Van Zee v. Sioux Valley Hospital

• Decision Date: 03 February 1982
• Docket Number: Nos. 13270,13279,s. 13270
• Parties: Steve VAN ZEE and Judy Van Zee, Plaintiffs and Appellants, v. SIOUX VALLEY HOSPITAL, a South Dakota corporation, Defendant and Appellee, and Orthopedic and Fracture Center, P. A., a South Dakota professional association; and John Billion, Defendants.
• Court: South Dakota Supreme Court

Page 489

315 N.W.2d 489

Steve VAN ZEE and Judy Van Zee, Plaintiffs and Appellants, v. SIOUX VALLEY HOSPITAL, a South Dakota corporation, Defendant and Appellee and Orthopedic and Fracture Center, P. A., a South Dakota professional association; and John Billion, Defendants.

Nos. 13270, 13279.

Supreme Court of South Dakota.

Argued Nov. 18, 1981.

Decided Feb. 3, 1982.

Sidney B. Strange of Strange & Strange, Sioux Falls, for plaintiffs and appellants.

Sarah L. Richardson of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee; Carleton R. Hoy of Davenport, Evans, Hurwitz & Smith, Sioux Falls, on brief.

HENDERSON, Justice.

ACTION

Appellants Steve and Judy Van Zee appeal from a judgment based on a jury verdict which found that appellee Sioux Valley Hospital was not negligent in its care of Steve Van Zee. ¹ This appeal is predicated on appellants' contention that the jury

should have been instructed on the doctrine of res ipsa loquitur. We agree, reverse and remand.

FACTS

While attempting to perform some farm maintenance on a blender box of a feeder wagon, Steve Van Zee injured his left hand and forearm when he became caught in the spokes of the blender. This accident occurred on March 13, 1976. Van Zee was immediately taken to a hospital in Miller, South Dakota, where his injury was x-rayed, cleaned and sutured. Three injections were administered to Van Zee at this time: a combination painkiller and muscle relaxant, a tetanus booster and a general anesthetic. The latter injection was given intravenously at the inner side of the elbow joint of the right arm while the other two injections were given in the hip muscle. To allow for treatment at the Miller hospital, Van Zee had to be forcibly restrained because of the extreme pain involved.

Due to the severity of the injury, Dr. James E. Monfore arranged to have Van Zee taken to the Sioux Valley Hospital in Sioux Falls, South Dakota, where orthopedic surgeon Dr. John Billion became Van Zee's attending physician. Dr. Billion examined Van Zee on March 13, 1976, and admitted him into the Sioux Valley Hospital. At this time, and up to the time of the operation at Sioux Falls, there was no apparent pain or dysfunction of the right arm and shoulder of Van Zee. For all purposes, it was a normal arm.

On March 18, 1976, surgery was performed on Van Zee's left hand and forearm, during which time Van Zee was unconscious. Van Zee did not recall any injections being given to him in his right arm or shoulder prior to surgery. Upon regaining consciousness that same day, Van Zee immediately noticed a deep pain in his right arm. At this time, a pinprick was observed by both Steve and Judy Van Zee on Steve's right shoulder. The hospital personnel, including Dr. Billion, were notified of the pain in Van Zee's right shoulder; consequently, x-rays were taken and physical therapy administered to the right arm. Van Zee was discharged from the hospital on March 23, 1976.

The pain in Van Zee's right arm persisted and became more severe after he left the hospital in Sioux Falls. Due to this increased pain, Van Zee was examined in Miller by Dr. Monfore on March 27, 1976. By this time, Van Zee's right arm had become nearly immobile. Dr. Monfore noted that a puncture mark and small bruise were visible on the right shoulder of Van Zee. Van Zee was admitted into the Miller hospital. The admitting diagnosis of Dr. Monfore read in part: "acute right shoulder pain, possibly secondary to injection site of hypo." During his stay in the hospital, Van Zee received pain control drugs and cold packs. Van Zee was discharged from the hospital on April 1, 1976, at which time Dr. Monfore diagnosed that his patient's right arm "was practically useless to him." Dr. Monfore also arranged for Van Zee to have his right arm examined by Dr. Billion.

Van Zee was examined by Dr. Billion on April 2, 1976, and again on April 21, 1976. Dr. Billion observed that Van Zee was experiencing much pain in his right shoulder and recommended physical therapy. Van Zee was referred by Dr. Billion to Dr. Kenneth G. Koob, a neurologist in Sioux Falls. On May 3, 1976, Dr. Koob examined Van Zee and determined that Van Zee was experiencing pain and immobilization to his right arm. Dr. Koob could not, however, establish the cause for the dysfunction of the limb.

