Wasem v. Laskowski

• Decision Date: 08 January 1979
• Docket Number: No. 9460,9460
• Citation: 274 N.W.2d 219
• Parties: Leslie R. WASEM and Lenora Wasem, Plaintiffs and Appellants, v. E. J. LASKOWSKI, K. G. Foster, and Quain and Ramstad Clinic, a partnership, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 219

274 N.W.2d 219

Leslie R. WASEM and Lenora Wasem, Plaintiffs and Appellants, v. E. J. LASKOWSKI, K. G. Foster, and Quain and Ramstad Clinic,

a partnership, Defendants and Appellees.

Civ. No. 9460.

Supreme Court of North Dakota.

Jan. 8, 1979.

Freed, Dynes, Malloy & Reichert, Dickinson, and Mandel & Stiegler, Minneapolis, Minn., for plaintiffs and appellants; argued by Alan Stiegler, Minneapolis, Minn.

Fleck, Mather, Strutz & Mayer, Bismarck, and Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendants and appellees; argued by William A. Strutz, Bismarck.

PEDERSON, Justice.

This is an appeal by Mr. and Mrs. Wasem from a judgment dismissing a medical malpractice claim against Dr. Laskowski, Dr. Foster, and the Quain and Ramstad Clinic. The appeal is also from an order denying a motion for new trial.

The trial record includes 16 volumes of transcript, plus numerous depositions and exhibits. Although a very complex medical question is involved, the only issues raised on this appeal relate to the failure to give requested jury instructions. Mr. and Mrs. Wasem claim that they were entitled to specific instructions that:

(1) It is prima facie evidence of negligence when a doctor deviates from a drug manufacturer's instructions;

(2) The jury may infer from an injury and the circumstances surrounding it that the doctor failed to exercise proper skill and care; and

(3) The doctor had an obligation and duty to inform the patient when an abnormal condition developed.

Wasem visited the Quain and Ramstad Clinic in Bismarck in April 1973. He was suffering from neck pains and recurring numbness of the right arm and hand. He had previously consulted doctors in Dickinson. Dr. Laskowski performed a myelogram by injecting Pantopaque dye into Wasem's spinal canal. This diagnostic test uses the dye as a contrast medium for observing the interior of the spinal canal on the fluoroscopy screen and on x rays. When the test was completed, the dye did not flow back out of the needle and no effort was made to remove the dye at that time. In the months that followed, severe paralysis of the lower extremeties occurred, allegedly caused by an inflammation and scarring of the arachnoid membrane in the spinal canal.

Wasem contended that, when conducted properly, a Pantopaque myelogram is a harmless test and that removal of the dye is the only way to properly conduct the test. He further contended that adhesive arachnoiditis resulted from a toxic reaction to the dye and that the paralysis resulted therefrom. He further contended that, even though the results may have been extremely rare, the doctors failed to fulfill their obligation to inform him of the abnormal condition.

1. Prima Facie Evidence.

Wasem requested, and the court refused to give, the following instruction "Plaintiff's Requested Instruction No. 8

"If a manufacturer recommends conditions for the use of a drug, precautionary measures which should be observed, and warns of dangers inherent in its use, a doctor's deviation from such recommendations is prima facie evidence of negligence by the doctor if there is competent medical evidence that the patient's injury resulted from the doctor's failure to adhere to the manufacturer's recommendation. Under such circumstances, it then becomes incumbent upon the doctor to justify or excuse his deviation."

The trial court was not asked to, and did not, define the words "prima facie evidence." The specific instruction given to the jury was:

"The instructions issued by the manufacturers for the use of a drug are competent evidence to use in determining whether the appropriate standard of care was followed."

The manufacturer's statement of directions was introduced as an exhibit. It was a comprehensive statement containing a description and chemical-structured configuration, pharmocology, indications and contraindications, warnings, precautions, directions for dosage and administration (which include removal procedures), as well as a statement of "Adverse reactions," which provides:

"Clinical reports indicate that the incidence and the severity of the side effects following Pantopaque myelography with aspiration of the medium are but slightly greater than with ordinary lumbar puncture. In 10-30 percent of such cases there may be transient symptomatic reactions consisting of slight temperature elevation and increase of symptoms referable to a back condition. When the medium is not removed, similar transient side effects occur with a slight elevation of temperature in a greater percent of patients. To reduce the reactions to a minimum, Pantopaque should be removed by aspiration after myelography.

"Occasional severe arachnoiditis occurs producing headache, fever, meningismus, pains in the back and extremeties and elevations in the white blood count and the protein content of the cerebrospinal fluid. The incidence and severity of arachnoiditis are generally increased when active subarachnoid bleeding has been induced by the lumbar puncture.

