Wolbers v. the Finley Hosp.

673 N.W.2d 728, 2003 Iowa Sup. LEXIS 230, 2003 WL 22957192
CourtSupreme Court of Iowa
DecidedDecember 17, 2003
Docket02-1041
StatusPublished
Cited by18 cases

This text of 673 N.W.2d 728 (Wolbers v. the Finley Hosp.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolbers v. the Finley Hosp., 673 N.W.2d 728, 2003 Iowa Sup. LEXIS 230, 2003 WL 22957192 (iowa 2003).

Opinion

CARTER, Justice.

The Finley Hospital (the hospital) appeals from a judgment on a jury verdict in favor of Phyllis Wolbers, the personal representative of Samuel Wolbers, deceased. At least ten assignments of error are presented for our review. We separately consider each one and, except for a modification of the interest on the judgment, find no basis for reversing the judgment of the district court.

Plaintiffs decedent, Samuel Wolbers, sought medical attention from Dr. Joseph Jenkins of Dubuque Surgery, P.C. on May 5, 1997. After assessing Mr. Wolbers’ medical condition, Dr. Jenkins scheduled him for a surgical procedure called a carotid endarterectomy on May 16, 1997. Wol-bers was admitted into the hospital operated by defendant hospital on May 15, 1997, in preparation for the surgical procedure.

Wolbers, who was a heavy smoker, was instructed to discontinue all smoking prior to the surgery. In defiance of those instructions, he continued smoking up until the time he entered the hospital. On May 16, Dr. Jenkins performed the carotid en-darterectomy as planned. While Wolbers was recovering from the procedure, he had a small stroke. Dr. Jenkins performed a second surgical procedure on him in response to the stroke. He was then moved to intensive care for recovery.

After being transferred to a regular nursing unit on May 18, he began experiencing difficulties breathing. He notified nursing and respiratory therapy staff of the problem. His complaints were documented in his hospital chart and called to the attention of Dr. Webb, an emergency-room physician employed by the hospital. The code blue chart' noted that he was bluish in color, indicating a lack of oxygen in'his blood. Dr. Webb attempted to open Wolbers’ air passages by intubation, but was unsuccessful because of the extent of the blockage. The emergency-room staff also utilized an Ambu bag to increase oxygen intake. Dr. Webb did not seek surgical intervention to alleviate the problem. The hospital staff failed to notify Dr. Jenkins of Wolbers’ respiratory difficulties until the early morning hours of May 19. After various attempts to remedy his breathing complications, Wolbers died on May 19,1997.

Plaintiff, individually and as executor of the estate of her deceased husband, filed an action for wrongful death against the hospital. She later filed a motion to amend the petition to add a claim for lost chance of survival on May 23, 2000. On May 17, 2002, the jury returned a verdict in favor of plaintiff for damages totaling $364,000. Additional facts will be discussed below as relevant.

I. Whether the District Court Erred in Failing to Instruct the Jury on the Issue of Comparative Fault.

The hospital asserts that, because there was substantial evidence presented to support a finding of causal fault attributable to plaintiffs decedent, the issue of comparative fault was erroneously withheld from the jury. We review issues concerning the failure to submit a comparative-fault defense for correction of errors at law. DeMoss v. Hamilton, 644 N.W.2d 302, 305 (Iowa 2002).

Parties are entitled to have their legal theories submitted to the jury when *732 the instructions expressing those theories correctly state the law, have application to the case, and are not otherwise covered in other instructions. Vasconez v. Mills, 651 N.W.2d 48, 52 (Iowa 2002). Proposed instructions must be supported by. the pleadings and substantial evidence in the record. Id. Evidence is substantial if a reasonable person would accept it as adequate to reach a conclusion. Id.

We addressed the applicability of comparative negligence in wrongful-death cases in DeMoss, 644 N.W.2d at 305-07. We concluded that in order for comparative negligence to be applicable in a medical malpractice action:

[A] patient’s negligence must have been an active and efficient contributing cause of the injury, must have cooperated with the negligence of the malpracti-tioner, must have entered into proximate causation of the injury, and must have been an element in the transaction on which the malpractice is based. Accordingly, in a medical malpractice action, the defense of contributory negligence is inapplicable when a patient’s conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim or when the patient’s conduct contributes to an illness or condition for which the patient seeks the medical attention, care or treatment on which a subsequent medical malpractice claim is based.

Id. at 306.

In Fritts v. McKinne, 934 P.2d 371 (Okla.Ct.App.1996), a case relied on in De-Moss, the patient had been seriously injured in a single-car accident, and all of his major facial bones had been broken. Fritts, 934 P.2d at 372. Five days after the accident, an oral surgeon was scheduled to perform facial repairs, and the defendant doctor was to assist by performing a tracheostomy. Id. The doctor cut or ruptured the innominate artery during the tracheostomy. Id. The patient lost a large amount of blood, failed to regain consciousness, and died three days later. Id. at 373.

The doctor in Fritts argued that the patient’s innominate artery was found up in his neck area, when normally it should have been in his chest, complicating the procedure. Id. The doctor further argued that the patient was injured while driving drunk or while riding in a vehicle driven by another intoxicated person. Id. The appellate court held that a comparative-fault instruction was not warranted. Id. at 374. The court stated:

Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded.

Id. (citing Martin v. Reed, 200 Ga.App. 775, 409 S.E.2d 874, 877 (1991)).

We also discussed several other cases in DeMoss in which a patient’s “negligence” was not relevant to later medical malpractice claims. These include: Matthews v. Williford, 318 So.2d 480, 483 (Fla.Dist.Ct.App.1975) (patient’s failure to follow advice to quit smoking following heart attack ten years earlier too remote to support comparative-fault instruction); Van Vacter v. Hierholzer, 865 S.W.2d 355, 360 (Mo.Ct.App.1993) (reversal warranted when comparative-fault instruction invited jury to apportion fault based on conduct not proximately causing death); Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178

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673 N.W.2d 728, 2003 Iowa Sup. LEXIS 230, 2003 WL 22957192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolbers-v-the-finley-hosp-iowa-2003.