ZeBarth v. Swedish Hospital Medical Center

Decision Date20 July 1972
Docket NumberNo. 42040,42040
Citation52 A.L.R.3d 1067,81 Wn.2d 12,499 P.2d 1
Parties, 52 A.L.R.3d 1067 Donald ZeBARTH, Respondent, v. SWEDISH HOSPITAL MEDICAL CENTER, doing business as Swedish Tumor Institute, a corporation, Appellant.
CourtWashington Supreme Court

Williams, Lanza, Kastner & Gibbs, Joseph J. Lanza, Culp, Dwyer, Guterson & Grader, William L. Dwyer, Seattle, for appellant.

Daniel F. Sullivan, Seattle, for respondent.

HALE, Associate Justice.

Defendant hospital administered to plaintiff a course of radiation therapy in treating him for Hodgkin's disease. About a year after the treatments had ended, plaintiff became paralyzed from injury to his spinal cord. He brought this action against the hospital alleging negligence in the treatment, and a jury returned a verdict in the sum of $450,280. Defendant hospital appeals a judgment entered upon that verdict, making five assignments of error. 1

Plaintiff, 23 years of age and on active duty with the United States Coast Guard, was stationed at Coos Bay, Oregon, when he was taken to the Coos Bay Hospital with a fever, May 9, 1963. The doctor treating him observed a pulling, nontender mass on the right of his neck. After the fever had subsided for 24 hours, plaintiff was transferred at the direction of his unit medical officer to the United States Public Health Service Hospital in Seattle. On admission to that hospital on May 15, 1963, his principal symptoms were shortness of breath on exertion, pain in the right shoulder and low back, and a persistent cough.

Physical and laboratory examination at the public health hospital led to a tentative diagnosis of Hodgkin's disease. The doctors there observed a 1 1/2 cm. node in the right supraclavicular fossa and a .6 cm. node in the left. Biopsy of the right node, May 21, proved it to be malignant, and it was identified by the pathologist as Hodgkin's sarcoma. Hodgkin's disease, it was agreed, is a generalized malignancy involving the reticuloendothelial system--that is, cells within the lymph system; sarcoma is a tumor deriving from cells of an internal layer of the skin (epithelium). The doctors at the public health hospital told plaintiff that he had Hodgkin's disease, that it was a form of cancer, and that it would require extensive treatment. The record is not clear whether he was told it was a fatal disease although all experts agree that, if left unimpeded by therapy, it will with extremely rare exception prove fatal. It is a virtual certainty, however, that plaintiff knew he was very seriously ill. A bronchoscopy performed at the hospital June 3 revealed a mass in the area of the trachea and adjacent main stem bronchi. Due to a decrease in the caliber of the bronchi, the doctor could not pass an 8 mm. bronchoscope beyond the mass, indicating a very serious obstruction of the trachea.

Dr. Frederick Warren Lovell, a specialist in pathology, called by the plaintiff, testified that he had reviewed the medical records and reports pertaining to plaintiff and had examined the microscope tissue slides. He concluded, as did other specialists, that, at the time plaintiff entered the defendant clinic, he was suffering from the 'subgroup of malignant lymphoma' identified more particularly as 'Hodgkin's sarcoma' or, as it is otherwise described, 'reticulum cell sarcoma.' Referring to one of the slides, the doctor said it showed a 'highly malignant undifferentiated neoplasm,' and that the outermost covering of the affected area of the body, known as the epithelium, showed marked changes from normal tissue, the changes being known as metaplasia. Corroborating other medical specialists on this point, Dr. Lovell said that the lymphoma afflicting plaintiff was one of a group that is very responsive to radiation, pointing out that lymphomas respond much better to radiation therapy than that other group of cancers known as carcinoma.

After reviewing the hospital records of myelograms that had been taken, and the records of bone marrow studies, and having examined the plaintiff's bone marrow, in response to the question as 'to whether or not Mr. ZeBarth's present paraplegia is due to the radiation he received,' Dr. Lovell testified that in his opinion, '(Mr. ZeBarth) has irradiation myelitis in the spinal cord at the level of approximately the 5th dorsal vertebra.' Referring to external appearance and some apparent amendments or changes in the records of the amounts of radiation administered to the patient, the doctor testified that the defendant's skin showed a marked radiation scarring reaction on his back and that ZeBarth had probably received substantially more radiation to his back than the record indicated.

