Sweet v. Sisters of Providence in Washington

• Decision Date: 12 May 1995
• Docket Number: No. S-4830,S-4830
• Citation: 895 P.2d 484
• Parties: Gary and Beverly SWEET, Individually and as Parents and Next Friend of their Minor Son, Jacob Sweet, Appellants, v. SISTERS OF PROVIDENCE IN WASHINGTON, a Washington non-profit corporation, d/b/a Providence Hospital; Daniel Tulip, M.D., James Nesbitt, M.D., Gerry J. Schriever, M.D.; the Children's Clinic, Inc., a corporation; the Children's Clinic, a partnership; and Does 1 through 10, partners in the Children's Clinic, Inc., Appellees.
• Court: Alaska Supreme Court

Page 484

895 P.2d 484

Gary and Beverly SWEET, Individually and as Parents and Next Friend of their Minor Son, Jacob Sweet, Appellants, v. SISTERS OF PROVIDENCE IN WASHINGTON, a Washington non-profit corporation, d/b/a Providence Hospital; Daniel Tulip, M.D James Nesbitt, M.D., Gerry J. Schriever, M.D.; the Children's Clinic, Inc., a corporation; the Children's Clinic, a partnership; and Does 1 through 10, partners in the Children's Clinic, Inc., Appellees.

No. S-4830.

Supreme Court of Alaska.

May 12, 1995.

Patricia L. Zobel and John T. Robertson, Staley DeLisio & Cook, Anchorage, for appellants.

James D. Gilmore, Gilmore & Doherty, Anchorage, for appellee Sisters of Providence in Washington.

David F. Leonard and Marcus R. Clapp, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellees Daniel Tulip, M.D., James Nesbitt, M.D., and The Children's Clinic.

Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

OPINION

MOORE, Chief Justice.

Jacob Sweet, an infant, allegedly sustained brain damage while a patient at Providence Hospital in Anchorage. Jacob's parents, Gary and Beverly Sweet (the Sweets), brought this action against Providence Hospital (Providence) and Drs. Daniel Tulip, James Nesbitt, Gerry J. Schriever and the Children's Clinic (collectively referenced as "the doctors"), claiming that the defendants' negligence caused Jacob's severe brain injury. The Sweets also alleged that Providence's inability to locate certain medical records precluded them from proving medical negligence, and that they were entitled to recover based on a claim of intentional or negligent spoliation of evidence.

The jury's verdict was in favor of the defendants on all claims. The Sweets' appeal addresses five main points of error. We hold that the trial court's failure to apply a rebuttable presumption of causation on the Sweets' medical negligence claim against Providence constituted harmless error. We also find no error in the court's handling of issues related to the expert witnesses. However, we remand the case for an evidentiary hearing to determine whether an administrative regulation should set the standard of care on the Sweets' informed consent claim. We also vacate the attorney's fee award.

I.

Jacob Sweet is a young boy with a severe brain injury. He suffers from profound mental retardation as well as cerebral palsy and blindness. Jacob is confined to a wheelchair, and he will almost certainly continue to depend upon around-the-clock care for the rest of his life. The cause of Jacob's disabilities is the subject of this lawsuit.

Jacob was born to Beverly and Gary Sweet on January 16, 1986, at Providence. Upon Jacob's birth, Dr. Tulip, an employee of the Children's Clinic, became his pediatrician. ¹ Dr. Tulip examined Jacob shortly after his birth and found nothing abnormal about the infant's health.

The next day, Dr. Nesbitt, another Children's Clinic physician, circumcised Jacob. ² The parties dispute whether either Dr. Tulip or Dr. Nesbitt advised Beverly Sweet of the risks and benefits of circumcising Jacob. The Sweets contend that they were never advised they had any choice in deciding whether Jacob should be circumcised. They state that, after Dr. Tulip's examination of Jacob on the 16th, Nurse Marianne Rexford presented Beverly with an index-size permit card to authorize circumcision. Beverly stated that she had not discussed circumcision with her husband or any physicians, but she signed the authorization because she believed that all baby boys were circumcised, and she was not aware she had a choice in the matter.

Neither Nurse Rexford nor the doctors have any independent recollection of talking with Beverly about Jacob's circumcision. However, both Dr. Tulip and Dr. Nesbitt contend that, prior to circumcising Jacob, they certainly would have separately discussed the risks of circumcision with Beverly as part of their usual practice in caring for newborn boys. They also state that, as part of the usual practice of Providence's nursery staff, Nurse Rexford or another nurse would have provided Beverly with a document called the "Compton Sheet," which describes in detail the risks and benefits of, and alternatives to, circumcision.

