VanVleet v. Pfeifle

• Decision Date: 28 February 1980
• Docket Number: No. 9667,9667
• Parties: Theressa S. VanVLEET, Plaintiff and Appellant, v. Delano M. PFEIFLE, M.D., Helmut Arnold, M.D., and Ronald R. Henrickson, M.D., Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 781

289 N.W.2d 781

Theressa S. VanVLEET, Plaintiff and Appellant, v. Delano M. PFEIFLE, M.D., Helmut Arnold, M.D., and Ronald R Henrickson, M.D., Defendants and Appellees.

Civ. No. 9667.

Supreme Court of North Dakota.

Feb. 28, 1980.

Rehearing Denied March 21, 1980.

Frederick E. Saefke, Jr., Bismarck, for plaintiff and appellant.

Zuger & Bucklin, Bismarck, and Fleck, Mather, Strutz & Mayer, Bismarck, for defendants and appellees; argued by William P. Zuger and William A. Strutz, Bismarck.

SAND, Acting Chief Justice.

Theressa VanVleet appealed from a summary judgment of the Burleigh County district court granted in favor of the medical doctors Delano Pfeifle, Helmut Arnold, and Ronald Henrickson in a malpractice action for the wrongful death of her husband, Donald VanVleet. We reverse the order granting summary judgment and remand the matter for trial.

On 22 Apr 1976 Donald VanVleet entered the Quain & Ramstad Clinic in Bismarck, North Dakota, for a physical examination by Dr. Delano Pfeifle after complaining of coughing up blood and frequent headaches. Pfeifle referred VanVleet to Dr. Helmut Arnold, an ear, nose, and throat specialist, to check for the source of the upper respiratory bleeding. Arnold's examination proved negative, and a chest x-ray taken at that time also revealed no active pathology in VanVleet.

VanVleet returned to Arnold on 24 June 1976, and again complained of spitting up blood. Arnold's examination did not disclose the source of bleeding, and he (Arnold) entered a notation on VanVleet's chart that a bronchoscopy ¹ should be performed on VanVleet to rule out any serious pathology. The record did not state whether or not his thought on having a bronchoscopy performed was communicated to VanVleet or to Pfeifle, or any other physician. In any event, there was no bronchoscopy performed on VanVleet at that time.

The next day, 25 June 1976, VanVleet went to the office of Dr. Ronald Henrickson to obtain a second medical opinion on his physical condition. VanVleet related to Henrickson a history of recurrent bleeding from the right side of his nose, but, upon examination, Henrickson found an active bleeding site on the left side of the nose. Henrickson determined that the bleeding was the result of a nasal septal deformity caused by an automobile accident injury which occurred approximately 13 years previous. Nevertheless, Henrickson ordered a chest x-ray of VanVleet as a guard against some alternative cause. The x-ray showed no active disease.

VanVleet was admitted to St. Alexius Hospital in Bismarck, North Dakota, on 20 July 1976 for reconstructive nasal surgery to correct the bleeding. Immediately following the surgery, Henrickson observed no further coughing or spitting of blood. Postoperatively, VanVleet was examined by Henrickson on 27 July 1976, and 9 September 1976. No evidence of coughing or spitting of blood was found by Henrickson on either of those occasions.

On 8 Apr 1977, VanVleet reported to Henrickson that he had been coughing up blood for three or four days. Henrickson examined VanVleet and was convinced that the bleeding had no causal relationship to that which had been surgically corrected the previous July. Henrickson contacted Pfeifle and the two physicians discussed the possible causes of VanVleet's bleeding. Pfeifle then arranged to examine VanVleet again.

At Pfeifle's direction, another x-ray was taken of VanVleet's chest on 13 Apr 1977. The results of this x-ray were abnormal and raised the possibility of a pulmonary malignancy (lung cancer). A bronchoscopy was then ordered by Pfeifle and subsequently performed by Dr. Grandon Tolstedt on 19 Apr 1977. The bronchoscopy revealed a tumor in VanVleet's lung which was biopsied at that time by Tolstedt. The tumor was positively diagnosed as cancerous by Tolstedt following an analysis of lung tissue cells which were washed out and aspirated during the bronchoscopy procedure. Although surgery was performed soon after the bronchoscopy, VanVleet died of lung cancer on 28 May 1977.

Following VanVleet's death, his widow, Theressa VanVleet, commenced this action against Drs. Pfeifle, Arnold, and Henrickson for the wrongful death of her husband. The complaints alleged that Drs. Pfeifle, Arnold, and Henrickson negligently failed to have a timely bronchoscopy performed on Donald VanVleet and negligently failed to advise him to have one performed, thereby resulting in his death earlier than it otherwise would have occurred.

The defendants moved the district court for summary judgment on the grounds that Theressa VanVleet failed to produce competent expert medical evidence to support her claims. The district court granted the summary judgment motion and stated as follows:

"When the decedent sought medical assistance, he was afflicted with a condition. The doctors are not responsible for that condition. There was, at that time, a chance that he might have survived had the condition been diagnosed. The conduct of the doctors (assuming it to be as claimed by the plaintiff) wrongfully deprived him of that chance of survival. That is the wrong for which they should be held accountable. That opportunity for life, remote though it may have been, was something of value to the decedent for which he, or, in this instance, his estate, by virtue of our survival statute, is entitled to seek compensation. That the opportunity for life existed is a provable fact, whereas the plaintiff's claim that the defendants wrongfully caused her husband's death is not.

"Since the plaintiff did not establish that the claimed negligence of the defendants either caused or hastened the death of the decedent, the motion for summary judgment is granted."

Theressa VanVleet appealed the summary judgment order of the district court.

The district court made a critical distinction in this case between an action by the estate of Donald VanVleet for the deprival of "an opportunity for life" and an action by Theressa VanVleet for the wrongful death of her husband. The district court concluded that the VanVleet estate could possibly prove the existence of an "opportunity for life" and be compensated for its deprival, but that Theressa VanVleet's claim that the doctors wrongfully caused her husband's death could not be proved. We disagree with the district court and believe that proof of a severed opportunity for Donald VanVleet's life could also form the foundation of an action for wrongful death.

If the theory of the defendants were extended, an action for wrongful death could never be successfully maintained because every person is destined to die, and therefore a negligent act or omission would have merely accelerated the natural death.

The North Dakota wrongful death act, Ch. 32-21, NDCC, entitles the surviving spouse of a person whose death was wrongfully caused by the negligent actions of another to maintain an action and recover damages in the same manner as the decedent was entitled if death had not ensued. Section 32-21-01, NDCC.

The common law practice of strict pleading is not followed in North Dakota. This is evidenced by the North Dakota Rules of Civil Procedure, Rules 1, 2, 8, etc.

The district court acknowledged that the estate of Donald VanVleet was entitled to recover damages if it was shown that VanVleet's chances for survival, or at least living longer, were lessened by the doctors' negligence in diagnosis. We think it follows, under the wrongful death act, that if the doctors in this case were negligent in failing to discover Donald VanVleet's cancerous condition and thereby hastened and prematurely caused his death, the doctors should not be able to escape liability simply because the cancer would eventually have resulted in VanVleet's death even if it were discovered sooner.

We now...