Allman Ex Rel. Watters v. Holleman , 233 Kan. 781 ( 1983 )

The opinion of the court was delivered by

Herd, J.:

This is an appeal from a jury verdict in a medical malpractice action.

Linda Allman was a 28-year-old widow and the mother of two children. In an effort to control her weight she consulted James F. Holleman, Jr., an osteopathic physician. At the time of the initial consultation, April 2, 1975, Linda was taking Ovulen-21, a birth control pill. She informed Dr. Holleman she also had taken tranquilizers and was taking thyroid medication. She reported she suffered from sluggishness, shortness of breath, and frequent headaches. Dr. Holleman placed her on a weight reduction program in-which she would return to his office every week to be weighed and given a vitamin injection. This procedure was performed by a nurse. Every fourth week Linda would be examined by Dr. Holleman.

Linda saw Dr. Holleman again on April 30 and May 28. The weight reduction program appeared to be working. During the May 28th visit, however, Linda complained of being nervous. Dr. Holleman noticed she had a slightly elevated pulse rate. He placed her on stronger tranquilizers to try and control her anxiety.

After May 28, 1975, Linda stopped coming to Dr. Holleman’s office for her weekly visits. She did not see Dr. Holleman personally until July 7, 1975, approximately one week later than her scheduled appointment. During the July 7 visit she related to Dr. Holleman she was suffering from chest pains so sharp they made her cry. She also complained of pain and tenderness in the stomach area. The chest pains had been present for approximately two weeks; the stomach discomfort had increased over the previous four days. However, she indicated there had been no recent trauma to the abdominal area. Finally, she reported two instances of dark stools.

That same day, July 7, 1975, Ms. Allman was admitted to Providence-St. Margaret Hospital for diagnostic tests. Although Dr. Holleman felt the tests could have been performed on an outpatient basis, Ms. Allman insisted on admission to the hospital. Dr. Holleman commenced tests and Rolando R. Mesina, a medical doctor employed by Dr. Holleman, was called in for consultation after which Dr. Mesina undertook the primary care of Ms. Allman. After several days of tests, on July 13, 1975, Dr. Mesina performed an abdominal paracentesis and found blood in the abdominal cavity. Exploratory surgery was performed and a ruptured spleen was discovered and removed. After surgery, the patient was transferred to the intensive care unit. By the following morning, July 14, 1975, Ms. Allman had developed pulmonary edema, a condition in which the lung tissue retains too much fluid causing the patient to have respiratory problems. Dr. Sherman Zaremski was contacted in consultation and he intubated Ms. Allman with an endotracheal tube, a device placed through the throat and vocal cords into the trachea. This tube was then connected to a ventilator which assisted Ms. Allman’s respiration.

During the afternoon of July 16, 1975, Ms. Allman struggled against the discomfort of the endotracheal tube. At about 6:40 p.m. that evening she succeeded in dislodging the tube. Dr. John Cotter was then called from the hospital emergency room. He reinserted the tube. After making sure everything was satisfactory Dr. Cotter returned to the emergency room. Shortly thereafter the tube became dislodged again. This discovery was made by Dr. Michael Boggan as he walked by Linda’s room after seeing one of his patients. She was cyanotic and had a slow heart rate. Dr. Boggan was too late. His efforts to revive Ms. Allman were unsuccessful and she died.

This action was brought on behalf of Amy and Shane Allman, minor children of Linda Allman, by their grandfather and guardian, Milton Watters, for the alleged wrongful death of their mother. Mr. Watters, as executor of the estate of Linda Allman, also brought his own action for the conscious pain and suffering of the decedent. The total amount of damages sought was $775,000. Initial defendants included Doctors Holleman, Mesina, Cotter and Zaremski; two anesthesiologists; a nurse anesthetist and “Anesthesiology Chartered”; Providence-St. Margaret Health Center; Emergency Physicians, Inc.; and G. D. Searle and Company, the makers of Ovulen-21. The nurse anesthetist was dismissed; the anesthesiologists and “Anesthesiology Chartered” settled for $40,000; Providence-St. Margaret Health Center settled for $65,000; G. D. Searle and Company settled for $10,000; and Dr. Zaremski settled for $40,000.

Trial lasted from September 14 to 30, 1981. The jury found the total amount of damages sustained by the plaintiffs was $150,000. Fault was apportioned as follows:

a. Dr. James F. Holleman, Jr. and Dr. Rolando Mesina........................ 11%

b. Dr. John B. Cotter and Emergency Physicians, Inc............................ 0%

c. Linda Allman............................. 40%

d. Providence-St. Margaret Health Center......... 49%

e. Dr. Sherman C. Zaremski................... 0%

f. Dr. Archibald O. Tetzlaff.................... 0%

g. Searle & Company......................... 0%

Plaintiffs appeal.

