Howlett v. Greenberg

539 P.2d 491
Colorado Court of Appeals·Decided June 17, 1975·No. 72-224A·Published·Cited by 1 cases

Opinion

539 P.2d 491 (1975)

Mary Ann HOWLETT, surviving spouse of Decedent Louis U. Howlett, Plaintiff,
v.
David GREENBERG, Defendant-Appellee,
Lynn Gonzales (Nee Howlett), Conservatrix of the Estate of Terry Lu Howlett, a mental incompetent, and Lynn Gonzales (Nee Howlett), Individually, Intervenors-Appellants.

No. 72-224A.

Colorado Court of Appeals, Div. III.

June 17, 1975.
Rehearing Denied July 22, 1975.
Certiorari Denied September 15, 1975.

*492 Robert W. Hansen, Denver, for defendant-appellee.

Charles A. Friedman, Hochstadt, Straw & Davis, P. C., Jordan Hochstadt, Denver, for intervenors-appellants.

Not Selected for Official Publication.

RULAND, Judge.

Intervenor Lynn Gonzales individually and as conservatrix of the estate of her sister, Terry Lu Howlett, a mental incompetent, appeals from a judgment entered upon a jury verdict for defendant Dr. David Greenberg in a wrongful death action. In a previous appeal this court granted intervenors, children of decedent, the right to pursue an appeal after plaintiff, Mary Ann Howlett, elected not to do so. Howlett v. Greenberg, 34 Colo.App. 356, 530 P. 2d 1285 (cert. granted on other grounds). We reverse and remand the cause for a new trial.

This action was initiated by plaintiff as surviving spouse against Dr. Greenberg, an orthopedic surgeon, and others not involved in this appeal, alleging that Greenberg's negligent medical practices caused the death of the decedent. The following facts essentially are not disputed.

As a result of injuries sustained in an automobile accident, on the morning of May 8, 1970, decedent was taken to the emergency room of Beth Israel Hospital. Upon his arrival a physical examination, which included examination of the abdomen, chest, extremities, and palpation of the spine, was performed by a staff physician and Greenberg. A history was obtained which disclosed that decedent had been injured in an automobile accident, was suffering pain in the knee and wrist, and had an allergy to penicillin. X-rays were taken, and Greenberg determined that decedent had suffered fractures of the right leg and wrist. He applied a cast to decedent's leg and inserted a traction pin in the wrist fracture. In addition to medication for pain, the staff doctor prescribed vistaril every four to six hours as needed for nausea. Decedent was then admitted to the hospital, and routine laboratory work was performed.

Greenberg testified that he visited decedent several times on May 8 and on the morning of May 9. Early on May 9, he determined that a non-emergency surgical procedure on decedent's wrist would be required, and he scheduled surgery for 11 a. m.

The rules and regulations of Beth Israel Hospital require, insofar as pertinent here, that a complete history and physical examination be performed within 24 hours after admission of a patient, and further, that no surgery other than emergency surgery may be performed unless the report of the history and physical is attached to the patient's chart.

Sometime during the evening of May 8, pursuant to hospital procedure, a staff physician performed a physical examination *493 and obtained a medical history from decedent. Such histories and physicals were routinely dictated by the physicians and transcribed by the Medical Records Department and incorporated into a patient's medical record. In the case of decedent, the history and physical report was not attached to decedent's chart at the time he was operated on on the morning of May 9. Further, the pre-operative checklist on the front of the chart indicated that no history and physical report was attached.

In the report, the examining physician noted that the decedent was nauseated, possibly due to medication. Greenberg did not know the contents of the report, and he made a notation on the chart to the effect that no history and physical had apparently been done.

At the time of the planned surgical procedure, decedent received a "rapid induction" of sodium pentothal (for sleep) and was given anectine (a muscle relaxant) by a certified registered nurse anesthetist in the presence of Greenberg. During the course of the induction, decedent regurgitated approximately 4,000 cubic centimeters of a dark fluid and aspirated some of this material into his lungs. Consequently, a tracheostomy (opening in the windpipe) was performed by a thoracic (chest) surgeon. Procedures were also followed by Greenberg to repair the wrist fracture.

Decedent developed pneumonia precipitated by the tracheal aspiration. The immediate cause of death, on May 19, 1970, was pneumonia.

Intervenors allege error in the trial court's ruling as to the force and effect of the pre-trial order, instructions given the jury, and admissibility of answers to a hypothetical question posed by counsel for Greenberg.

I. Pre-trial Order

Intervenors contend that trial court erred in not directing a verdict for plaintiff based upon "stipulations" adopted by the pre-trial order.

In her pre-trial statement, plaintiff listed numerous allegations of fact as "proposed stipulations" which tended to establish that Greenberg was negligent in his treatment of decedent. Conversely, Greenberg's pre-trial statement reflected that the issue of his negligence was disputed. We have no record of the proceedings at the pre-trial conference. Subsequent thereto counsel for one of the parties filed a document agreeing to some of the proposed stipulations in plaintiff's pre-trial statement and objecting to others. No similar document was filed by Greenberg.

The pre-trial order was apparently prepared by counsel for plaintiff, pursuant to instructions of the trial court. The court subsequently acknowledged that it did not review the order before signing it. The pre-trial order recites that Greenberg, inter alia, "agree[s] and stipulate[s] to the Proposed Stipulations set forth in plaintiff's Pre-Trial Memorandum previously filed with this Court in that no objections were filed within the time prescribed by Order of the Court at the pre-trial conference."

Prior to trial, plaintiff filed a motion requesting that Greenberg be enjoined from presenting evidence in opposition to the "stipulations." Following arguments of counsel, the court determined that Greenberg was not bound by the "stipulations" because there was no showing that his attorney had ever executed a document reflecting that he agreed to the "stipulations."

Intervenors contend that it was error for the trial court to modify the pre-trial order in this fashion absent a finding of "manifest injustice" pursuant to C.R.C.P. 16(c). Relative to this contention, both parties rely on alleged facts and documents as to the sequence of events at and following the pre-trial conference which are not part of the record on appeal. Absent a record to the contrary, we must assume that the trial court did not intend that counsel be bound by the "stipulations" without formal written consent thereto, and that the contrary provision in the pre-trial order did not *494 properly reflect the trial court's intent in this regard. See Laessig v. May D & F, 157 Colo. 260, 402 P.2d 183; see also Miller v. East Denver Municipal Irrigation District, 83 Colo. 406, 266 P. 211.

II. Jury Instructions Relative To Vicarious Liability

Relative to Greenberg's liability, the jury was instructed on a physician's standard of care and the implied warranty of skill. See

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