Speed v. State

• Decision Date: 14 April 1976
• Docket Number: No. 2-57672,2-57672
• Citation: 240 N.W.2d 901
• Parties: James R. SPEED, Appellee, v. STATE of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 901

240 N.W.2d 901

James R. SPEED, Appellee, v. STATE of Iowa, Appellant.

No. 2-57672.

Supreme Court of Iowa.

April 14, 1976.

Richard C. Turner, Atty. Gen., John E. Beamer, Asst. Atty. Gen., and Arthur O. Leff, Iowa City, for appellant.

Meardon, Sueppel, Downer & Hayes, Iowa City, for appellee.

Heard by MOORE, C. J., and UHLENHOPP, REYNOLDSON, HARRIS and McCORMICK, JJ.

UHLENHOPP, Justice.

In this appeal in a medical malpractice case, the State of Iowa challenges the sufficiency of the evidence to generate fact questions on negligence and proximate cause and the propriety of expert testimony.

In the fall of 1970, plaintiff James R. Speed attended The University of Iowa, where he was a member of the University's varsity basketball squad. About November 1 of that year he developed an upper respiratory infection--a cold--which persisted through the month; the basketball trainers gave him cold tablets. On Thanksgiving Day, November 26, he had a toothache and a headache. The next day, Friday, he went to the Oral Surgery Department at University Hospitals, where Edward L. Lorson, an oral surgeon, saw him. Dr. Lorson, finding two of Speed's teeth to be seriously decayed, extracted them. The extractions were uncomplicated. Dr. Lorson prescribed codeine and aspirin for pain.

Plaintiff's headache nevertheless became worse Friday night, accompanied by nausea. On Saturday he returned to Oral Surgery, where Dr. James G. Beurle found the tooth extraction sites to be healing properly. Dr. Beurle intravenously administered the analgesic Demerol for pain, and gave plaintiff Phenergan intravenously for nausea. He prescribed capsules of the analgesic Dilaudid, to be taken by plaintiff when the Demerol began to wear off.

Plaintiff's headache persisted through the weekend. His whole body ached, he could not eat, and he had other symptoms of illness.

On Monday morning, November 30, a friend took plaintiff back to Oral Surgery. Dr. Beurle again examined the extraction sites and found them healing normally. He could not explain plaintiff's pain. He prescribed placebos without, of course, telling plaintiff they were such--he had one of the basketball trainers give plaintiff vitamin pills.

After returning to his apartment, plaintiff went to bed and tried to sleep. In the middle of the afternoon another basketball trainer, apparently at the direction of the basketball coach, came to plaintiff's apartment. He took plaintiff to the University Student Health Infirmary, where the team physician, W. D. Paul, examined plaintiff. While taking the history and examining, Dr. Paul became aware of plaintiff's cold, headache, nausea, loss of appetite, dehydration, dizziness, lethargy, inflamed eyelids, and general malaise. Dr. Paul testified he did not reach a definite diagnosis at that time, but considered the possibilities of infectious mononucleosis, brain abscess, and septicemia (invasion of the bloodstream by virulent microorganisms from a local seat of infection). He had plaintiff put to bed in the Infirmary, leaving instructions that plaintiff be given fluids and Bufferin. He did not order laboratory tests.

Shortly after Dr. Paul examined him, plaintiff experienced expulsive, projectile vomiting. Dr. Paul was not told of this. Dr. Robert G. German, whom Dr. Paul had asked to examine plaintiff, was aware of the vomiting. At about 5:00 p.m. Dr. German examined plaintiff and observed soft palate petechiae (small red spots on the soft palate) and redness of the lids of both eyes. He directed that Phenergan be given for plaintiff's nausea and that a complete blood count, urinalysis, and mononucleosis spot test be done the next morning.

Plaintiff's temperature went up and down Monday night, ranging from 104.4 to 101.8 degrees. By 11:00 p.m. his eyelids had swollen until his eyes were only slits. The nurse on duty at the Infirmary telephoned Eduard Sujansky, the doctor on call that evening. After being told of the situation, Dr. Sujansky prescribed Seconal and referral to Oral Surgery in the morning.

The nurse remained concerned. Throughout the early hours of Tuesday, December 1, she checked plaintiff several times to see whether he could touch his chin to his chest without difficulty. At about 5:30 a.m. Speed could not carry out the chin-to-chest test without experiencing stiffness and pain, which is a recognized symptom of meningitis. The nurse again telephoned Dr. Sujansky, who immediately came to the Infirmary and examined plaintiff. By this time one of plaintiff's eyes was beginning to bulge out of its socket, a condition called proptosis. At Dr. Sujansky's request, a resident from the Neurology Department at University Hospitals examined plaintiff.

