Wickliffe v. Sunrise Hosp., Inc.

• Decision Date: 24 September 1985
• Docket Number: No. 15668,15668
• Citation: 706 P.2d 1383,101 Nev. 542
• Parties: Patricia A. WICKLIFFE, as Special Administratrix of the Estate of Angela R. Wickliffe, Deceased, on behalf of the heirs of the Estate, and Patricia A. Wickliffe and John C. Wickliffe, individually, as Natural Parents of said deceased minor, Appellants, v. SUNRISE HOSPITAL, INC., a Nevada corporation, Respondent.
• Court: Nevada Supreme Court

Page 1383

706 P.2d 1383

101 Nev. 542

Patricia A. WICKLIFFE, as Special Administratrix of the

Estate of Angela R. Wickliffe, Deceased, on behalf of the

heirs of the Estate, and Patricia A. Wickliffe and John C.

Wickliffe, individually, as Natural Parents of said deceased minor, Appellants, v. SUNRISE HOSPITAL, INC., a Nevada corporation, Respondent.

No. 15668.

Supreme Court of Nevada.

Sept. 24, 1985.

Crockett & Myers and Jonathan C. Reed, Las Vegas, for appellants.

Barker, Gillock & Perry and Kerry L. Earley, Las Vegas, for respondent.

[101 Nev. 544] OPINION

MOWBRAY Justice:

Appellants John and Patricia Wickliffe appeal from a judgment for respondent Sunrise Hospital in an action for the wrongful death of their teen-aged daughter Angela. While recovering from successful surgery at Sunrise, Angela suffered a respiratory arrest and died twelve days later. We hold that the district court erred by excluding the testimony of the Wickliffes' expert witness under the locality rule. We reverse and remand for a new trial applying a national standard of care to Sunrise.

THE FACTS

At 7:40 a.m. on December 7, 1978, Angela Wickliffe underwent an operation at Sunrise Hospital to correct the curvature or scoliosis of her spine. Angela was a healthy thirteen-year-old. The operation, called a Harrington rod procedure, was performed by Dr. James Ogilvie, his first surgical assistant, and Dr. William Kemp, an anesthesiologist. The oepration was uneventful and successful. At the end of surgery, at 9:40 a.m., Angela was given narcan, a narcotic antagonist, to reverse the effects of the anesthesia she had received.

Once in the recovery room, at 9:50 a.m., Angela showed signs of delirium and began thrashing about. Dr. Kemp orally ordered the recovery room nurse to give Angela 2 milligrams (mgs.) doses of morphine sulphate (morphine) until she calmed down. Morphine's most common side effect is respiratory depression, i.e., a slowing down of breathing. Dr. Kemp observed Angela respond favorably to the first 2 mgs. of morphine. Then, Dr. Kemp left the recovery room to assist in another surgery. The nurse administered a total of 12 mgs. of morphine over twenty minutes. Dr. Kemp testified that he did not expect the nurse to give as much as 12 mgs. since two seemed to have an effect. Because Angela was still restless, the nurse obtained permission from Dr. Kemp to give Angela valium and administered 1 mg. of it. Dr. Ogilvie observed Angela in the recovery room at 10:30 a.m. and found her to be recovering normally. He did not know at the time that she had been given narcan and morphine after the operation. Dr. Ogilvie testified that Angela may have appeared normal after such a large dose of morphine because the narcan was still in her system.

At 11:20 a.m., Angela was transferred from the recovery room to her room on the surgical floor. The recovery room nurse gave the head nurse of the surgical floor a report on Angela's condition. This report included the fact that Angela had been given 12 mgs. of morphine and some valium in the recovery room. Patricia Wickliffe joined Angela in her room. Angela's assigned nurse was at lunch so a patient care attendant ¹ checked Angela's vital signs at 11:30 a.m. and immediately recorded or "charted" them. Vital signs include pulse, respiration, blood pressure, temperature and the quality of the patient's breathing and consciousness. Angela's vital signs were normal at this time. Dr. Ogilvie visited Angela in her room soon afterwards and assessed her condition as good.

At noon, a lab technician drew a blood sample from Angela, as ordered by Dr. Ogilvie's partner. Angela was awake enough to help the technician. Angela's assigned nurse refilled her water pitcher at 12:15 p.m. The nurse noticed Angela was snoring. Snoring-like sounds, if accompanied by other signs of distress, can be a Dr. Ogilvie testified that Angela died from respiratory depression due to the administration of morphine. Three other doctors testified they could not form an opinion as to the cause of Angela's death.

sign of respiratory depression. The nurse charted her observations two hours later. At 12:30 p.m., a nursing assistant brought Angela's lunch tray into her room. Angela was snoring. The nursing assistant left the room to check to make sure Angela was to have lunch. When she returned, the nursing assistant noticed Angela was no longer snoring. Mrs. Wickliffe could not wake Angela. The nursing assistant discovered Angela had no pulse and was not breathing and called for help. The head nurse ran into the room and began cardiopulmonary resuscitation. Doctors were later able to revive Angela to a comatose state. She never regained consciousness, however, and died from brain damage from a lack of oxygen on December 19, 1978.