Appellants first argue the trial court erred in submitting the fault of Linda Allman to the jury. The trial court instructed the jury on the appellants’ theory of the case. They alleged appellees Holleman and Mesina were negligent in the following respects.

“1. In failing to timely diagnose the extensive free abdominal bleeding of Linda Allman;

“2, In failing to do blood volume studies on Linda Allman;

“3. In failing to timely perform the abdominal paracentesis on Linda Allman;

“4. An undue delay in doing surgical exploration on Linda Allman;

“5. In failing to obtain timely medical consultation of a diagnostician or internal medicine physician.”

The jury was also instructed on the appellants’ allegations that Dr. Cotter was negligent in the manner in which he reinserted the endotracheal tube after Linda Allman had dislodged it. Then, over appellants’ objection, the trial court instructed the jury as follows:

“The defendants deny they were at fault and that they exercised the standard of care required under the circumstances. Defendants further claim that if the plaintiffs sustained damage or injury, it was the fault of Linda Allman in one or more of the following respects:

“(1) The taking of Ovulen 21 birth control pills;

“(2) Failing to give a complete and accurate medical history;

“(3) Delay in seeking medical attention for the condition for which she was hospitalized and/or the condition from which she ultimately died;

“(4) Attempting to remove the endotracheal tube, removal of the endotracheal tube and/or causing loosening or removal of the endotracheal tube.

“The defendants have the burden of proof that their claims are more probably true than not true.”

It is undisputed a party is entitled to an instruction explaining his theory of the case where evidence is introduced in support thereof. Shawnee Township Fire District v. Morgan, 221 Kan. 271, 277, 559 P.2d 1141 (1977). An appellate court’s task is to determine whether, when considered as a whole, the jury instructions properly and fairly state the law as applied to the facts of the case. If they do, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal. Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 601, 545 P.2d 334 (1976). See also Timsah v. General Motors Corp., 225 Kan. 305, 315, 591 P.2d 154 (1979). The controversy here is over the question of whether evidence was introduced which tended to show Linda Allman was negligent.

“Negligence,” as the trial court instructed the jury, “is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all the circumstances then existing.” See also PIK Civ. 2d 3.01 (1977). The court also instructed the jury with regard to causation, stating: “A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which claim is made.” This court’s task, then, is to determine if there is evidence Linda Allman’s actions exhibited a lack of ordinary care and, if so, whether that lack of ordinary care contributed to her death.

The first act of alleged negligence on the part of Ms. Allman was her voluntarily taking Ovulen-21 birth control pills despite the warning on the package. »

Linda Allman took the birth control pills pursuant to a doctor’s prescription. This fact, along with the widespread disregard of warning labels on packages, prohibits a finding of fault on the part of Ms. Allman. Even though there is a recognizable risk, conduct, to be negligent, must be unreasonable. Prosser, Law of Torts § 31 (4th ed. 1971). As we are becoming constantly more aware, nearly all human acts carry with them some degree of risk. When that risk is slight enough that it is commonly disregarded, however, the standard of ordinary care is not violated. Such is the case here with the taking of birth control pills. For an analogous situation, see Sawka v. Prokopowycz, 104 Mich. App. 829, 306 N.W.2d 354 (1981), where the court held it was error to submit the issue of the plaintiff s contributory negligence for smoking cigarettes in an action based on the failure to diagnose lung cancer.

The concept of fault also requires a causal connection between the conduct in question and the injury complained of. A negligent act is the proximate cause of an injury only when the injury is the natural and probable consequence of the wrongful act. Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 552 P.2d 938 (1976). Here any connection between Ms. Allman’s death and her taking Ovulen-21 is speculative and remote. Her death was caused by the dislodging of the endotracheal tube.

As indicated above, this action was brought in part to recover for the conscious pain and suffering of Linda Allman which occurred before her death. The symptoms Linda sought medical treatment for had some similarity to the warnings listed on the birth control pills. Thus, the taking of the pills could possibly be relevant to pain and suffering. The trial court, however, made no distinction between wrongful death and pain and suffering in its instructions. As such, the jury instructions were misleading and confusing.

The second assertion of negligence on the part of Linda Allman was her alleged failure to give an accurate medical history. The evidence in the case indicated it was very unusual for a ruptured spleen to occur without some prior trauma to the area. Ms. Allman never indicated any trauma when she related her medical history. Thus, the appellees contend the jury could easily infer she gave an inaccurate history. They provided, however, no evidence that she did in fact give an inaccurate history. Further, as the warnings on the birth control pill package indicated, abnormal blood clotting was a risk which might lead to an injury such as a ruptured spleen. The giving of an inaccurate medical history could be a negligent act, but here there is no evidence of such an act.