During the course of his testimony, the plaintiff related how his progressive paralysis, beginning about 12 months after completion of the radiation therapy, led to his wife's obtaining a divorce from him; how the progressive paralysis gradually prevented him from pursuing his hobby and sometime vocation, auto mechanics; how it interfered with his relationships with his two children; how he required constant care and assistance with the most basic bodily functions; how, because of his inability to exercise any muscle control, he had to wear a catheter constantly and suffered chronic infection from it; how the damage to his spinal cord has resulted in severe, persistent pain to the paralyzed portion of his body; how he suffered resultant increasing dependence on, if not actual addiction to, narcotic drugs; and how he has seizures of uncontrollable muscle spasms which develop frequently despite the muscle relaxant drugs which he takes regularly on prescription. The defendant makes no claim that the verdict of the jury is excessive or that it was the result of passion or prejudice.

Seven highly trained and certified medical specialists testified in the case, including one neurosurgeon, two radiotherapists and radiologists, two radiotherapists, a pathologist and a physician engaged in completing his residency in radiation therapy at defendant Swedish Tumor Institute. In the course of his treatment for Hodgkin's disease, plaintiff received nitrogen mustard therapy, too, and there was a conflict among the medical specialists as to whether this contributed to the cause of the paralysis. There was no substantial conflict among them, however, that a total dosage of 4,000 Roentgen (R.) of radiation administered over a 4-week period in fractionated doses did not depart from accepted medical standards, but there was a dispute as to whether a first dose in the amount of 1,000 R. was excessive and dangerous.

It was upon this initial 1,000 R. dose that the issue of negligence as a fact largely depended, but there were other claims of negligence, too. The evidence conflicted on whether the first treatment of 1,000 R. was properly administered, and whether the remaining total treatment did not in fact exceed the 3,000 R. as recorded. From medical testimony describing plaintiff's physical condition after the radiation and the appearance of his skin considered in relation to the amount and duration of the entrance and exit doses and viewed in connection with some amendments to and inconsistencies and alterations in the medical records, the jury could infer that plaintiff had received more than the recorded 3,000 R. of radiation after the initial 1,000 R. treatment.

Dr. John Hunt Walker, for example, testified that in his opinion there had been an error in calculation made at the beginning of the fractionated doses, and he observed changes in the records reflecting the dimensions of the entry portal. So slight an error in these dimensions, he said, would increase the entry dose by 20 per cent, and thus increase the amount of radiation reaching the spinal cord. There was other evidence from which the jury could infer that plaintiff may have received an additional 1,000 R., for one of the defendant's staff doctors had made a notation in the patient's record of treatment indicating a 1,000 R. midplane tumor dose administered from the level of the hyoid down, an area not encompassed in the other medical records.

All of these varying considerations of fact were, we think, resolved at trial. There was a sharp conflict in the evidence given by highly trained and qualified medical specialists as to whether the plaintiff on his first visit to defendant institute was in such extreme emergency as to require a massive first dosage to preserve his life. There was an equally sharp conflict as to whether, assuming such an extreme emergency a lesser fractionated dosage at the outset would be expected to produce such a swelling of the trachea and adjacent tissue so as to deprive the patient of breath and thereby life. There was testimony to the contrary: that plaintiff, ambulatory and suffering little physical discomfort at the time of the first examination and treatment by defendant, was not in extremis and that, allowing for the normal and expected growth of the cancer, he still had many days over which the treatment could have been extended without further endangering his life and, moreover, with substantially less risk of myelopathy.

As earlier noted, defendant moved for a directed verdict and judgment non obstante veredicto, and assigns error to the denial of these motions. Our study of the record convinces us that there was sufficient evidence of negligence to take the case to the jury, and we therefore apply the long-established rule that, if there is substantial credible evidence to support the verdict it will be sustained. Since the evidence sustains the verdict, these particular assignments of error need no further discussion.

Defendant assigns error to instruction No. 3 2 given to the jury on the subject, Inter alia, of res ipsa loquitur. Although that instruction embraces circumstantial evidence, direct evidence, and res ipsa loquitur, defendant's exception to it and the assignment are directed to...

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    ...Such information must include the possibility of alternative treatment or no treatment at all. ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wash.2d 12, 499 P.2d 1, 52 A.L.R.3d 1067 (1972); RCW 7.70.050(3)(d). Thus, freedom of choice with respect to medical treatment encompasses the right to refus......
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