
Mrs. Reiser was prepared for the procedure by a nurse who asked the patient to lie on a table in the examination room. After a few minutes, Dr. Lohner came in, took the patient's blood pressure 4 and performed the amniocentesis. Dr. Lohner thereupon left Mrs. Reiser in the care of the nurse. Mrs. Reiser was asked how she felt and she responded by saying, "I feel fine." The nurse then obtained for Mrs. Reiser a glass of water from the lab. As Mrs. Reiser was raising up to drink the water, she became quite pale and exclaimed, "Don't let me fall." The nurse reassured Mrs. Reiser and called for another nurse to assist. One of the nurses then went to get smelling salts while the other stayed with Mrs. Reiser. Immediately thereafter, at approximately 11:30 a. m., Dr. Lohner came in and examined Mrs. Reiser. Finding no pulse, the doctor made the diagnosis of cardiac arrest and started his resuscitative efforts. He gave Mrs. Reiser a "big thump" on the chest, established an airway, and began mouth-to-mouth resuscitation 5 and closed-chest cardiac massage. An ambulance was called, and Dr. Lohner accompanied Mrs. Reiser to the hospital, where they arrived at 11:40 a. m.
Mrs. Reiser was diagnosed as suffering from ventricular fibrillation. 6 After the heartbeat was stabilized by electric shock treatment, adrenalin was shot directly into Mrs. Reiser's heart so as to strengthen the heartbeat.
Late that evening, Mrs. Reiser commenced labor. Plaintiff Elizabeth Reiser was born the next morning at 4:27 a. m. The baby was born with severe brain damage and was later diagnosed as suffering from cerebral palsy and spastic quadriplegia, all of which was indisputably caused by anoxia. 7
The complaint was filed on May 1, 1974. The first cause of action sought damages for personal injuries suffered by Mrs. Reiser; the second cause of action sought damages for personal injuries suffered by Elizabeth; and the third cause of action sought damages for emotional distress of the parents. On January 16, 1976, Judge Allen Sorensen granted defendants' motion for summary judgment as to plaintiffs' first and third causes of action. The court ruled that the applicable statute of limitations had run against any claims by Mrs. Reiser, and that Utah does not recognize a negligence claim solely for emotional distress. The court preserved the questions of liability and damage to Elizabeth on the basis that the statute of limitations did not run during the child's minority.
Prior to trial, in November, 1977, defendants made a motion in limine to exclude evidence that a titer test was not taken until June 24, 1971, nor was an amniocentesis given to Mrs. Reiser prior to June 26, 1971. The trial court granted the motion.
The issues of liability and damage to Elizabeth were tried to a jury on November 14 through 21, 1977, with Judge Sorensen presiding. When the jury was unable to reach a verdict, the Judge declared a mistrial. Judge Sorensen thereafter disqualified himself and the case was assigned to Judge James Sawaya. Thereafter, Judge Sawaya also granted defendants' motion in limine. The second trial commenced on January 29, 1979. A focal concern at trial was what caused the cardiac arrest. Various experts testified at trial that the cardiac arrest could have been the result of one or more of the following: supine hypotension syndrome; 8 vasovagal depression syndrome; 9 amniotic embolism; 10 allergic reaction to xylocaine, the local anesthetic; 11 and spontaneous stoppage of the heart. After six days of trial, the jury returned a verdict of no cause of action against plaintiffs. This appeal followed.
On appeal, plaintiffs first contend that the trial court erred in granting defendants' motion in limine. In granting the motion, the trial court directed plaintiffs "not to present ... or seek to have admitted ... any evidence relating to the fact that an antibody titer reading was not taken by the defendants on the plaintiff's mother prior to June 24, 1971, and that an amniocentesis procedure was not performed by the defendants on the plaintiff's mother prior to June 26, 1971." The theory of such a ruling is that Rh sensitivity did not cause the injury and that the doctors' negligence in diagnosing and treating the sensitivity, if any, is irrelevant and potentially prejudicial to the determination of negligence in relation to the harm suffered.
Plaintiffs claim that this alleged negligence with respect to the titer test and amniocentesis is crucial to their cause of action. They assert that the cardiac arrest was caused by supine hypotension syndrome and that to have Mrs. Reiser on her back for any procedure when she was 38 weeks pregnant was negligence. But for defendants' failure to properly diagnose the Rh sensitivity (so goes the argument), plaintiff never would have had to lie on her back for the belatedly conducted amniocentesis.
At trial, defendants answered such contentions in several ways. Their evidence was to the effect that the cardiac arrest was not caused by supine hypotension syndrome. They pointed to the fact that there is no known case of the syndrome leading to heart attack; indeed the very nature of the syndrome is such that when the vena cava is sufficiently depressed by the uterus, a body reflex causes the mother to move so as to relieve the depression. Furthermore, they pointed out that Mrs. Reiser had previously given birth to five other children, and that as a woman bears children her body develops collateral circulation to carry the blood back to the heart when the vena cava is depressed. Finally (and most importantly), they offered evidence that, on the facts presented, it was not negligence to allow Mrs. Reiser to be on her back for a period of time less than ten minutes. 12 There was evidence that, in all likelihood, Mrs. Reiser reasonably could have been on her back while sleeping, during a vaginal or pre-natal examination or for many other reasons.
The trial judge was within the bounds of his authority when he excluded the tests (or lack thereof) pertaining to Rh sensitivity. It is undisputed that Rh sensitivity was not the cause of the child's injury, and any evidence as to the diagnosis of such sensitivity therefore appears to be without relevance. 13 When this is coupled with the potential prejudicial effect such evidence might have had upon the jury, the trial judge was well within his discretion to exclude it. 14
Plaintiffs' second contention on appeal is that the court erred in submitting a special verdict to the jury. The special verdict form asked the following five questions: (1) Was defendant, Richard Lohner, negligent in allowing Mrs. Reiser to lie on her back for an excessive period of time? (2) If your answer to no. 1 is yes, was such negligence a proximate cause of the injury or damage to the plaintiff? (3) Was the defendant Richard Lohner negligent in the acts and efforts utilized or not utilized to resuscitate Mrs. Reiser during the time she was unconscious? (4) If your answer to no. 3 is yes, was such negligence a proximate cause of the injury or damage to the plaintiff? (5) If your answers to questions 1 and 2 are yes, or to questions 3 and 4 are yes, or the answer to all of the above questions are yes, then you are to answer the following question: What...
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Case Summaries
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