Mary Alice Bolton Prince v. St. Thomas Hospital ( 1996 )

MARY ALICE BOLTON PRINCE, )
by and through her conservator, )
James M. Bolton, )
)
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9604-CV-00184
v. )
) Davidson Circuit
ST. THOMAS HOSPITAL; HOSPITAL ) No. 90C-4082
CORPORATION OF AMERICA; )
HOSPITAL CORPORATION OF AMERICA )
dba HCA EDGEFIELD HOSPITAL;
MILLER MEDICAL GROUP; JACK T.
SWAN,M.D.; THOMAS C. FARRAR,
)
)
)
FILED
M.D.; and LANGDON G. SMITH,M.D. )
) November 1, 1996
Defendants/Appellees. )
Cecil W. Crowson
Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
RANDALL L. KINNARD ROBERT E. HOEHN
DANIEL L. CLAYTON 4527 A Highway 70 East
Kinnard & Clayton White Bluff, Tennessee 37187
The Woodlawn ATTORNEY FOR THOMAS C. FARRAR,M.D.
127 Woodmont Boulevard
Nashville, Tennessee 37205
ATTORNEYS FOR Mrs. Prince/APPELLANT
ROSE P. CANTRELL DAVID L. STEED
Parker Lawrence Cantrell & Dean Cornelius & Collins
200 Fourth Avenue North 2700 Nashville City Center
Fifth Floor 511 Union Street
Nashville, Tennessee 37219 Nashville, Tennessee 37219
ATTORNEY FOR ST. THOMAS HOSPITAL ATTORNEY FOR LANGDON G. SMITH,M.D.
and JACK T. SWAN, M.D. and MILLER MEDICAL GROUP
C.J. GIDEON, JR.
Gideon & Wiseman
NationsBank Plaza
Suite 1900
Nashville, Tennessee 37219
ATTORNEY FOR HOSPITAL CORPORATION
of AMERICA
REVERSED AND REMANDED
SAMUEL L. LEWIS, JUDGE
O P I N I O N
This is an appeal by plaintiff/appellant, Mary Alice Bolton
Prince, from the decision of the trial court granting the motions
for summary judgment of defendants/appellees. The trial court
based its decision on its finding that Mrs. Prince was fifty
percent or more at fault. The facts out of which this controversy
arose are as follows.
I. Facts and Procedural History
On 20 June 1986, Mrs. Prince, a twenty-seven year-old woman,
took an unknown number of pills at approximately 9:00 p.m. Mrs.
Prince's husband, Russell Prince, called the Vanderbilt Poison
Control Center. The center told Mr. Prince that the pills were a
combination of caffeine and ephedrine and advised him to give Mrs.
Prince ipecac to induce vomiting. Mr. Prince drove Mrs. Prince to
a pharmacy where he purchased the ipecac. Without reading the
instructions, Mr. Prince had Mrs. Prince drink the ipecac. Mrs.
Prince began to vomit around 9:30 p.m. Mr. Prince estimated that
there were a "half a dozen or so" pills in the vomitus. Mrs.
Prince continued to vomit after the couple returned home. Mr.
Prince decided to take Mrs. Prince to the nearest hospital,
Hendersonville Hospital.
Hendersonville Hospital refused to admit Mrs. Prince because
of her insurance so Mr. Prince took her to St. Thomas Hospital.
Dr. Jack Swan attended to Mrs. Prince in the emergency room and
took her and Mr. Prince's histories. Although it is unclear who
told Dr. Swan, at some point, Dr. Swan was told that Mrs. Prince
had taken between twenty and forty pills. Dr. Swan examined Mrs.
Prince, but did not order an IV to replace lost fluids, antiemetics
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to stop the vomiting, a drug screen, lab tests, a urinalysis, or a
serum electrolyte. After his examination, Dr. Swan discharged Mrs.
Prince and instructed Mr. Prince to drive her to Edgefield
Hospital, a provider approved by Mrs. Prince's insurer.
Still vomiting, Mrs. Prince entered the Edgefield emergency
room one hour after being admitted to the St. Thomas emergency
room. Dr. Farrar examined Mrs. Prince and noted that she had a
rapid heart beat with premature ventricular beats. He ordered
numerous tests which revealed that Mrs. Prince's potassium level
was dangerously low. Dr. Farrar contacted Dr. Langdon Smith to
inform him of Mrs. Prince's condition, but did not tell him of the
low levels of potassium. Dr. Farrar admitted Mrs. Prince to ICU
and ordered that she receive ten milliequivalents of potassium per
hour.
