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Wolbers v. Finley Hospital12/17/2003
Hospital appeals from judgment entered on jury verdict in medical malpractice action. AFFIRMED AS MODIFIED.
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.
Plaintiff's 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. Wolbers 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 endarterectomy 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 plaintiff's 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 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 t
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