Leazer v. Kiefer

821 P.2d 957, 120 Idaho 902, 1991 Ida. LEXIS 171

• Court: Idaho Supreme Court
• Decided: November 18, 1991
• Docket: 18685
• Status: Published

Opinions

McDEVITT, Justice.

The appellant, Richard Leazer, filed a medical malpractice action against the defendant, Dr. Kiefer. The appellant was 27 years old when he required surgery to correct a herniated disk. After the surgery was performed, the appellant lost all feeling in his lower extremities. Despite Dr. Kiefer’s efforts to correct this problem, the appellant was left paralyzed. In his complaint, the appellant alleged that Dr. Kiefer’s negligence caused him to become a permanent paraplegic.

The appellant’s back problems have been caused by a series of on-the-job injuries at the Amalgamated Sugar Factory in Twin Falls. Beginning in 1978, the appellant slipped on a wet floor and sprained his back. In 1980, the appellant fell approximately 8 feet from a rope onto the edge of a steel barrel. After the fall, the appellant complained of numbness and reduced movement in his legs for approximately 24 hours. While doing inventory in 1983, a fellow employee fell on top of him from a ladder. In 1984, he was lying on the floor helping pull a fellow employee out of a pit when his supervisor, who weighed 300-350 pounds, stepped on his back.

Surgery to remove a herniated disk was performed on October 16, 1984 (“the first operation”). Shortly after surgery, the appellant developed a hematoma on his nerve cords and also complained of paralysis of his legs, which required surgery to relieve the pressure (“the second operation”). The delay in removing the hematoma caused increased pressure on his nerves. Ultimately, the pressure irreparably damaged the appellant’s nerve cords and he is now permanently paralyzed, with loss of leg movement and bowel and bladder control. The appellant asserts that the delay was caused by Dr. Kiefer’s negligence in diagnosing the hematoma.

Dr. Kiefer offered various explanations for the delay: (1) he felt the paralysis was caused by hysteria; (2) Leazer suffered from a rare blood disorder that caused excessive bleeding preventing another operation; (3) he felt the appellant suffered from arachnoiditis (an inflammation of the membranes that protect the spinal column) or congenital spondylosis (a weak vertebrae); or (4) surgical retraction tools caused the paralysis. Dr. Kiefer offered these explanations in order to show the reasonableness of his actions. Although none of the above explanations proved to be the true cause of the paralysis, Dr. Kiefer testified that there were indications and symptoms to support these diagnoses.

After the first operation on October 16, 1984, the appellant complained of pain and numbness in his lower extremities. He denied the urge to void which required the use of a catheter. Dr. Kiefer’s notes and the nurse’s notes indicated that the appellant was unable to move his feet and was unable to detect stimuli. At times, the appellant showed some improvement, but overall his condition remained substantially the same until the time of the second operation on October 18.

Dr. Kiefer noted on the medical charts that the appellant was “paretic,” which Dr. Kiefer interprets to mean “weakness.” The day after the first operation, Dr. Kiefer noted that the appellant’s paralysis seemed to be the result of “hysterical response.” He offered nothing to explain this diagnosis, only that the appellant’s wife was very understanding of the problem of hysteria. The appellant’s condition varied, and on October 17, Dr. Kiefer ordered a neurologic consultation.

This neurologic consultation was performed by Dr. Wilson on October 18. Dr. Wilson suspected a problem with the cauda equina and recommended a CT Scan and also a Myelogram to determine if indeed there was a blockage of the spinal canal. These tests were performed the same day. They showed a possible blockage of the spinal column.

Within an hour of receiving the results, Dr. Kiefer performed the second operation, assisted by Dr. Cindrich. A hematoma was found and evacuated. Despite removing the hematoma, the appellant was left a paraplegic.

At issue in this appeal are the instructions given to the jury. Our standard of review requires us to determine whether the jury instructions as a whole, and not individually, fairly and accurately reflect the applicable law. Matter of Estate of Roll, 115 Idaho 797, 770 P.2d 806 (1989). If the jury instructions adequately present the issues and state the applicable law, no error is committed. McBride v. Ford Motor Co., 105 Idaho 753, 673 P.2d 55 (1983). To be considered reversible error, an instruction must have misled the jury or prejudiced the complaining party. Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985).

