Schiles v. Schaefer
| Decision Date | 18 March 1986 |
| Docket Number | No. 49559,49559 |
| Citation | 710 S.W.2d 254,66 A.L.R.4th 465 |
| Parties | Yvonne SCHILES, Julie Ann Schiles and Vickie Kristine Schiles, by and through their natural parent and next friend Yvonne Schiles and Evelyn Schiles, Plaintiffs-Respondents, v. Glennon SCHAEFER, M.D., Ernst Radiology Clinic, Inc., Richard H. Butsch, M.D. and St. Joseph's Hospital, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Ben Ely, Jr., St. Louis, for Glennon Schaefer, M.D.
Myron S. Zwibelman, St. Louis, for Ernest Radiology Clinic.
Joseph H. Mueller, St. Louis, for Dr. Richard H. Butsch.
James E. Hullverson, Sr., St. Louis, for plaintiffs-respondents.
In this wrongful death action, defendants appeal after a unanimous jury verdict for plaintiffs in the amount of $1,500,000. We affirm as modified. Plaintiffs, the wife, mother and two minor children of James Schiles, alleged in their petition that decedent died as a result of defendants' failure to diagnose and treat decedent's pulmonary embolization. 1 At the time of his death, Mr. Schiles was 37 years old and was employed as personnel manager for Sunmark Manufacturing, with income for the prior year of $35,208. His wife was not employed during the ten years prior to his death.
The series of events which culminated in Mr. Schiles untimely passing began when Dr. Butsch, an internist, referred decedent to Dr. Schaefer, a surgeon, after diagnosing gall bladder disease. Decedent was hospitalized in St. Joseph's Hospital on May 31, 1981, and underwent gall bladder surgery on June 1. The surgery, performed by Dr. Schaefer, was apparently successful and decedent was discharged from the hospital on June 6.
At 5:00 a.m. on June 11, 1981, decedent was readmitted to the hospital after presenting himself to the emergency room with complaints of abdominal and back pain associated with a fever and an elevated white blood cell count. A set of chest x-rays was taken, which showed nothing "remarkable." Dr. Schaefer saw decedent every day during this second hospitalization. The nurses' notes from decedent's second hospitalization indicate that on June 11 and June 14 decedent coughed up some blood. The June 15 entry reports that at noon, decedent was: In addition, decedent had a temperature of 100 degrees, and an elevated lactate dehydrogenase level, indicating tissue damage.
On the morning of June 16, Dr. Schaefer stopped by decedent's hospital room and talked with decedent and his wife. Mrs. Schiles testified that they informed Dr. Schaefer that decedent had coughed up more blood that morning and showed him a kleenex with blood on it. She also testified that they told Dr. Schaefer about the incident on the fifteenth, when decedent had to be assisted back to his bed after experiencing difficulty breathing while being ambulated. Dr. Schaefer informed the Schiles that if decedent began to hyperventilate again, he should breathe into a paper bag. Dr. Schaefer ordered a lung scan, a diagnostic test involving the induction of radioactive isotopes, and told the Schiles that decedent could be discharged if the lung scan results were normal. There is some dispute as to whether Dr. Schaefer ordered the lung scan as a precautionary measure or because he suspected pulmonary embolism.
Because decedent had recently undergone a gallium scan, which also involved radioactive isotopes, the full lung scan could not be performed. However, a recent chest x-ray is part of a lung scan, so chest x-rays were taken that afternoon. Ernst Radiology Clinic, Inc. provides radiological services for St. Joseph's Hospital, and the June 16 x-rays were examined by Dr. Savci of Ernst Radiology, who reported:
a pneumonic process involving the right lower lobe [of the lung] at the posterior segments with minimal pleural reaction. There is slight decrease in the volume of the right lower lobe. The remaining right and left left [sic] lung fields are normal, normal cardiac size.
Dr. Savci testified at trial that he could not remember if he compared the 6/16 x-rays with the 6/11 x-rays, although he recognized that such comparison with prior films was good practice. He also agreed that significant changes were reflected in those sets of x-rays. Dr. Scheer, plaintiffs' radiology expert, characterized the 6/16 x-ray results as follows:
The findings on that x-ray, to my mind, are those of a pulmonary embolus which has occurred and which has also resulted in a partial death of the one segment of the lung. That white patch is called an infarction, which means that that part of the lung is dying or had died because of the lack of blood supply there.
