Allman Ex Rel. Watters v. Holleman

Schroeder, C.J.,

dissenting: A review of the record on appeal discloses that sufficient evidence was presented at trial to properly submit the issue of Linda Allman’s alleged negligence, as set forth in Instruction No. 13, to the jury for comparison with the alleged fault of the defendants. The plaintiffs alleged Dr. Holleman and Dr. Mesina were negligent in failing to timely diagnose Ms. Allman’s condition and perform the necessary surgery, and Dr. Cotter was negligent in the manner in which he had reinserted the endotracheal tube after Ms. Allman had dislodged it. The majority opinion holds that submitting the issue of Linda Allman’s fault to the jury was error because there was no evidence of a causal connection between Ms. Allman’s death and taking Ovulen-21, her failure to give an accurate medical history or her failure to seek prompt medical attention; that it is not negligence for an intensive care patient to “inadvertently” remove life support equipment; and because the trial court made no distinction in the instruction between the wrongful death action and the claim for conscious pain and suffering.

The evidence is clear that Linda Allman was aware of the possible side effects from taking Ovulen-21. The symptoms which could result from taking the pill and which the package insert warned against included nausea,- vomiting, abdominal cramps and bloating, change in weight, rise in blood pressure, depression, headache and nervousness. Linda Allman experienced all of these symptoms for at least two weeks prior to being hospitalized, and yet continued to take the pills. The package insert also expressly warned that “the most serious known side effect is abnormal blood clotting.” The defendants’ expert witness testified that in his opinion the blood clotting which led to *790the ruptured spleen was caused by the taking of Ovulen-21. The plaintiffs’ expert witness testified the preliminary leaking from the spleen could have occurred several days to a couple of weeks prior to when Ms. Allman entered the hospital. He further testified that the delay in the diagnosis of the ruptured spleen allowed internal bleeding from the spleen to continue, the effect of which caused or contributed to the pulmonary problems developed by Ms. Allman following surgery. These pulmonary complications, which necessitated the endotracheal tube, eventually led to Ms. Allman’s death.

The undisputed evidence at trial established that Linda All-man had experienced severe chest pains and other symptoms for at least two weeks before seeing Dr. Holleman. She experienced additional pain and tenderness in her abdomen for four days prior to her visit to him. The plaintiffs’ own evidence established the critical relationship between the delay in the diagnosis of the ruptured spleen and the development of the pulmonary problems suffered by Ms. Allman. Whether or not Linda Allman departed from the standard of ordinary care by continuing to take Ovulen-21 after her symptoms arose or by delaying to seek medical attention for the chest pains and other symptoms was a question to be resolved by the jury. Sufficient evidence was presented of a causal connection between these acts and the condition ultimately causing Ms. Allman’s death from which the jury was entitled to conclude that had Linda Allman ceased to take the pills and sought medical treatment when she began experiencing symptoms of side effects two weeks earlier, her condition may not have deteriorated to the state to which it did and an earlier diagnosis may have resulted. Had it not been for the ruptured spleen, allegedly caused by the birth control pills, and the delay in diagnosis of the condition, the pulmonary edema necessitating the endotracheal tube would not have developed and Ms. Allman would not have died. To say there is no evidence of a causal connection between the immediate cause of death, the removal of the endotracheal tube, and the continued use of the pills and delay in seeking medical attention, ignores the testimony presented at trial establishing that each event was inextricably linked to the other and that the condition necessitating the tubes would not have developed in the absence of the ruptured spleen and delay in diagnosis. See Annot., Foreseeabi*791lity as an Element of Negligence and Proximate Cause, 100 A.L.R.2d 942; Annot., Proximate Cause in Malpractice Cases, 13 A.L.R.2d 11; PIK Civ. 2d 5.01 et seq.

The evidence presented at trial was also sufficient to submit to the jury the issue of Linda Allman’s fault in failing to give a complete and accurate medical history. The medical evidence established that a ruptured spleen is almost always the result of trauma. The defendants’ expert testified that a trauma precedes a ruptured spleen in 99% of the cases. Without a history of trauma, a physician would rule out a ruptured spleen. Linda Allman did not give a history of trauma to either Dr. Holleman or Dr. Mesina. This failure on the part of Linda Allman is evidence the jury was entitled to consider in light of the expert testimony.

A jury is entitled to draw all reasonable inferences of fact from the evidence. See, e.g., State v. Hutton, 232 Kan. 545, Syl. ¶ 4, 657 P.2d 567 (1983). Despite the lack of evidence that Linda Allman had, in fact, suffered a trauma which she failed to report, based upon the evidence presented the jury could have determined that the rupture of the spleen was caused by the Ovulen21 or by a trauma which Ms. Allman failed to report to her physicians. In either case, the evidence was sufficient to support a finding of comparative fault on the part of Linda Allman, and therefore was properly submitted to the jury.

The evidence was also sufficient to submit to the jury the issue of Linda Allman’s fault in dislodging the endotracheal tube, which was the immediate cause of death. There was testimony from attending nurses that the afternoon of her death Ms. Allman was struggling and pulling away from the tube, and was very restless. She was ultimately placed in restraints to prevent her from extubating herself. A nurse testified Ms. Allman was alert as late as 6:40 p.m. on the day of her death. Ms. Allman’s mother testified that when she visited her daughter between 6:55 and 7:05 p.m., shortly before the tube was dislodged for the second time, her daughter was conscious, the tube was in place, and the taping on the tube was secure.

The evidence was sufficient to submit this issue to the jury. The fact that evidence was presented which explained how the tube could have become dislodged without the fault of Linda Allman does not preclude the jury from considering the evidence which would attribute the cause of the event to her. The plain*792tiffs offered no evidence that Linda Allman’s mental state was in any way diminished or that she did not know what she was doing. It was for the jury to decide whether Linda Allman failed to exercise ordinary care under the circumstances.

