Wagner v. Kaiser Foundation Hospitals

• Decision Date: 30 January 1979
• Citation: 285 Or. 81,589 P.2d 1106
• Parties: Thomas H. WAGNER, Respondent, v. KAISER FOUNDATION HOSPITALS, a California Corporation, and the Permanente Clinic, a partnership, Appellants. TC 422-528; SC 25435.
• Court: Oregon Supreme Court

Page 1106

589 P.2d 1106

285 Or. 81

Thomas H. WAGNER, Respondent, v. KAISER FOUNDATION HOSPITALS, a California Corporation, and the Permanente Clinic, a partnership, Appellants.

TC 422-528; SC 25435.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 4, 1978.

Decided Jan. 30, 1979.

William L. Hallmark, of Jones, Lang, Klein, Wolf & Smith, Portland, argued the cause for appellants. With him on the briefs was Margaret H. Leek Leiberan, of Jones, Lang, Klein, Wolf & Smith, Portland.

Elden M. Rosenthal, Portland, argued the cause for respondent. With him on the brief was Charles Paulson, Portland.

TONGUE, Justice.

This is an action for damages for medical malpractice against a hospital and a clinic of doctors. Defendants appeal from a judgment based upon a jury verdict against them in the sum of $750,000.

Plaintiff underwent surgery at defendants' hospital, after which it was discovered that he had suffered permanent brain damage. Plaintiff's theory of the case was that he was administered massive overdoses of narcotics by the defendants' nurse anesthetist; that at the conclusion of the surgery inadequate amounts of reversal drugs were administered; that as a result, unnoticed by defendants, his respiration was substantially depressed, and in turn, the amount of oxygen supplied to his brain was reduced (hypoxia), causing diffuse bilateral brain damage.

Defendants' theory of the case was that plaintiff did not suffer diffuse bilateral brain damage, but instead sustained a rather specific localized amount of brain damage, which was the result of a stroke rather than a period of hypoxia. Defendants contended that this stroke occurred at some point during the surgical procedure, or during the plaintiff's stay in the recovery room, and that it was a result of natural causes.

Defendants contend on this appeal that the trial court erred in three respects: in failing to strike one of the specifications of negligence, as alleged in plaintiff's complaint, to the effect that defendants were negligent "in failing to reasonably monitor the changes in plaintiff's respirations"; in admitting improper rebuttal testimony, and in excluding from the jury anyone who was a member of the "Permanente program or Kaiser."

Because of direct conflicts in the testimony it must be kept in mind that after a jury verdict in favor of the plaintiff, this court is required to resolve all conflicts in the testimony in favor of the plaintiff and that plaintiff is entitled to the benefit on this appeal of all evidence favorable to him and of all inferences which may be reasonably drawn from such evidence. Cronn v. Fisher, 245 Or. 407, 416, 422 P.2d 276 (1966).

It is equally fundamental that in determining whether to withdraw an allegation from consideration by the jury it is not the function of the court to weigh conflicting evidence. If an allegation is supported by any competent evidence, including the testimony of a single witness, it is the exclusive function of the jury to decide whether to believe that testimony, despite the fact that all other witnesses may have testified to the contrary. See Hansen v. Bussman, 274 Or. 757, 763, 549 P.2d 1265 (1976), and cases cited therein.

The testimony will thus be summarized in accordance with these established rules.

The facts.

The plaintiff, at the time of trial, was 48 years old, married, and the father of two minor children. Prior to his surgery, he had been employed by Catlin Gable School for 13 years, first as a teacher and then as head of the Lower School.

On November 28, 1973, plaintiff underwent surgery at Bess Kaiser Hospital to correct an obstruction in the tear sac on the right side of his eye. According to the hospital chart and the testimony of Dr. Nevill and several nurses, nothing unusual occurred during either the operation or the period of recovery.

When plaintiff was released from the hospital he experienced spacial disorientation. He no longer remembered the location of things in the interior of his house. He had difficulty driving. He also experienced a reduction in his field of vision and a loss of memory.

Plaintiff was examined by several different neurologists who determined that he had suffered permanent brain damage. Plaintiff continued his job at Catlin Gable School for one year after the surgery, at which time he was fired because the headmaster believed his memory was no longer sufficient. At the time of trial his wage loss exceeded $45,000 and the jury was entitled to find that he had become virtually unemployable.

