Rochester v. Katalan

• Decision Date: 26 April 1974
• Citation: 320 A.2d 704
• Parties: Aldine F. ROCHESTER, Administratrix of the Estate of Spencer L. Rochester, Deceased, Plaintiff Below, Appellant, v. Maurice M. KATALAN, M.D., et al., Defendants Below, Appellees.
• Court: Supreme Court of Delaware

Page 704

320 A.2d 704

Aldine F. ROCHESTER, Administratrix of the Estate of Spencer L. Rochester, Deceased, Plaintiff Below, Appellant, v. Maurice M. KATALAN, M.D., et al., Defendants Below, Appellees.

Supreme Court of Delaware.

April 26, 1974.

Upon appeal from Superior Court. Affirmed.

Leonard L. Williams, Wilmington, for appellant.

F. Alton Tybout, of Tybout, Redfearn & Schnee, Wilmington, for appellee Maurice M. Katalan, M.D.

Rodney M. Layton and Wendell Fenton, of Richards, Layton & Finger, Wilmington, for appellee Doctors for Emergency Service, Ronald C. Corbalis, M.D.

William J. Alsentzer, Jr., of Bayard, Brill & Handelman, Wilmington, for appellee Wilmington Medical Center, Inc.

Before CAREY and DUFFY, JJ., and BROWN, Vice Chancellor.

DUFFY, Justice.

In this medical malpractice action for wrongful death the Superior Court granted summary judgment for defendants and plaintiff appeals.

I

First, plaintiff contends that the Court below erred in considering a report, submitted by a defendant, of an investigation into decedent's death prepared by the Attorney General's Office and addressed to 'Members of the New Castle County Grand Jury', because it was hearsay.

Assuming Arguendo that consideration of the document was legally impermissible in light of Superior Court Civil Rule 56, Del.C.Ann., plaintiff has failed to establish prejudice therefrom. ¹ Indeed, many of the facts in the report were developed independently for the record by deposition, compare Barks v. Herzberg, Del.Supr., 206 A.2d 507 (1965), and it does not appear to us that the Trial Court relied on the report in any significant way. ²

In any event, objection here comes too late. The general rule is that evidentiary questions may not be raised for the first time on appeal. Cf. Stevenson v. Henning, Del.Supr., 268 A.2d 872 (1970); Kent v. Parker, Del.Supr., 8 Terry 151, 89 A.2d 133 (1952). Specifically, in the absence of a motion to strike or other objection, it is not improper for a trial court to consider a document, although technically it fails to conform to the requirements of Rule 56. United States v. Western Electric Co., 9 Cir., 337 F.2d 568 (1964); 6 Moore, Federal Practice, 56.22(1). And the comments in Colish v. Brandywine Raceway Association, Del.Super., 10 Terry 493, 119 A.2d 887 (1955), and Woodcock v. Udell, Del.Super., 9 Terry 69, 97 A.2d 878 (1953), do not lead to a different conclusion; each is a trial court opinion so it is manifest that Rule 56 defects in the documents submitted were brought to that Court's attention. That was not done here and, therefore, we will not disturb the judgment in an appellate review where plain error is not involved. ³

II

Second, plaintiff asserts that the Superior or Court erred in ruling as a matter of law that the action was barred by decedent's negligence.

A.

The material facts are not disputed. At approximately 6:30 P.M. on March 12, 1971 decedent, Spencer L. Rochester, and a companion were taken for treatment to the emergency room, Delaware Division of the Wilmington Medical Center, by two police officers who had them in custody. Rochester had a nose injury. More significantly, he and his friend claimed to be heroin addicts suffering withdrawal symptoms. Rochester stated to hospital authorities that he was a 'junkie' and had a habit requiring four or five bags of heroin daily. Both men requested some form of medication for their discomfort. ⁴ The physician on duty in the emergency room, Dr. Maurice M. Katalan, asked decedent whether he had attended the methadone clinic. Rochester responded that he had participated in the program for four months but had dropped out because he had found a new supply source for his heroin.

