Fehling v. Levitan

382 N.W.2d 901, 1986 Minn. App. LEXIS 4057
CourtCourt of Appeals of Minnesota
DecidedMarch 4, 1986
DocketC6-85-331
StatusPublished
Cited by1 cases

This text of 382 N.W.2d 901 (Fehling v. Levitan) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fehling v. Levitan, 382 N.W.2d 901, 1986 Minn. App. LEXIS 4057 (Mich. Ct. App. 1986).

Opinions

OPINION

LANSING, Judge.

The heirs of Robert Fehling brought this medical malpractice action against Dr. Alexander Levitan and Unity Hospital for negligently causing Fehling’s death. The jury found by special verdict that the defendants were negligent but that their negligence did not cause Fehling’s death. On appeal the plaintiffs argue the jury instruction on causation was erroneous and the special verdict is irreconcilable. We affirm.

FACTS

Robert Fehling was 33 years old when he became ill in April 1980. He went to see his physician, Dr. Levitan, on April 30 and complained of fever, cough, chills, and aching muscles. Dr. Levitan ordered a chest x-ray and prescribed an antibiotic to treat what he diagnosed as viral bronchitis.

The next morning Fehling went to the emergency room at Unity Hospital. He was vomiting and had a rash. His pulse and respiration were rapid. He was sweating heavily, short of breath, and extremely apprehensive. His blood pressure readings in the emergency room were 78/0 and 50/0. Dr. Levitan saw Fehling and admitted him to the hospital to observe what Levitan considered to be an allergic reaction to the antibiotic. The chest x-ray taken the day before was considered normal by the radiologist who interpreted it.

Fehling’s symptoms worsened during the day. The nursing staff called Dr. Delfín Cruz, a house physician for Unity Hospital, to evaluate Fehling. Cruz ordered an electrocardiogram, which showed an electrical disturbance called right bundle branch block. Cruz conferred with a pulmonary specialist and ordered Fehling transferred to the coronary care unit (CCU). Later that evening Dr. Levitan transferred Fehl-ing out of the CCU and back to the floor. A chest x-ray taken that day, in contrast to the normal x-ray the previous day, showed extensive infiltration of Fehling’s lungs. Levitan changed his diagnosis to viral bron-chopneumonia.

The next day, May 2, Fehling continued to be acutely short of breath. Dr. John Carlson, another Unity house physician, evaluated Fehling that night and asked the nursing staff to order a test for arterial blood gases. The nurses sought permission from Levitan, who refused the request. Levitan testified that he had or[903]*903dered the test earlier, but canceled it because technicians were unable to obtain an arterial blood sample. Fehling, a weight lifter, had heavily muscled arms that made it difficult to reach the artery.

At about 8:30 a.m. on May 3, Robert Fehling died. His parents testified that they repeatedly requested treatment for his worsening condition but that their pleas for help were ignored. They also testified that the efforts to resuscitate their son were haphazard. An autopsy performed that day showed that Fehling died of acute viral myocarditis (an infection of his heart muscle) and congestive heart failure.

The plaintiffs’ experts at trial testified that Fehling was seriously ill and going into shock when he went to the emergency room on May 1. Charles Pexa, M.D., the director of emergency medicine at North Memorial Hospital, testified that Levitan was negligent in failing to admit Fehling directly to the CCU, in failing to obtain the test for arterial blood gases, and in later removing Fehling from the CCU. Raymond Scallen, M.D., the medical director of the CCU at Abbott-Northwestern Hospital in Minneapolis, testified that both Levitan and Unity Hospital negligently cared for Fehling.

The crucial issue at trial was whether Fehling would have survived the illness even if he had received the best possible medical care. The experts all agreed that there is no “cure” for viral myocarditis and that the only treatment is supportive care to allow the body’s immune defenses time to combat the virus. Dr. Pexa testified that if treated properly, Fehling may have survived the myocarditis. Dr. Scallen testified that Fehling’s chances of survival were high.

In contrast, the defense experts testified that the virus had damaged so much of Fehling’s heart by the time he sought treatment that there was virtually no chance he would have survived. Drs. Cruz and Carlson, the house physicians who disagreed with Levitan’s treatment of Fehl-ing, testified that no medical care would have prevented Fehling’s death. Pathologist Richard Lynch of Unity Hospital, who performed the autopsy, testified that 50 percent of Fehling’s heart muscle was dead and Fehling could not have survived. Steven Long, M.D., the chief of medicine at Unity when Fehling was there, testified that Fehling would have died even if he had been directly admitted to the CCU.

The principal defense witness was Jesse Edwards, M.D. Edwards is an internationally recognized pathologist at the University of Minnesota Medical School who has written hundreds of professional articles and numerous pathology textbooks, many of them on cardiac pathology. Edwards analogized the virus to a tornado, saying it swept through Fehling’s heart muscle one to two weeks before he died. He testified there was no evidence of ongoing disease and the extensive damage to Fehling’s heart occurred five to 13 days before he was admitted to the hospital. In Edwards’ opinion, Fehling was admitted in the end stage of the disease and had no chance of survival without a heart transplant, which was unlikely because Fehling didn’t have time to wait for a donor.

The trial court gave the following causation instruction:

In Question # 2 you are asked to consider whether such negligence that you may have found as to Dr. Levitan was a direct cause of the death of Robert Fehl-ing, Jr., and in Question #4 whether such negligence that you may have found as to Unity Hospital was a direct cause of his death.
A direct cause is a cause which had a substantial part in bringing about the death of Robert Fehling, Jr., either immediately or through happenings which follow one after another, and without which cause the death would not have occurred. Before you can find that negligent conduct was a direct cause of the death of Robert Fehling, Jr., you must find that his death would not have occurred when it did on May 3, 1980, but for the negligent conduct, and that such negligent conduct played a [904]*904substantial part in bringing about the death.
Question #’s 2 and 4, should you reach them, do not call upon you to determine whether negligent conduct was the sole cause of death, but rather whether such negligent conduct was a direct cause of death. There may be more than one direct cause of death, as I have explained that term. When the effects of negligent conduct of a person or persons and of a force of nature actively work at substantially the same time to cause a death, each may be a direct cause of death.

(Emphasis added). This instruction modified the standard “substantial factor” instruction by adding the “but for” causation test. See JIG II, 140 G-S. The plaintiffs objected to the modified instruction.

The jury found that Levitan and Unity Hospital were negligent but that their negligence was not a direct cause of Fehling’s death. The jury assessed damages at $1 million.

ISSUES

1. Was the causation instruction preju-dicially erroneous?

2. Are the special verdict answers inconsistent?

ANALYSIS

I

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fehling v. Levitan
382 N.W.2d 901 (Court of Appeals of Minnesota, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
382 N.W.2d 901, 1986 Minn. App. LEXIS 4057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fehling-v-levitan-minnctapp-1986.