Appellants requested an instruction based on Idaho Jury Instruction 205 which reads as follows:

A physician or surgeon undertaking the treatment of a patient has a duty to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members of his profession in good standing, practicing in the community in which he provided such treatment or should have provided such treatment. It is further his duty to use reasonable care, skill and diligence and to use his best judgment in the exercise of his skill and the application of his learning.

Instead of this instruction, the court gave the following as Jury Instruction No. 12:

In performing professional services for a patient, a physician has the duty to have the degree of learning, skill, and qualifications ordinarily possessed by reputable physicians practicing in the same community, at the same time, and under similar circumstances.

A physician has a further duty to use the care and skill ordinarily exercised in like cases by reputable members of the profession practicing in the same community, at the same time, and under similar circumstances, and to use reasonable diligence and his or her best judgment in the exercise of skill and the application of learning and qualifications in an effort to accomplish the purpose for which the physician is employed.

If the physician holds himself out as a specialist in a particular field of medical, surgical, and other healing science, it also is his duty to have the knowledge, skill, and qualifications ordinarily possessed, and to use the care and skill ordinarily used, by reputable specialists practicing in the same field, in the same community, at the same time, and under similar circumstances.

A failure to fulfill the foregoing duty or standard of care is negligence.

A physician is not necessarily negligent because he errs in judgment or because his efforts prove unsuccessful. The physician is negligent only if the error in judgment or lack of success is due to a failure to perform any of his duties defined in these instructions.

Where there is more than one recognized method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all practitioners in good standing in the particular field of specialization, a physician is not negligent if, in exercising his best judgment, he selects one of the approved methods ■which later turns out to be a wrong selection or one not favored by certain other practitioners.

This instruction incorporates several instructions from the California Book of Approved Jury Instructions, commonly referred to as “BAJI.” Appellants take exception to the “best judgment” language of this instruction, although the instruction requested by the appellants also contained similar language. Both IDJI 205 and the jury instruction given apparently conflict with I.C. § 6-1012, which contains the standard of care for physicians in medical malpractice cases. Idaho Code § 6-1012 states:

6-1012. Proof of community standard of health care practice in malpractice case. — In any case, claim or action for damages due to injury to or death of any person, brought against any physician and surgeon or other provider of health care, including, without limitation, any dentist, physicians’ assistant, nurse practitioner, registered nurse, licensed practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing home, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, such claimant or plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning. Such individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any. If there be no other like provider in the community and the standard of practice is therefore indeterminable, evidence of such standard in similar Idaho communities at said time may be considered. As used in this act, the term “community” refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.

In LePelley v. Grefensen, 101 Idaho 422, 614 P.2d 962 (1980), this Court upheld the constitutionality of I.C. § 6-1012. Since that time, we have consistently held that I.C. § 6-1012 is the standard of care to be used in medical malpractice cases.¹

In Robertson v. Richards, 115 Idaho 628, 769 P.2d 505 (1987), the trial court refused to give an instruction based on IDJI 205. Instead, the trial court instructed the jury according to I.C. §§ 6-1012 and 6-1013. We upheld the trial court’s instructions by holding that I.C. § 6-1012 is the applicable standard of care in Idaho medical malpractice cases.

Idaho Jury Instruction 205 is based upon Davis v. Potter, 51 Idaho 81, 2 P.2d 318 (1931), and Swanson v. Wasson, 45 Idaho , 262 P. 147 (1927). The Davis court obtained the “best judgment” requirement from McAlinden v. St. Maries Hospital Assn., 28 Idaho 657, 156 P. 115 (1916). In passing the legislation creating § 6-1012 our legislature expressed a concern about maintaining the availability of medical malpractice insurance in the state so they created a more definable standard. 1976 Idaho Sess. Laws, ch. 277, § 1. By enacting this statute, the legislature replaced the applicable standard of care then in effect with a new standard. Pursuant to this new standard, Jury Instruction No. 12 inaccurately stated the applicable Idaho Law by incorporating “best judgment” in the standard of care for medical malpractice. The trial court erred in giving this instruction.