The x-ray report was filed with the hospital records, but Dr. Schaefer was not notified that x-rays had been taken or of the results. Dr. Schaefer testified that had he known what the x-ray findings were, he would have either kept decedent in the hospital or "ordered him back in for more tests." He further testified that he was unaware that a regular chest x-ray was part of a lung scan; however, he did not order a chest x-ray when he learned that the complete lung scan could not be done. Furthermore, Dr. Joseph testified that "every doctor in the world knows that you have to get a chest x-ray first before you get the lung scan." Decedent was subsequently discharged from the hospital at 3:00 p.m. on June 16, without the lung scan.
When decedent returned home he was limping and he started to experience pain in his left calf. The next morning his left leg began to swell. At the suggestion of a neighbor, the Schiles contacted Dr. Butsch about decedent's condition.
Dr. Butsch examined decedent in his office on June 18. Decedent's blood pressure was taken, a blood test was performed, and the swelling in his leg was measured. There is conflicting evidence as to what else transpired. Mrs. Schiles testified that Dr. Butsch told them that decedent probably had a small non-dangerous blood clot in the area of his knee, and that decedent should elevate his leg, wrap it in a warm towel, and "stay off it." She testified further that Dr. Butsch said "he could put [decedent] back in the hospital, but as far as he was concerned every test that he could think of had been run." Dr. Butsch testified that decedent was told he was seriously ill and should be in the hospital, but decedent refused to go, stating that "he had just gotten out of the hospital and they did all those [tests] and they can't find out what's wrong." Dr. Butsch also testified that decedent would not consent to a chest x-ray, which could have been performed at the doctor's office. Dr. Butsch said that he called Dr. Schaefer while the Schiles were in his office, but Dr. Schaefer was performing surgery at that time. Dr. Schaefer returned Dr. Butsch's call between 6:00 and 7:00 that evening. Dr. Schaefer testified that:
I do not remember all of the substance [of the telephone conversation], except that he told me that he had seen Mr. Schiles on that day, and that Mr. Schiles looked terrible and he thought he ought to be hospitalized. He told me that Mr. Schiles refused to go to the hospital and had refused to have an x-ray before two--I think women, I'm not sure, people who worked in his office at that time.
However, he also testified that Dr. Butsch did not indicate that this was a life-threatening situation.
Mrs. Schiles testified that after leaving Dr. Butsch's office she and decedent returned home, and decedent At about 1:00 a.m., decedent awoke screaming and breathless. Mrs. Schiles said that she went to get a paper bag for decedent to breath into, as Dr. Schaefer had recommended for hyperventilation. Decedent went into the bathroom, collapsed, and died from "an acute pulmonary embolus."
Pulmonary embolism is a common post-operative complication. During the immobolization of surgery, blood tends to settle and clot in the pelvic region. Pieces of the major clot, known as emboli, break off and travel through the circulatory system, often becoming lodged in the small blood vessels of the lung. When this occurs the portion of the lung beyond the clot is deprived of oxygen. About 25% of the time pulmonary embolism is fatal. The signs of pulmonary embolization include hemoptysis (coughing up blood), shortness of breath, and chest pain, particularly in post-operative patients; although there was conflicting expert testimony as to how "specific" these symptoms are for pulmonary embolism. Taken individually, each of these symptoms has a number of possible causes. Plaintiffs' theory was that had pulmonary embolism been properly diagnosed, and had heparin, an anticoagulant, been administered to decedent in timely fashion, he would not have died.
On appeal, all three defendants contend that plaintiffs failed to prove causation; and point to testimony elicited from plaintiffs' expert, Dr. O'Brian, on cross-examination to the effect that there will be a 25% incidence of embolization when the patient is given heparin therapy. In a closely related point, defendants contend that Dr. O'Brian's opinion that decedent would not have died if heparin treatment had been instituted was based on speculation and should have been excluded.
On direct examination, Dr. O'Brian testified that it was his opinion that "had Heparin been administered to the patient in a timely fashion, he would not have sustained fatal pulmonary embolization." He further testified that:
Given the fact that institution of Heparin therapy immediately reduces the risk of [embolization] by over 75...
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