Plaintiff was then taken to the Neurology Department, where he was given the anticoagulant Heparin and massive doses of the antibiotic Ampicillin. The proptosis increased, extending to both eyes.

On Tuesday afternoon, surgeons at the Hospital operated on plaintiff and removed his ethmoid sinuses. During the next days plaintiff received intensive medical care. The physicians and surgeons saved his life but not his sight; he emerged permanently blind.

The doctors who treated plaintiff in the Neurology Department ultimately concluded that cavernous sinus thrombosis caused the blindness. An infection, probably originating in the ethmoid sinuses, traveled back into plaintiff's cranium and caused blood clotting--thrombosis--in the veins passing through an area in the center of the head called the cavernous sinus. These veins include those going to the eyes. Blockage of these veins resulted in the stoppage of the arterial flow of blood to the eyes, which in turn caused the retinae in the eyes to die.

Plaintiff sued the State of Iowa under the Tort Claims Act, chapter 25A, Code 1973. He did not complain about the care he received in the Neurology Department after Tuesday morning. He did claim, however, that Drs. Lorson, Beurle, Paul, German, and Sujansky negligently cared for him and that their negligence cost him his sight. The parties tried the action to the trial court by ordinary proceedings. Code 1973, § 25A.4. The court found Dr. Beurle negligent in failing to obtain assistance from doctors in other areas of practice, and that this negligence was a proximate cause of plaintiff's blindness. The court also found that Dr. Paul was negligent in failing to employ appropriate tests and examinations and that this negligence too proximately caused the blindness. The court awarded plaintiff damages, and the State appealed.

The State contends before us that the record contains insufficient evidence to support the trial court's findings of negligence and proximate cause. The State also contends that plaintiff's experts were not competent to render opinions and that one of them based his opinion on facts not disclosed to the trial court. Finally, the State contends that the hypothetical question put by plaintiff to his experts was improper in several respects. The State does not raise issues before us regarding damages or regarding its responsibility under the respondeat superior doctrine for the conduct of the doctors.

I. Sufficiency of Evidence of Negligence and Proximate Cause. A physician is liable for injury to a patient caused by failure of the physician to apply that degree of skill, care, and learning ordinarily possessed and exercised by other physicians in similar circumstances. Perin v. Hayne, 210 N.W.2d 609, 615 (Iowa). Ordinarily, questions of negligence and proximate cause are for the trier of fact, here, the trial court. Rule 344(f)(10), Rules of Civil Procedure. If supported by substantial evidence, the findings of a trier of fact on negligence and proximate cause are binding on us. Rule 344(f)(1). We view the evidence in the light most favorable to the judgment. Rule 344(f)(2).

A. Negligence. We need not go beyond the evidence regarding Dr. Paul's conduct. The trial court found that doctor negligent 'in that he failed to employ recognized and appropriate tests or examinations to gather the information necessary to prescribe a proper course of treatment of Plaintiff's condition . . ..' Our examination of the record discloses that the evidence amply supports this finding.

Plaintiff presented Orion H. Stuteville as a witness, who is a doctor of both dentistry and medicine with impressive credentials. Dr. Stuteville testified that in his opinion Dr. Paul did not use ordinary care and skill in his treatment of plaintiff. Plaintiff's second expert is a medical doctor, Douglass S. Thompson. Dr. Thompson also testified that Dr. Paul did not exercise proper care and skill under the circumstances, saying specifically that on Monday Dr. Paul should have done an immediate spinal tap, a complete blood count, a urinalysis, and a mononucleosis spot test. The third expert plaintiff called, Edward B. Rotheram, a medical doctor testified similarly that in his opinion Dr. Paul and the other doctors involved did not fulfill ordinary medical standards of care with respect to plaintiff and specifically that Dr. Paul should have given plaintiff a more thorough physical examination and a spinal tap.

In addition, several of the witnesses called by the State gave testimony from which the trial court could infer negligence on the part of Dr. Paul in taking no further action after considering brain abscess and septicemia. Dr. Robert Hardin, Vice President for Health Affairs at The University of Iowa, testified that if he had an impression of septicemia, he would do an immediate blood culture and if he had an impression of brain abscess, he would order X-rays and a spinal tap. Dr. Sujansky, one of the doctors who treated plaintiff, testified that if he had an impression of brain abscess, he would arrange for a brain scan. Dr. Adolph Sahs, a witness for the State and head of the Department of Neurology at University Hospitals, testified that if he had an impression of brain abscess, he...