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