Thompson v. Presbyterian Hosp., Inc.

Decision Date20 July 1982
Docket NumberNo. 49608,49608
Citation1982 OK 87,652 P.2d 260
PartiesDorothy THOMPSON and Robert G. Thompson, Appellants, v. PRESBYTERIAN HOSPITAL, INC., a domestic corporation; Oklahoma City Anesthesia Associates, Inc.; Billy R. Goetzinger; and James C. Beavers, Appellees.
CourtOklahoma Supreme Court

Appeal from District Court, Oklahoma County; Joe Cannon, Judge.

In a medical malpractice action brought against four defendants, the trial court sustained demurrers to the plaintiff's evidence interposed by two defendants. A jury verdict was returned for the other two defendants. The trial court thwarted the plaintiff's post-verdict discovery efforts and denied the motion for new trial.


Howard K. Berry, Jr., Berry & Berry, Oklahoma City, for appellants.

George F. Short, Robert C. Margo, Short, Barnes, Wiggins & Margo, Oklahoma City, for appellees.

OPALA, Justice:

This appeal in a medical malpractice case presents two questions: Was the plaintiff's evidence sufficient to withstand the surgeon's demurrer? and Was there prejudicial error in allowing an additional set of three peremptory jury challenges to multiple defendants whose respective posture, vis-a-vis each other, was not shown to be in a state of "serious" conflict? We hold that (a) the surgeon's demurrer was properly sustained, and (b) prejudice to the plaintiff is to be presumed from allowance of additional peremptory challenges when none of the multiple defendants has met the burden of affirmatively showing the presence of a serious dispute among the co-defendants in the case.


While in the latter stages of labor, Dorothy Thompson [patient] was admitted to Presbyterian Hospital early one morning. She delivered spontaneously and was examined shortly thereafter by her doctor [surgeon]. The patient sustained certain injuries while undergoing tubal ligation the following day. 1 She had been a patient of the surgeon during the period of prenatal care and for some two years before. Aware of her desire to have tubal ligation, the surgeon discussed with her the procedure some five hours after delivery. On receiving her consent, he enlisted the aid of an anesthesiologist. The surgeon informed the latter of his patient's general state of good health despite her obesity and her spontaneous delivery that morning. Because the anesthesiologist was then unable to discuss with the patient her choice of anesthesia, the surgeon acted as a go-between. Later in the day, the surgeon reported (a) that his patient agreed to a spinal anesthesia and (b) that he (the surgeon) would write the pre-operative orders. 2 These included a pre-medication prescription of 100 milligrams of Demerol. 3

The surgeon next saw the patient just before surgery the following morning. Once the anesthesiologist administered the anesthetic, the surgeon proceeded with the operation. During the tubal ligation procedure the patient suffered an episode of cardiac arrest with resulting massive brain damage, seizures and convulsions. 4 She has died since this appeal was brought. Her administrator has been substituted as a party-litigant.

The patient and her husband [plaintiff] brought a medical malpractice suit against the surgeon, the anesthesiologist, the Oklahoma City Anesthesia Associates, Inc. (a professional corporation) and the hospital. At trial these four defendants were allowed to exercise a total of six peremptory challenges. 5 On demurrers interposed by the surgeon and the hospital to plaintiff's evidence, both of these defendants were let out of the lawsuit. A jury returned a verdict for the remaining two defendants. The plaintiff then unsuccessfully sought leave of court to take depositions in aid of his motion for new trial. This appeal is prosecuted from an adverse ruling on motion for new trial. The hospital stands dismissed, on the plaintiff's own motion, as a party-appellee herein. Judgment in its favor has thus become final.


The plaintiff asserts reversible error in the trial court's ruling that sustained the surgeon's demurrer to the evidence.

Every fact favorable to the party against whom the demurrer is directed, together with all reasonable inferences which may be drawn from them is admitted as true by the demurrer to the evidence. 6 A demurrer may not be sustained unless there is an entire absence of proof to show any right of recovery. 7 Measuring the proof by the applicable standard, we conclude that the judgment of the trial court must be sustained.