The active solicitation by both men for medication was supplemented by manifestation of physical symptoms consistent with their claimed withdrawal. They were loud, abusive and uncooperative. Rolling his head and clutching his stomach, Rochester complained of abdominal pains; his eyes appeared glassy; he moaned; his body was shaking; he seemed agitated. After hearing their stories and noting their actions, Dr. Katalan ordered a 40 mg. dosage of methadone for each man. Although his companion calmed down thereafter, Rochester persisted in his behavior. He became violent and beat his head against a wall, and he told Dr. Katalan that he was still sick and needed more methadone. Consequently, approximately thirty to forty-five minutes after the initial dose, Dr. Katalan instructed a nurse that a second 40 mg. of methadone be given decedent and that he be observed for thirty minutes thereafter. ⁵ Shortly after receiving the second dosage decedent quieted down and was taken to a cell by the police officers. The following morning the turnkey was unable to awaken him. An ambulance was summoned and decedent was pronounced dead on arrival at the Delaware Division.

This tragedy took on a most unusual posture when it was later determined that Rochester had never been an addict nor had he participated in a methadone program. His companion was, in fact, a heroin addict. The record also indicates that late in the afternoon of March 12, shortly before being taken into custody by police, Rochester had consumed a quantity of beer or malt liquor and a number of librium pills. He did not give any such information to hospital authorities. These facts are significant because the autopsy showed that Rochester died from multiple drug intoxication.

B.

We emphasize that the case, in its present posture, calls for the Court to begin with the premise that all defendants were negligent in a way that proximately caused Rochester's death. The critical issue before us now is not defendant's conduct; it is whether Rochester contributed to his own death because, if he did, there can be no recovery even if defendants were negligent as we have assumed. ⁶

Plaintiff principally relies upon two cases to support her argument that the claim is not barred by decedent's conduct. We have considered both of those cases in reviewing the judgment below and in studying plaintiff's right to a reversal. But we conclude that neither case is persuasive, both are distinguishable.

The first case, Los Alamos Medical Center v. Coe, 58 N.M. 686, 275 P.2d 175 (1954), involved a claim against a physician for permitting a patient to become addicted to morphine, which was freely administered pursuant to the doctor's orders. In ruling on the physician's assertion that the patient was contributorily negligent and had assumed the risk, the Court approved the following statement of law from 41 Am.Jur., Physicians and Surgeons, § 80:

'Negligence of the patient, to constitute a bar to the suit, must have been an active and efficient contributing cause of the injury; it must have been simultaneous and co-operating with the fault of the defendant, must have entered into the creation of the cause of action, and have been an element in the transaction which constituted it. Where the fault of the patient was subsequent to the fault of the physician and merely aggravated the injury inflicted by the physician, it only affects the amount of the damages recoverable by the patient. Since the patient may rely on the directions of his physician, it follows that he incurs no liability by doing so. . . .'

(See 61 Am.Jur.2d, § 108.)

Although there was evidence that the patient falsely complained of pain in order to get a prescription, there was also evidence that the plaintiffs (patient and her husband) had expressed concern over possible harmful effects of the drug. The doctor advised them not to worry and that the patient could have morphine whenever she felt a need. From this the Court reasoned that the doctor was aware of possible consequences of continued administration of morphine and yet continued to assure plaintiff that harm would not follow from use. It is obvious from the Court's reliance on these facts that it applied the test relating to fault of a patient Subsequent to that of the physician; that is, the Court applied the latter portion of the above rule and held that the patient's actions did not bar recovery. Any fault by the patient occurred after a long period of treatment by the doctor in which morphine had been freely given. The case is not comparable in its critical facts.

A like result was reached on similar facts in King v. Soloman, 323 Mass. 326, 81 N.E.2d 838 (1948). There, the patient did not actively seek morphine injections until after treatment had been ongoing for some time. Again, as in Los Alamos, the patient's conduct occurred subsequent to initiation of morphine treatments by the physician.

In this case the Superior Court found decedent's behavior an 'efficient, active, contributing (and . . . proximate) cause of his death', thus utilizing the first part of the rule outlined in Am.Jur. and quoted with approval in Los Alamos. We agree.

The undisputed facts show that Rochester put on an act, tragic in its consequences but effective in the emergency room under the circumstances in which it was performed. For reasons of his own, he demonstrated the clinical symptoms associated with heroin withdrawal and confirmed them by insisting that he was an addict. It is no answer to this to say, as plaintiff argues, that the doctor and staff could have done more to determine the truth of Rochester's assertions. We have already assumed negligence in that respect. The critical issue involves Rochester's conduct, not that of defendants. Whatever Rochester's purpose, his conduct was a true tragedy for all who were involved. And he continued...