"Rare instances of the development of lipoid granulomas, obstruction of the ventricular system and venous intravasation producing pulmonary emboli have been reported."

Wasem relies principally upon Mulder v. Parke Davis & Company, 288 Minn. 332, 181 N.W.2d 882 (1970), a case in which the trial court directed a verdict for defendant. Mulder did not involve jury instructions. The only question in that case was whether there was sufficient evidence to make a prima facie case. Wasem says "the Mulder instruction has been approved in the case of Mueller v. Mueller, 221 N.W.2d 39 (S.D.1974)." Although Mueller does involve jury instructions, the court in that case omitted the words "prima facie evidence" and substituted therefor the words "evidence of negligence." See also Lhotka v. Larson, 238 N.W.2d 870 (Minn.1976). The other cases cited by Wasem, Nolan v. Dillon, 261 Md. 516, 276 A.2d 36 (1971), and Southern Florida Sanitarium & Hospital, Inc. v. Hodge, 215 So.2d 753 (Fla.App.1968), do not support his position. In Nolan v. Dillon, supra, at 276 A.2d 48, the court specifically approved an instruction that manufacturer's labeling "is evidence to be considered with all other evidence." Southern Florida Sanitarium & Hospital, Inc. v. Hodge, supra, did not involve instructions on manufacturer's recommendations.

"Judicial opinions are written to guide the judge as to the law, not to standardize the language to be used in instructions to the jury." People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689, 690 (1933).

In North Dakota we have consistently said that "in passing on the correctness of jury instructions given by a trial court, we will consider the instructions which were given as a whole rather than consider individual instructions or portions of such instructions." Belinskey v. Hansen, 261 N.W.2d 390, 396 (N.D.1977). Even when an instruction is insufficient or erroneous standing alone, we would consider the apparent error cured if the instructions as a whole fairly advise the jury as to the law which pertains to the essential issues. See Leake v. Hagert, 175 N.W.2d 675 (N.D.1970); Thornburg v. Perleberg, 158 N.W.2d 188 (N.D.1968); Jasper v. Freitag, 145 N.W.2d 879 (N.D.1966); Stokes v. Dailey, 97 N.W.2d 676 (N.D.1959); Lund v. Knoff, 85 N.W.2d 676 (N.D.1957); Donahue v. Noltimier, 61 N.D. 735,240 N.W.2d 862 (1932); and Axford v. Gaines, 50 N.D. 341, 195 N.W. 555 (1923). That is not to say that an erroneous instruction cannot be so prejudicial as to require a new trial even though it may be offset by a correct instruction. The case before us is not of that nature.

Wasem wanted the jury to be instructed that the doctor's deviation from the manufacturer's recommendations constituted "prima facie" evidence of negligence. The trial court instructed that the deviation was evidence of negligence. We agree with a statement made by the Iowa Supreme Court that:

". . . these words (prima facie case) . . . should not be used unless they are found in the language of an applicable statute." State v. Kulow, 255 Iowa 789, 123 N.W.2d 872, 877 (1963).

We also approve, as a general statement:

"The language, form, and style of the instruction in which a court expounds the law are matters addressed to the sound discretion of the court; the instructions may be couched in any language or given in any form or style, so long as they fully and fairly inform the jury of the rules and principles of law applicable to the case and are plain, simple, and easily understood by the jury. The court should avoid the use of technical terms and names that the jury are not supposed to understand. When technical terms are employed, they should be defined." 75 Am.Jur.2d Trial, § 608.

As the Supreme Court of Texas said in Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857, 859 (Tex.1975):

"The term 'prima facie evidence' is ambiguous at best. As Professor Wigmore points out, it is sometimes used 'as equivalent to the notion of a presumption,' i. e. it entitles the proponent to an instructed verdict on the issue in the absence of evidence to the contrary. The term is also used to mean that the proponent has produced sufficient evidence to go to the trier of fact on the issue. (Cites omitted.)"

We defined "prima facie evidence" in Schnoor v. Meinecke, 77 N.D. 96, 40 N.W.2d 803, 808 (1950), and, in Kuntz v. McQuade, 95 N.W.2d 430 (N.D.1959), we discussed the distinction between permissible inferences and presumptions in applying the doctrine of res ipsa loquitur. See also Bergley v. Mann's, 99 N.W.2d 849 (N.D.1959).

The Wasems do not argue that they were entitled to an instructed verdict. There was "evidence to the contrary" introduced in this case and, accordingly, the labeling of the evidence as "prima facie" would have been improper even if those words had been fully defined. It was not error to refuse to give requested instruction No. 8.

2. Inferences of Negligence Res Ipsa Loquitur.

The Wasems requested and the...