Dr. Smith conducted an examination of Mrs. Prince at 6:30 a.m.
on 21 June 1986. He did not issue any new orders at that time. A
second potassium check revealed that Mrs. Prince's potassium level
was 2.4.1 Dr. Smith returned at 7:30 a.m. and cut the third run of
potassium in half. At approximately 11:49 a.m., Mrs. Prince
suffered a cardiac arrest followed by a coma. As a result, she
suffered permanent brain damage and recent memory loss.
On 19 February 1991, Mrs. Prince filed a complaint alleging
medical malpractice and naming multiple defendants. The court
entered an order dismissing numerous defendants on 2 October 1991.
The remaining defendants were Hospital Corporation of America, Dr.
Smith, Miller Medical Group, Dr. Farrar, St. Thomas Hospital, and
Dr. Swan. All of the defendants filed motions for summary
judgment. Mrs. Prince responded to the motions with three expert
1
Normal potassium levels are between 3.5 and 4.5.
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depositions. On 30 November 1994, the court entered a preliminary
order which overruled the motions, but which reserved the issue of
whether Mrs. Prince's conduct constituted fifty percent or more of
the fault in the case.
Defendants filed a joint memorandum renewing their summary
judgment motions, and Mrs. Prince responded. The parties orally
argued the issue of fault on 9 February 1996. The court held that
Mrs. Prince's percentage of fault was fifty percent or more and
granted summary judgment to defendants. Thereafter, Mrs. Prince
filed her notice of appeal.
II. Standard of Review
The sole issue on this appeal is whether the trial court erred
in granting the defendant's motion for summary judgment.
Tenn.R.Civ.P. 56.03 contains two requirements for
granting a summary judgment. First, there must be no
genuine issue with regard to the material facts relevant
to the claim or defense embodied in the motion. Second,
the moving party must be entitled to a judgment as a
matter of law based on the undisputed facts.
Pacific E. Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952
(Tenn. App. 1995)(citations omitted).
In determining whether or not a genuine issue of
material fact exists for purposes of summary judgment,
courts in this state have indicated that the question
should be considered in the same manner as a motion for
directed verdict made at the close of the plaintiff's
proof, i.e., the trial court must take the strongest
legitimate view of the evidence in favor of the nonmoving
party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. Then, if
there is a dispute as to any material fact, or any doubt
as to the conclusions to be drawn from that fact the
motion must be denied. The court is not to "weigh" the
evidence when evaluating a motion for summary judgment.
Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993)(citations omitted).
This court must use the same standard in reviewing a trial court's
judgment granting summary judgment.
Our standard of review, and that of the trial court, on
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a motions for summary judgment is the same: we must take
the strongest legitimate view of the evidence in favor of
the nonmoving party, allow all reasonable inferences in
their favor and discard all countervailing evidence. If
we determine that a dispute exists as to any material
fact or any doubt as to the conclusions to be drawn from
that fact, we must deny the motion.
Clifton v. Bass, 908 S.W.2d 205, 208 (Tenn. App. 1995)(citations
omitted).
III. Disputed Factual Issues
The trial court found "that reasonable minds could not differ
that Mary Alice Prince intentionally ingested a lethal dose of a
toxic substance knowing that the ingestion created an unreasonable
risk of harm." Our review of this record shows that the trial
court's finding takes assumptions or inferences to be undisputed
facts. We respectfully disagree.
A. Number of Pills Taken
The trial court found as an undisputed fact that Mrs. Prince
took a "lethal dose" of pills. The record, however, reveals that
Mrs. Prince could have taken as many as twenty to forty pills or as
few as six. Given the evidence, it is the opinion of this court
that either inference is reasonable.
The relevant evidence included the following. Dr. Swan
testified that he did not know whether Mrs. Prince had taken any
pills. He also testified that he obtained a history from both Mr.
and Mrs. Prince and that the estimate of twenty to forty pills
could have come from either of them. Given Mrs. Prince's
condition, it is reasonable to infer that Mr. Prince gave Dr. Swan
the estimate. Mr. Prince, however, was not present when Mrs.
Prince took the pills. The only thing Mrs. Prince told her husband
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in reference to the quantity of pills was that she had taken some
pills. Mr. Prince testified that he may have guessed at the
numbers based on the number of pills he saw in the bathroom and the
size of the bottle he found. When Mr. Prince entered the bathroom
he found pills "in the toilet, in the sink, in the floor . . . all
over the bathroom." In addition, Mr. Prince found a bottle in the
trash which he estimated to be two and one-half inches high by one
inch in diameter. It is reasonable to infer that with pills "in
the toilet, in the sink, in the floor . . . all over the bathroom"
the number actually taken was quite small. Also, Mr. Prince
testified that there were only a "half a dozen or so" pills in Mrs.