With regard to causation on this issue there was again no distinction in the instructions between the wrongful death action and the claim for conscious pain and suffering. The failure to give an accurate medical history would, have been more closely connected to Linda Allman’s conscious pain and suffering than to her actual death.

The court’s failure to differentiate between the claims made on behalf of Linda Allman’s children and those made by her estate also creates a problem with regard to the next act of alleged negligence, Linda Allman’s delay in seeking medical treatment. Indeed, there was evidence Ms. Allman had been experiencing rather severe symptoms for two weeks prior to July 7, 1975. There was also evidence she was a week late in keeping her appointment with Dr. Holleman for her monthly checkup. Although the delays could have contributed to her conscious pain and suffering, it certainly had nothing to do with the immediate cause of her death — the removal of the endotracheal tube.

The final area in which Linda Allman was allegedly negligent was the part she played in causing her endotracheal tube to become dislodged. The evidence indicated Linda Allman was restless prior to the time of her death and had to be placed in restraints for the purpose of preventing the tube from dislodging. Indeed, she had already extubed herself once. The question here, however, concerns whether her actions amounted to negligence. According to the trial court’s instructions Linda Allman could be considered negligent if she failed to do what an ordinary person would do under the same circumstances. The evidence indicated it is normal for an endotracheal tube to become dislodged when a patient is restless or sweaty. In this respect Linda Allman did nothing out of the ordinary. She was in intensive care because she needed more than ordinary assistance. Under such circumstances it would take strong evidence Ms. Allman was consciously responsible for the removal of the tube. Defendants introduced no such evidence. We hold one in intensive care is not negligent in inadvertently removing life support equipment. We find no evidence of negligence on the part of Ms. Allman.

Appellants also argue the trial court erred in allowing evidence of the resources available to Linda Allman’s children as a result of the death of their father, James Allman. Mr. Allman had been killed in an occupational accident approximately one year earlier.

Prior to trial appellants moved the trial court to exclude all evidence regarding benefits received by the Allman children. The trial court overruled this motion except that it excluded evidence of “any insurance policy benefits received by plaintiffs as a result of the death or treatment of Linda Allman.” During the direct examination of Milton Watters appellants’ counsel inquired as to why Mr. Watters had not attempted to adopt the Allman children. Mr. Watters replied that adoption “would interfere with their social security rights.” During cross-examination of Mr. Watters opposing counsel was permitted to elicit information from him of the total amount of social security received and the amount of a trust fund available to the children from their father’s estate.

Except as otherwise required by statute or constitution, all relevant evidence is admissible. See K.S.A. 60-407(/). Thus, the court first must decide whether the evidence regarding benefits received by the Allman children was relevant.

The action brought on behalf of Shane and Amy was for the wrongful death of their mother. A wrongful death action may be brought by any of the deceased’s heirs at law to obtain damages resulting from the death. K.S.A. 60-1901 and 60-1902. Except for pecuniary loss, damages in a wrongful death action cannot exceed $25,000. K.S.A. 60-1903. Thus, any large recovery by a plaintiff in a wrongful death action will consist mainly of pecuniary damages. According to Black’s Law Dictionary 1343 (3rd ed, 1933), pecuniary loss in a wrongful death action refers to:

“the reasonable expectation of pecuniary benefit from the continued life of the deceased, to be inferred from proof of assistance by way of money, services, or other material benefits rendered prior to death, [Citations omitted.] ‘Pecuniary loss’ is a term employed judicially to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of the society and companionship of the deceased relative upon which, in the nature of things, it is not possible to set a pecuniary valuation.”

The evidence of benefits received from Mr. Allman’s estate was admitted on the theory it would tend to reduce the amount of money Ms. Allman would have provided for the support of her children.

Appellants argue the evidence was irrelevant and should have been excluded under the “collateral source” rule. This rule provides “benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.” Pape v. Kansas Power & Light Co., 231 Kan. 441, 446, 647 P.2d 320 (1982). See also Selgado v. Commercial Warehouse Company, 86 N.M. 633, 526 P.2d 430 (1974); Cagle v. Atchley, 127 Ga. App. 668, 194 S.E.2d 598 (1972).

We agree. As the definition illustrates the collateral source rule is merely a species of the relevancy doctrine. Here the question for the jury was the value of Ms. Allman’s lost services and monetary contributions to the children. The fact the children received some assistance from another source has nothing to do with the services and support provided by Ms. Allman herself. We hold it was error for the trial court to admit evidence of resources available to the children from other sources.

The judgment of the trial court is reversed and this case remanded for a new trial.