Three elements essential to a prima facie case of negligence are: (a) a duty owed by the defendant to protect the plaintiff from injury, (b) a failure to properly exercise or perform that duty and (c) plaintiff's injuries proximately caused by the defendant's failure to exercise his duty of care. 8

In support of his contention that the surgeon's demurrer to the evidence was improperly sustained, the plaintiff urges a threefold analysis of proof--via direct evidence of negligence, circumstantial evidence and res ipsa loquitur.

Our outline of the record is not intended here as an ascription or attribution of weight or value to any part of the evidence that tends to indicate negligence on the part of the anesthesiologist. Its purpose is merely to demonstrate the presence of proof warranting submission of issues to the jury.

1. Direct Evidence of Negligence

The negligent act for which liability was sought to be imposed is the surgeon's deviation from acceptable medical practice by his invasion of the anesthesiologist's province in prescribing pre-medication (Demerol) for the spinal block.

There was testimony by the plaintiff's medical expert, Dr. G, that the surgeon's very act of prescribing Demerol was a deviation which, when combined with the later actions of the anesthesiologist, started a chain of events that led to the patient's hypoxic brain damage. The record is devoid of any proof that the pre-surgery use of Demerol as pre-medication antecedent to spinal anesthesia, for a person in a condition like that of the patient, was in fact below standard medical practice. Dr. M, another of the plaintiff's medical experts, testified that it would not be. Dr. G did no more than state that he would not have selected Demerol as the pre-operative medication in this case. No expert testified that Demerol itself was the cause of the patient's injuries.

Negligence is not actionable unless it proximately causes the harm for which liability is sought to be imposed. Failure to establish that defendant's negligence was the proximate cause of the harmful event is fatal to the plaintiff's claim. 9 Proximate cause is a juridical question, not one of expert medical knowledge. 10 It involves many factors not within the expertise of a physician. Some of these are legal and some factual. As a general rule, the question of proximate cause in a negligent tort case is one of fact for the jury. 11 It becomes one of law when there is no evidence from which the jury could reasonably find a causal nexus between the negligent act and the resulting injuries. The sufficiency of the evidence to show causal connection between the acts of the defendant and the injury complained of presents a question of law for the court. 12 The general rule is that the causal connection between an act of negligence and an injury is broken by the intervention of a new, independent and efficient cause which was neither anticipated nor reasonably foreseeable. 13

It would be indeed an invasion of the province of the court to allow Dr. G's opinion to pre-empt the proximate cause question simply because he believed there was a causal link between the surgeon's act of prescribing Demerol and the injury sustained. It is the court's duty to determine as a matter of law whether the evidence is sufficient to show a causal connection or whether the intervening factors adduced by the proof did break the causal nexus between the surgeon's actions and the resulting injury. Dr. G's opinion cannot dispense with the plaintiff's legal duty to establish not only that the Demerol prescription was, under the circumstances, a breach of accepted medical standards, but also that the patient's injurious episode of hypoxia encephalopathy was reasonably foreseeable from the surgeon's act of prescribing the Demerol.

The record is barren of proof to the effect that the surgeon could reasonably anticipate the synergistic effect of Demerol in combination with the saddle block would repress the patient's breathing. All expert medical testimony indicated that, under the circumstances adduced, the use of Demerol in connection with a saddle block was not below acceptable medical standards. Reasonable minds cannot differ as to the tenor of the expert evidence. The surgeon simply could foresee neither that the anesthesiologist would give an improper saddle block nor that he would then fail properly to monitor the patient during surgery. Foreseeability is ordinarily a question of fact. It becomes a question of law when, as here, proof to the contrary is absent and but one reasonable inference may be drawn from the adduced facts. 14 The undisputed facts leave no room for a reasonable difference of opinion and we hold, as a matter of law, that the surgeon could not have reasonably anticipated either the occurrence of the anesthesiologist's breach of duty nor the ultimate harm to the patient.

The intervening factor which will break the causal nexus between the defendant's negligence and the resulting injury is called in law the "supervening" cause. A true supervening cause that will operate effectively to insulate the original actor from liability must meet a three-prong test. It must be (1) independent of the original act, (2) adequate of itself to bring about the result and (3) one whose occurrence was not reasonably...

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