Prince's vomitus. Finally, Mr. Prince had threatened to leave
home. Given such a threat, it is reasonable to infer that the act
of taking the pills was a grandstand play intended to keep Mr.
Prince from leaving, not an attempt to commit suicide. Thus, the
evidence as to the number of pills taken is in dispute and is
subject to numerous inferences.
B. “Lethal Dose”
There is also a dispute as to whether the number of pills
taken by Mrs. Prince was a lethal dose. Assuming that Mrs. Prince
ingested twenty to forty pills, that the Vanderbilt Poison Control
Center correctly identified the pills as Caphedrine, and that each
pill contained 200 milligrams of caffeine, Mrs. Prince initially
ingested four to eight grams of caffeine. The experts, however, do
not agree as to whether this constitutes a lethal dose. Dr.
Richard S. Crampton, Mrs. Prince's expert, testified that the
lethal dose ranges from five to ten grams. In addition, Dr. Karl
J. Crossen, defendants' expert, testified that there is no
agreement as to the lethal dose. He testified as follows:
Q. Do you know what the lethal dose of caffeine
is?
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A. Depends on which text. I've seen it written
down as approximately ten grams.
The possibility that the dose was lethal is even less when one
considers that it is reasonable to conclude that Mrs. Prince took
only six pills. To explain, six pills contain only 1.2 grams of
caffeine. Thus, there is a dispute as to whether the number of
pills taken by Mrs. Prince was a lethal dose, and assuming that she
only took six pills, it is reasonable to infer that the dose was
not lethal.
C. Sequence of Events and Cause of Acute Event
There are other disputed factual issues related to the
precipitating cause of Mrs. Prince's permanent injuries. With
regard to the sequence of events at the time of Mrs. Prince's acute
event, defendants have attempted to establish that Mrs. Prince
suffered a seizure before going into ventricular fibrillation.
They use this theory to support their argument that the amount of
caffeine ingested was the primary agent in causing Mrs. Prince's
injuries. Dr. George Klein and Dr. George Podgorny, Mrs. Prince's
experts, both testified that the ventricular fibrillation preceded
the seizure.
There is also a dispute as to the cause of the acute event.
One theory, that of defendants, is that a caffeine overdose caused
the cardiac arrest. Mrs. Prince's theory is that hypokalemia, low
potassium, caused plaintiff's injuries. Both theories are
supported by expert testimony. Dr. Crossen testified that a
caffeine overdose without any secondary condition caused the
cardiac arrest. Both Dr. Podgorny and Dr. Klein testified that the
low potassium was the result of prolonged and copious vomiting.
The prolonged vomiting resulted from Mr. Prince giving Mrs. Prince
ipecac without water. We find nothing in the record to suggest
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that ingestion of caffeine or caffeine with ephedrine caused the
vomiting.
D. Standard of Care
Defendants also contend that because Mrs. Prince took the
pills she was likely to have been injured whether defendants were
negligent or not. Dr. Klein's testimony is clear, however, that if
neither defendants nor Mr. Prince had acted after Mrs. Prince took
the pills the caffeine would not have caused her injuries.
Defendants take the position that once Mrs. Prince took the pills
all that followed was inevitable. The record does not support this
assertion without dispute.
There is a material question of whether the failure of the
health care providers to properly deal with the consequences of the
prolonged and copious vomiting caused Mrs. Prince's injuries.
There is evidence that the defendants were negligent in their care
of Mrs. Prince and that Mrs. Prince would not have sustained
injuries had defendants complied with the standard of care. While
at St. Thomas, despite a history of drug overdose and copious
vomiting for a period of some four hours, Dr. Swan did not order an
IV to replace lost fluids, did not order antiemetics to stop the
vomiting, and did not order a drug screen or other lab tests such
as a blood count, a urinalysis, or a serum electrolyte. There is
evidence that the failure to order these tests or to order
antiemetics deviated from the accepted standards of medical care.
There is also evidence of a continued deviation from the acceptable
standards of medical care after Mrs. Prince left St. Thomas and Mr.
Prince took her to Edgefield Hospital.
E. Proximate Cause and Apportionment of Fault
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In the order granting summary judgment the trial court
referred to decisions of our supreme court. Specifically, the
court relied on Gray v. Ford Motor Company, 914 S.W.2d 464 (Tenn.
1996), for the proposition that the principles of comparative fault
apply to medical malpractice actions so that the fault of a patient
can be compared to the fault of the treating health care providers.