A neurologist called by plaintiff as an expert witness testified that, in his opinion, "a protracted period of hypoxia" (lack of oxygen to the brain) was the "most probable cause" of plaintiff's "rather diffuse cerebral damage." Other expert witnesses called by plaintiff gave similar testimony.

Plaintiff's expert witnesses also testified that the dose of the narcotics given to plaintiff as an anesthetic by the nurse anesthetist was "greatly excessive" and that the narcotics "tend to slow down the breathing" from 16 to 20 respirations per minute to three or four times per minute and could cause a patient to "forget to breathe." They also testified that the amount of a medication given to plaintiff to counteract that anesthetic and to insure respiration so as to also insure the supply of an adequate amount of blood to the brain was "not nearly enough," was "insufficient in amount" and was not in accordance with "good medical practice." There was also testimony that with the amount of narcotics given "the respiratory depression (of the patient) would last four or five hours"; that a "little bit" of that medication may cause a "little bit of reversal, so that it looks like the patient could breathe, but then thirty minutes later the respiration may have slowed way, way down again because of the tremendous (amount of) narcotic aboard, and the insufficient amount of reversal."

In addition, plaintiff's expert witnesses testified that in this case there "most probably was a period of respiratory depression after conclusion of anesthetic in the recovery room. * * * (I)n the recovery room the patient was breathing on his own and most probably still had a very depressed respiration from the large dose of narcotics"; that plaintiff's respiration rate may have dropped to two to three breaths per minutes; that hypoxia "probably occurred in the recovery room" and that hypoxia "very probably could have" been sufficient to cause some amount of permanent brain damage.

Under these circumstances, according to testimony offered at trial, it was important while plaintiff was in the recovery room that a nurse closely observe at all times the depth of his respiration and also count the number of respirations per minute to determine whether they were within the normal range. Plaintiff's expert witnesses also testified that it was "not * * * good medical practice" in the community not to chart respirations after such a "massive dose" of narcotics; that "the standard of care (in the community) is * * * to chart the respirations on the recovery room sheet"; that the reason for this requirement is that otherwise it is "easy to just look at a patient, see them breathe, and * * * go about your business"; and that a gradual decrease in the rate and volume of respiration might not be noticed without both observing and "charting" that information.

At that time, however, the "standard policy" of the defendants was to "count and observe" respirations of a patient in the recovery room and to administer oxygen, if needed, but not to "chart" such information unless something unusual was observed, such as an unusually slow respiration rate, which would then be "charted."

According to the recovery room chart for plaintiff, he was admitted to the recovery room at 5:25 p. m. and was discharged from it at 7 p. m. The recovery room nurses apparently had no independent recollection of the plaintiff. During that period, however, his pulse and blood pressure were recorded on the chart at 15-minute intervals. It was noted on the chart that plaintiff was "doing well" and that there were "no apparent complications." The rate and depth of his breathing was not charted, however, despite the fact that the chart provided a place for the "charting" of respirations.

1. Failure to strike specification of negligence in failing to reasonably monitor the changes in plaintiff's respirations.

In support of defendants' contention that the trial court erred in not striking from the complaint the specification that defendants were negligent "in failing to reasonably monitor the changes in plaintiff's respirations," defendants say that:

" * * * In a medical malpractice case, an unsuccessful or bad result is not evidence of negligence on the part of the physician who treated the patient.

"All the evidence presented at trial which specifically related to Mr. Wagner's treatment at the hospital supported the defendants' position that Mr. Wagner's respirations were properly monitored. Notwithstanding these facts, plaintiff asked the court to permit the jury to infer that defendants did not 'reasonably monitor the changes in plaintiff's respirations.' Plaintiff's evidence on this issue was negative evidence of failure to chart and the testimony that the medications given could cause depressed respirations. Negative evidence is never admissible unless a proper predicate has been proven. No proper predicate was proven in this case. ¹

"Two of plaintiff's experts (Dr. Holmes and Dr. Anderson) testified that the medication administered could have slowed plaintiff's breathing. The plaintiff did not introduce any evidence which indicated that the plaintiff's breathing actually was slowed. All the evidence which specifically related to Mr. Wagner's treatment at the hospital indicated that Mr. Wagner's respirations were adequately monitored at all times during his stay."

Defendants then cite various...