Jacob and Beverly were discharged from the hospital on January 18, 1986. Over the next week, Gary and Beverly followed the instructions they were given on how to care for the circumcision site. On Saturday, January 25, one week after Jacob's discharge, the Sweets called Dr. Tulip because Jacob had become fussy and was vomiting. Beverly had also noticed that Jacob's circumcision site appeared red and swollen and looked different from the picture on the brochure outlining the proper care of the site.

Dr. Tulip advised the Sweets to bring Jacob to Providence, where he would meet them. Dr. Tulip met the Sweets in the Emergency Room at approximately 11:00 p.m. Dr. Tulip examined Jacob and determined that he had a localized infection in his penis. Recognizing that infants are at higher risk of developing potentially life-threatening systemic, or generalized, bacterial infections of the entire body, Dr. Tulip decided the most prudent approach was to admit the infant overnight to the pediatrics ward so that he could receive IV antibiotic therapy.

There are numerous critical facts at issue regarding Jacob's condition and treatment between the time he was admitted to the pediatrics ward and the time he was transferred to the neonatal intensive care unit (NICU) approximately 26 hours later, at 2:15 a.m. on Monday, January 27. In addition to the recollections of the parties, a number of different medical records exist which set forth some specifics regarding Jacob's care during this 26 hour period. These records include Dr. Tulip's notes regarding Jacob's care, Dr. Roy Davis' notes following Jacob's prolonged seizure, or "crash," late in the evening of January 26, all laboratory test results over the course of Jacob's stay at Providence, his NICU records, physician's orders, discharge summary and radiology and EEG reports.

Other medical records are missing and could not be located after an exhaustive search by the parties. The missing records include Jacob's narrative nursing notes, a medication sheet, a graphic record, and a nursing care flow sheet for Sunday, January 26 (collectively referenced as "the nursing records"). The narrative nursing notes typically would reflect the nurses' assessments of the patient, detailed observations which are updated every four hours, any communications with the patient's parents or doctors, and the records of treatment and doctor visits. These notes have been called the "eyes and ears of the doctor." The medication sheet would indicate all medication given to the patient, including the dose, sequence and time given. The sheet would provide evidence as to whether and when a doctor's orders were actually carried out. The graphic record contains information regarding body temperature, pulse, respiration, blood pressure, body weight and all bodily inputs and outputs. The nursing care flow sheet records matters such as the patient's appetite and the amount of formula consumed.

The missing nursing records are the subject of the Sweets' cause of action against Providence for spoliation of evidence. It is undisputed that the records were available at the time Jacob was transferred to NICU. There is no contention that the records were missing during any critical moments of Jacob's stay, or that his care was adversely affected as a result of absent records. The Sweets claim that the missing records precluded them from succeeding on their medical negligence claims, and that as a result they were entitled to a conclusive presumption of negligence.

Events over the course of Sunday, January 26

Given the lack of nursing records setting forth the precise nature and timing of events during the day of January 26, the parties dispute a number of facts. The Sweets contend that Beverly returned to Providence the morning of Sunday, January 26 at approximately 8:00 or 8:30 a.m. While holding Jacob, Beverly noticed what she called a "stiffening spell" in which Jacob forcefully arched his back, rolled his eyes and turned red in the face. The spell lasted a few seconds. Beverly stated that she suspected the spell was caused by Jacob's pain in urinating, and that she reported it to the nurse. She also reported it to Dr. Tulip when he came in at approximately 10:00 a.m.

According to the Sweets, after Dr. Tulip left the room, Beverly observed two more stiffening spells and noticed that Jacob appeared to be shivering. She reported this to the nurse on duty, and again to Dr. Tulip when he returned at noon. As the afternoon progressed, Beverly stated the stiffening spells became more frequent, occurring approximately every 45 minutes to an hour between the hours of 2:00 p.m. and 9:00 p.m. She remembers describing these episodes to the nurse on duty at around 3:00 p.m.

The Sweets contend that, at around 7:00 p.m., Gary called for the nurse when Jacob had a stiffening spell while being held by Gary. According to the Sweets, the nurse asked if Jacob had been fluttering his eyes during the spell. When Gary responded that he had, the nurse said she would call the doctor immediately.

Dr. Tulip testified that he felt Jacob's condition on Sunday morning was improved from that of the night before. He recalled that Beverly informed him of a movement that troubled her when he visited Jacob around noon. He otherwise did not recall that anyone informed him of Jacob's "stiffening spells" between Sunday morning and Sunday evening. ³ However, Dr. Tulip stated that he became aware during his noon visit that Jacob had lost interest in feeding and that his temperature had dropped. As a result of this information, Dr. Tulip stated that he ordered lab tests to investigate the possibility that Jacob had a systemic infection.

Dr. Tulip denied receiving a call...