■ The decision in this case requires the trial court to analyze the evidence and determine whether, in the court’s opinion, it substantially supports every claim of negligence asserted in the case before submitting the case to the jury with instructions. This places an impossible burden on the trial court and is contrary to established principles of law. In a comparative negligence case where many parties make numerous allegations of negligence against the various antagonists the trial of the case will be a nightmare for all concerned. It is the function of the jury to review and weigh all the evidence in the case and to determine whether or not the alleged conduct of the various parties amounts to negligence. .Where a jury verdict is attacked for insufficiency of the evidence the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below. Cantrell v. R. D. Werner Co., 226 Kan. 681, 684, 602 P.2d 1326 (1979). Furthermore, an instruction is properly given where there is any evidence in the record to support it. The evidence need not be direct, or conclusive or even convincing to support the submission. Moseman v. Penwell Undertaking Co., 151 Kan. 610, 100 P.2d 669 (1940); McKnight v. Building Co., 96 Kan. 118, 150 Pac. 542 (1915).

Contrary to these principles the majority opinion disregards evidence presented which, when viewed in the light most favorable to the defendants, supports the jury’s verdict. In doing so the majority relies in part on the rationale that the trial court erred in failing to differentiate in giving the comparative negligence instructions between the wrongful death action and the claim for conscious pain and suffering, as there was no causal connection between Linda Allman’s death and the taking of Ovulen-21, the delay in seeking medical attention or the failure to give an accurate medical history. As discussed above, how*793ever, evidence was presented establishing a causal connection between these events and Ms. Allman’s death. Notwithstanding this, under K.S.A. 60-251(fc), where no objection is made to an instruction before the jury retires to consider its verdict it becomes the law of the case unless clearly erroneous. See Black v. Don Schmid Motor, Inc., 232 Kan. 458, Syl. ¶ 7, 657 P.2d 517 (1983); Sieben v. Sieben, 231 Kan. 372, Syl. ¶ 5, 646 P.2d 1036 (1982). Counsel for the plaintiff objected to the instruction only upon the ground that there was no evidence to support the allegations of negligence on the part of Linda Allman. No objection was made to the form of the instruction, or that some of the claims of comparative negligence were relevant only to the claim for pain and suffering while others were relevant to the wrongful death action. This was the choice of counsel for the plaintiff and is a trial tactic employed by counsel which binds the plaintiff. The trial court is under no duty to give instructions on every possible theory of liability which are not requested by counsel. Aside from the claim of insufficient evidence there is no suggestion by any of the parties that the instruction was clearly erroneous. An instruction is clearly erroneous only when the reviewing court reaches the firm conviction that if the error had not occurred the jury would have returned a different verdict. Musil v. Hendrich, 6 Kan. App. 2d 196, Syl. ¶ 3, 627 P.2d 367 (1981). There is nothing in the record to suggest that had a distinction been made between the claims asserted by the plaintiffs in giving the instructions on Linda Allman’s comparative negligence the jury would have returned a different verdict.

The evidence of the financial resources available to the minor plaintiffs as a result of the previous death of their father was properly admitted by the trial court for several reasons. These resources were not generated by Linda Allman’s death, but were available to the minor plaintiffs independent of Linda Allman and were highly relevant to the issue of monetary loss sustained by the children as a result of the death of their mother. As discussed in the majority opinion, the plaintiffs in a wrongful death action are entitled to recover for the loss of “the reasonable expectation of pecuniary benefit from the continued life of the deceased, to be inferred from proof of assistance by way of money, services or other material benefits rendered prior to death.” Linda Allman had not been employed for several years *794prior to her death. The losses for which the children were to recover were not losses of financial support, but the value of services Linda Allman provided for her children. The evidence was clearly relevant to establish that the financial resources available for the children following their mother’s death were the same as they would have been had she lived.

The record reflects that throughout the course of the trial plaintiffs’ counsel commented on the children’s prior loss of the father. These comments undoubtedly were intended to create sympathy for the children in the minds of the jurors, as the fact of Mr. Allman’s prior death was hardly relevant to the plaintiffs’ present cause of action. The evidence of the minor plaintiffs’ financial support notwithstanding the death of Linda Allman insured that the jury verdict compensated the plaintiffs for the loss of only one parent, their mother, and not the previous loss of their father.

Furthermore, the comment elicited from Mr. Watters on direct examination by counsel for the plaintiff, that he had not attempted to adopt the Allman children because “it would interfere with their social security rights,” was in direct response to the question asked and was clearly designed to prejudice the jury in favor of the children by inferentially suggesting the' children were in a state of poverty. To rebut this false impression in the minds of the jurors counsel for the defense was entitled to make further inquiry on cross-examination into the area of financial support. Mr. Watters’ comment created an unfair inference that the social security benefits were so essential for the support of the children that it had precluded the Watters from adopting their grandchildren. The defendants were entitled to cross-examine Mr. Watters concerning financial resources available for the children to correct the misimpression that the social security benefits were the sole means of support. To ensure that the evidence of financial support was properly considered by the jury for the purpose for which it was offered the trial court instructed:

“You are not to consider the fact that these minor plaintiffs are the beneficiaries of their father’s estate nor the amount of any monies that may be in said estate. Any verdict that you render for the plaintiffs should not be reduced by virtue of the fact that these minor plaintiffs may receive benefits from their father’s estate.” (Instruction No. 17.)

*795The plaintiffs were not prejudiced by the admission of this evidence and the jury was properly instructed.

Accordingly, it is respectfully submitted the judgment of the learned trial judge should be affirmed.