Patricia and John Wickliffe filed suit against Sunrise for the wrongful death of their daughter. The Wickliffes alleged negligence of the hospital employees, the nurses. The Wickliffes did not sue Angela's doctors who were not hospital employees.

At trial, the Wickliffes sought to prove that Sunrise violated its own procedures and gave Angela nursing care that fell below certain minimum standards in the profession. Specifically, the Wickliffes attempted to establish that Sunrise's written procedures and the standard of care for nursing in general required that the vital signs of a post-surgical patient be monitored every fifteen minutes for the first hour the patient is back on the surgical floor. Angela's vital signs were not checked between her return to the floor at 11:30 a.m. and the discovery of her respiratory arrest at 12:40 p.m. The Wickliffes also alleged that the nurses failed to give Angela the appropriate care under the special circumstances of her case. These circumstances included the fact that she was given a substantial dose of morphine in the recovery room and thereafter displayed symptoms of respiratory depression.

The Wickliffes were hampered in their efforts to prove the standard of care for post-surgical patients in general and at Sunrise in particular by evidentiary rulings of the district court. The testimony of Carolyn Sandler, R.N., an expert witness on nursing procedures, was excluded in its entirety. The testimony of Marjorie Woods, R.N., a retired nursing supervisor from Sunrise, was excluded from the Wickliffes' case-in-chief. In addition, important and relevant documentary evidence was deemed inadmissible.

The jury returned a verdict for Sunrise. The Wickliffes appeal from the judgment entered on this verdict. For the reasons set forth below, we reverse.

THE LAW

On appeal, the Wickliffes challenge the exclusion of their expert witness, Nurse Sandler. At a hearing outside the presence of the jury, Nurse Sandler testified that in her opinion Angela did not receive the minimal care due a post-surgical patient who had been given a narcotic in the recovery room. According to Nurse Sandler's testimony, the national standard of nursing care in 1978 required that a nurse observe a post-operative patient and take the patient's vital signs every fifteen minutes for at least the first hour the patient is back on the surgical floor. ² Nurse Sandler based her opinion upon the level of care established by standards promulgated by the American College of Utilization Review Physicians (ACURP) and by the Joint Commission on Accreditation of Hospitals (JCAH) and from her own familiarity with nursing procedures.

After three years of nursing school, Nurse Sandler received her degree as a The district court excluded Nurse Sandler's testimony under the so-called "locality rule." The locality rule provides that the medical treatment of a patient is measured against the standard of care acceptable in the local community. See Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 De Paul Law Review 408, 409 (1969). Consequently, "the locality rule was said to require that a medical witness seeking to give opinion evidence in a malpractice action must first show his knowledge of the standards prevailing in the particular locality." Orcutt v. Miller, 95 Nev. 408, 412, 595 P.2d 1191, 1193 (1979) (citing Lockart v. MacLean, 77 Nev. 210, 215, 361 P.2d 670, 673 (1961)). Nearly twenty-five years ago this Court adopted the locality rule for expert witnesses "in the fields of medicine and surgery." Lockart, 77 Nev. at 215, 361 P.2d at 673. Presumably, the locality rule applies to hospitals, although this Court has never expressly so held. The locality rule was premised on the rationale that "there exists gross inequality between physicians practicing in large urban areas and those practicing in more remote rural communities. The policy behind the rule was to prevent the small town practitioner from being held to the standard of practice of the more sophisticated urban areas." Orcutt, 95 Nev. at 413, 595 P.2d at 1194. Cf. Waltz, supra at 410.

registered nurse in 1965. She was certified in the nursing specialities of intensive care, coronary care, emergency room and advanced coronary life support. Nurse Sandler is also certified in quality assurance by ACURP. At the time of trial, she had been conducting quality reviews of various hospitals in the Philadelphia, Pennsylvania, area for four years. Her duties [101 Nev. 547] included determining whether a hospital satisfied the national requirements for accreditation by JCAH. Nurse Sandler has also been a nursing supervisor and the head nurse of a medical-surgical unit at hospitals in New Jersey. She testified that she was familiar with national nursing policies and procedures but not with nursing practices in Las Vegas in particular.

More recently, this Court recognized that "the reasons underlying the strict locality rule a century ago simply do not justify its continued existence today." Orcutt, 95 Nev. at 413, 595 P.2d at 1194. In Orcutt, this Court overruled Lockart as it applied to physicians who were...