On December 5, 1977, Van Zee was examined by Dr. Shelly Chou, a neurosurgeon in Minneapolis, Minnesota. Dr. Chou found that Van Zee had suffered a loss of sensation in his right shoulder, which showed marked atrophy. At this time, Dr. Chou diagnosed Van Zee's injury as a nerve injury in the right shoulder area. Van Zee was admitted to the University of Minnesota hospital on January 8, 1978, to allow Dr. Chou to conduct further testing. On January 11, 1978, exploratory surgery was conducted on Van Zee's right shoulder so as to expose the damaged nerves and better diagnose This action was commenced in March of 1978. Trial was held in August of 1980 during which time Van Zee testified that he still experienced pain in the right shoulder area.

the injury. This operation indicated that the circumflex nerve in Van Zee's right shoulder had deteriorated to the point of nonfunction. Van Zee was discharged from the University hospital on January 13, 1978.

ISSUE

Did the trial court err in refusing to instruct the jury on the doctrine of res ipsa loquitur? We hold that it did.

DECISION

A trial court is to present only those issues to the jury by way of instruction which find support by competent evidence in the record. Wolf v. Graber, 303 N.W.2d 364 (S.D.1981); Olesen v. Snyder, 277 N.W.2d 729 (S.D.1979). A failure to give a requested instruction setting forth the applicable law constitutes prejudicial error. Wolf v. Graber, supra; Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605 (1970), mod. 85 S.D. 133, 178 N.W.2d 560 (1970).

The three essential elements which must be present to warrant application of the doctrine of res ipsa loquitur are: (1) the instrumentality which caused the injury must have been under the full management and control of the defendant or his servants; (2) the accident was such that, according to knowledge and experience, does not happen if those having management or control had not been negligent; and (3) the plaintiff's injury must have resulted from the accident. Fleege v. Cimpl, 305 N.W.2d 409 (S.D.1981); Kramer v. Sioux Transit, Inc., 85 S.D. 232, 180 N.W.2d 468 (1970). Also, the doctrine of res ipsa loquitur is to be utilized sparingly and only when the facts and demands of justice make its application essential. Shipley v. City of Spearfish, 89 S.D. 559, 235 N.W.2d 911 (1975); Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97 (1932).

In cases involving medical negligence, which is the cause of action pleaded here, an additional element is required for the doctrine of res ipsa loquitur to be applied: namely, negligence must be established by the testimony of medical experts, unless the kind of negligence involved is within the realm of laymanistic comprehension. Block v. McVay, 80 S.D. 469, 126 N.W.2d 808 (1964); Lundgren v. Minty, 64 S.D. 217, 266 N.W. 145 (1936); Bennett v. Murdy, 61 S.D. 471, 249 N.W. 805 (1933); Myrlie v. Hill, 58 S.D. 330, 236 N.W. 287 (1931). This requirement is expounded upon in Prosser, Law of Torts, pp. 226-228 (4th ed. 1971) (footnotes omitted):

This question of duty arises frequently in cases of medical malpractice. Since a physician or surgeon normally undertakes only to exercise the skill and care common to the profession, there usually is not enough in a mistaken diagnosis alone, or the unfortunate choice of the wrong method of treatment, or the kind of accident or undesirable result which happens in spite of all reasonable precautions, to show the necessary lack of skill or care. What this means is that ordinarily laymen are not qualified to say that a good doctor would not go wrong, and that expert testimony is indispensable before any negligence can be found. Such decisions, together with the notorious unwillingness of members of the medical profession to testify against one another, may impose an insuperable handicap upon a plaintiff who cannot obtain the proof.

There are, however, some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a sponge in the patient's interior, or removes or injures an inappropriate part of his anatomy, or when a tooth is dropped down his windpipe, or he suffers a serious burn from a hot water bottle, or when instruments are not sterilized, the thing speaks for itself without the aid of any expert's advice.

Appellants factually contended at trial that Steve Van Zee, while unconscious during surgery at the Sioux Valley Hospital, had received an injection in his upper right arm which caused the pain and nerve damage to his right arm. As indicated by the following quote from 45 A.L.R.3d 731, 739-740 (1972) (emphasis added), for the doctrine of res ipsa loquitur to be applied, it was incumbent on appellants to establish by expert testimony that the Sioux Valley Hospital was negligent in its treatment of Steve Van Zee:

(I)n situations where a patient sustained an injury after an injection the courts have usually refused to apply the doctrine of res ipsa loquitur since the full spectrum of possible consequences from the giving of a shot were not within the layman's common knowledge and since many unforeseen and undesirable reactions from an injection could result from many causes other than negligence, such as the emotions, allergies, and internal condition of the patient before and after an operation, and developments occuring after the injection, the courts thus holding that at least a minimum showing by expert testimony was generally required that there had been some variance from recognized standards...