The first case in which the Tennessee Supreme Court approved the
application of comparative fault principles in medical malpractice
cases was Volz v. Ledes, 895 S.W.2d 677 (Tenn. 1995). In both
Gray and Volz, the determination of apportionment of fault was left
to the jury. Gray, 914 S.W.2d at 266; Volz, 895 S.W.2d at 677. We
find no fault with the trial court's conclusion that principles of
comparative fault are applicable in medical malpractice cases, but
we are of the opinion that the trial court erred in making this
comparison rather than having the jury do so. “In a jury case, the
issues of negligence and proximate cause are generally for the
jury. Such issues may be pre-empted by the Trial Judge only where
the evidence and reasonable inferences therefrom are so free of
conflict that all reasonable minds would agree with the decision of
the Trial Judge.” Husted v. Echols, 919 S.W.2d 43, 45 (Tenn. App.
1995). Such is not the case here.
The trial court in its judgment stated that "[i]n reaching
this conclusion, the Court has carefully considered the factors
that are relevant for determining the percentage of fault that
should be assigned to a party . . . ." One of the relevant factors
used when apportioning fault is "the relative closeness of the
causal relationship between the conduct of the defendant and the
injury to the plaintiff . . . ." Eaton v. McLain, 891 S.W.2d 587,
592 (Tenn. 1994). Here, there is a very real question of whether
Mrs. Prince's act of taking an unknown quantity of pills was the
proximate cause of her injuries. Mrs. Prince argues that the act
9
of making her take ipecac and the subsequent negligent treatment
combined to intervene between Mrs. Prince's act of taking some
pills and her final injuries. We do not think it is necessary to
consider the case from the perspective of "intervening cause." The
question is simple. Whose fault was more proximate? Most often,
this is a question of fact to be determined by a jury. Based on
the record and the reasonable inferences to be drawn therefrom, a
jury could conclude that defendants' fault was more proximate to
Mrs. Prince's injuries and that the act of Mrs. Prince was not
proximate at all.
In the majority of cases, the McIntyre v. Ballentine, 833
S.W.2d 52 (Tenn. 1992), comparison and allocation of fault issues
are properly left to the jury. The court in Eaton makes this
clear:
Under the pre-McIntyre fault system, the question
for the, trial court on a motion for directed
verdict/JNOV alleging contributory negligence was:
if, after taking the strongest legitimate view of
the evidence in the plaintiff's favor, could it be
determined beyond question that the plaintiff was
guilty of any negligence that proximately caused
the resulting injuries? If the answer to this
question was "yes," then a directed verdict was
proper. This situation was rare, however, for as
we emphasized in Frady v. Smith, 519 S.W.2d 584(Tenn. 1974):
Negligence, contributory negligence,
and proximate cause are ordinarily
issues to be decided by the jury, and
can be withdrawn from the jury and
decided by the court only in those
cases where the facts are established
by evidence free from conflict, and
the inference from the facts is so
certain that all reasonable men, in
the exercise of a free and impartial
judgment, must agree upon it.
This Court's adoption of the doctrine of
comparative fault in McIntyre does not change these
standards governing the trial court's assessment of
the evidence; nor does it change the established
standard governing the trial court's ultimate
decision of whether to grant the motion. The trial
court still must take the strongest legitimate view
of the evidence in favor of the non-movant; and it
must grant the motion only if reasonable minds
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could not differ as to the legal conclusion to be
drawn from that evidence.
Eaton, 891 S.W.2d at 590(citations omitted)(bold emphasis added).
The defendants assert and the trial court found that "as a
matter of law" Mrs. Prince's fault was at least fifty percent. In
defendants' view, if the court determines that Mrs. Prince's act
was intentional and that defendants' acts were negligent, the
analysis comes to an end. That is, defendants contend the finding
that one acted intentionally and the other negligently is
sufficient for the court to render judgment as a matter of law in
favor of the negligent party. We are of the opinion that a
comparison of supposed levels of conduct without determining
proximate cause is not presently the law in Tennessee. The
asserted level of fault of a party is a circumstance for the finder
of fact to consider when determining the percentage of fault of
each party in producing the injury. It is not a bar to recovery.
IV. Conclusion
A review of the record reveals there are numerous material
facts in dispute and that genuine doubt exists with regard to the
conclusions and inferences to be drawn from the facts. Reasonable
minds could conclude that Mrs. Prince did not intend to harm
herself, that the pills she took would not have caused her harm,
that her husband's act of making her take ipecac without water was
the act which caused the need for medical care, and that Mrs.
Prince would not have sustained any injuries had she received
proper medical care.
Therefore, it results that the judgment of the trial court
is reversed, and the case is remanded to the trial court for
further necessary proceedings. Cost on appeal are taxed to
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defendants/appellees.
__________________________________
SAMUEL L. LEWIS, J.
CONCUR:
_________________________________
HENRY F. TODD, P.J., M.S.
_________________________________
WILLIAM C. KOCH, JR., J.
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