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Zaverl v. Hanley2/14/2003
[No. 5665 - February 14, 2003]
I. INTRODUCTION
Margaret Zaverl's estate sued her surgeon and her pulmonologist, alleging that they negligently diagnosed and failed to treat her aortobronchial condition in 1994, causing her death. The jury returned a verdict for both physicians. At trial the surgeon testified over the estate's objection about matters his lawyer had instructed him not to address at his pre-trial deposition. Because it was error to permit this testimony at trial, we remand for a determination whether this error prejudiced the estate's claims against either physician. We vacate the award of costs and attorney's fees assessed against the individual beneficiaries of the estate, Margaret Zaverl's husband and children, because they were not parties. We affirm as to all other issues the estate raises on appeal.
II. FACTS AND PROCEEDINGS
Margaret Zaverl coughed up a significant quantity of blood on October 2, 1994. She was taken to Fairbanks Memorial Hospital where Dr. Eric Stirling, an emergency medicine specialist, examined her. She reported that she had coughed up and vomited bright red blood and that she experienced shortness of breath and wheezing. Her medical history included regular cigarette smoking, a left thoracotomy for coarctation of the aorta at age seventeen, and removal of an anaerobic tumor of the abdomen in early 1970. Margaret was forty-five years old in 1994.
Dr. Stirling consulted with Dr. James Borden, a surgeon. Dr. Borden performed a bronchoscopy which "showed an apparent tumor in the bronchus to the right middle lobe and right lower lobe." Dr. Borden could not remove the tumor during the bronchoscopy. The fiberoptic bronchoscope showed marked inflammation of the tracheal wall and blood clots. The right side of the bronchial tree appeared to be more inflamed than the left - a condition which Dr. Borden found to be consistent with the presence of the suspected tumor.
Dr. Borden consulted with a Fairbanks internist, Dr. Kenneth Starks. Chest X-rays revealed that infiltrates obscured the lower bases of Margaret's lungs. Dr. Borden admitted Margaret to the hospital's intensive care unit, made arrangements for a follow-up bronchoscopy, and arranged for her to see Dr. Owen Hanley, a pulmonologist, when Dr. Hanley returned to Fairbanks. Margaret underwent a variety of tests to determine the cause of her illness. Dr. Hanley saw Margaret on October 6. Dr. Hanley was unable to ascertain immediately the cause of her massive hemoptysis, and he recommended another bronchoscopy. Margaret was discharged on October 8. Dr. Hanley made arrangements for a follow-up visit in ten days to perform a computerized axial tomography (CAT or CT) scan once the infiltrates had cleared from Margaret's lungs.
When the doctors told Margaret that they were uncertain what was causing her bleeding, she asked if the bleeding could be related to her aorta repair. There was evidence that the doctors assured Margaret that the bleeding was not related to her aorta repair.
Margaret began to cough up blood again on the evening of October 9. Her family took her to Fairbanks Memorial Hospital. Margaret lost consciousness en route and died at the hospital soon after. Autopsy revealed that sections of the graft on her aorta had adhered to the pulmonary parenchyma; some of the tissue had died, leaving marked accumulation of blood in the pulmonary parenchyma directly adjacent to the aortal graft. The autopsy summary concluded that this accumulation "most likely represents the origin of the patient's severe hemoptysis."
Margaret's husband, William Zaverl, as personal representative of her estate, file
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