We also note that IDJI 205 appears to suffer from this same fatal flaw. The passage of I.C. § 6-1012 has required new jury instructions dealing with the standard of care. In order to avoid unnecessary confusion, we express our preference for the instructions we approved in Robertson v. Richards, 115 Idaho 628, 633 n. 4, 769 P.2d 505, 510 n. 4 (1989). These preferred instructions accurately state the standard of care pursuant to I.C. § 6-1012.

The appellant requested an instruction in substantially the form of IDJI 205 and had that instruction been given, the appellant could not now complain as it would have been invited error. McBride v. Ford Motor Co., 105 Idaho 753, 673 P.2d 55 (1983); Bell v. Joint School District No. 241, 94 Idaho 837, 499 P.2d 323 (1972); Hansen v. Howard O. Miller, Inc., 93 Idaho 314, 460 P.2d 739 (1969); Puget Sound Nat. Bank v. C.B. Lauch Const. Co., 73 Idaho 68, 245 P.2d 800 (1952). However, the court’s Instruction No. 12 goes well beyond that requested by the appellants and contained an erroneous standard of care.

Our next level of inquiry requires us to determine the effect of this error. We must determine whether the jury instructions, as a whole, adequately and correctly stated the law. Matter of Estate of Roll, 115 Idaho 797, 770 P.2d 806 (1989); McBride v. Ford Motor Co., 105 Idaho 753, 673 P.2d 55 (1983); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967).

Plaintiffs’ counsel strenuously objected to the last two paragraphs of Instruction No. 12. In registering his objection to the instruction, plaintiffs’ counsel stated:

From line 23 on [the fifth paragraph], however, I have grave consternation about the instruction because from that point on it begins to comment upon what judgment is and is not and is argumentative. That it begins to argue as to when a physician is negligent and when he is not.

It says he’s not necessarily negligent. Well, that isn’t accurate because he can be negligent. And whether he is necessarily or not necessarily or almost necessarily provides my argument, in that adjectives and adverbs are argumentative. They are expanders or contractors and are unnecessary.

I think it would be highly prejudicial because of the argument that can be made from the instruction by counsel. And that is this is simply an error or he used his best judgment. And if he used his best judgment, he can’t be negligent because he’s not necessarily negligent if he errs in his judgment.

They can argue that from the above instruction. In other words, you’ve already said he has to use reasonable diligence in line 11 and his or her best judgment in the skill, exercise of skill and the application of learning. That’s accurate and that does provide the exact language from IDJI 205. It’s the same sentence as ‘it is further to use his duty to use reasonable care, skill and diligence and to use his best judgment in the exercise of his skill and the application of his learning.’ So you have already advised on it. Counsel can comment and fair comment will include comments to the effect of what comes from line 23 down.

Plaintiffs’ counsel correctly envisioned the problem with this instruction. Defense counsel also saw the error and capitalized upon it in his closing argument. In addition to adding confusion, the two paragraphs in question misstated the standard of care and misguided the jury in determining negligence. The other instructions did not cure the error of Instruction No. 12. The only way to remedy the error is to remand for a new trial.

The decision of the Court of Appeals is vacated, and the district court decision is reversed and remanded for new trial.

Costs to appellant.

BISTLINE, JOHNSON and BOYLE, JJ„ concur.

1 . Gubler v. Boe, 120 Idaho 294, 815 P.2d 1034 (1991); Sherwood v. Carter, 119 Idaho 246, 805 P.2d 452 (1991); Hilden v. Ball, 117 Idaho 314, 787 P.2d 1122 (1989); Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989); Robertson v. Richards, 115 Idaho 628, 769 P.2d 505 (1989); Sparks v. St. Luke’s Reg. Medical Ctr., 115 Idaho 505, 768 P.2d 768 (1988); Dekker v. Magic Valley Reg. Med. Ctr., 115 Idaho 332, 766 P.2d 1213 (1988); Smallwood v. Dick, 114 Idaho 860, 761 P.2d 1212 (1988); Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988); Grimes v. Green, 113 Idaho 519, 746 P.2d 978 (1987); Buck v. St Clair, 108 Idaho 743, 702 P.2d 781 (1985); Maxwell v. Women’s Clinic, P.A., 102 Idaho 53, 625 P.2d 407 (1981).