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Barber v. Constien8/4/1998
Appeal by plaintiff from judgment entered 2 November 1995 by Judge Joe Freeman Britt in Martin County Superior Court. Heard in the Court of Appeals 27 August 1997.
In this wrongful death action, the sole issue on appeal is whether the trial court properly charged the jury on intervening causation. Plaintiff contends, inter alia, that the court's instructions erroneously failed to reference the test of foreseeability. We agree and award plaintiff a new trial.
Pertinent facts and procedural history include the following: Plaintiff's wife, decedent Kathy Barber (Mrs. Barber), consulted defendant Dr. Daniel Constien (Dr. Constien), complaining of pain between her shoulder blades and nausea. After taking Mrs. Barber's history and conducting a physical examination, Dr. Constien diagnosed her condition as a flu-like viral syndrome. Dr. Constien directed his nurse to administer injections for nausea and for pain, and he wrote prescriptions for medication to address these symptoms. Mrs. Barber was instructed to return upon any significant worsening of her situation.
Late Sunday evening, it became necessary for plaintiff to take Mrs. Barber to the emergency room at Martin General Hospital (the hospital). Dr. Charles R. Merritt (Dr. Merritt) diagnosed Mrs. Barber's condition as pneumonia and directed that she be admitted. Dr. Merritt telephoned defendant Dr. Wan Soo Chung (Dr. Chung), a family practitioner on call for Dr. Constien, and advised him of this circumstance. Dr. Chung ordered administration of Phenegran and Demerol to Mrs. Barber for nausea and pain.
At 1:00 a.m. on Monday, Mrs. Barber was admitted to the hospital. Nurse Adeline Godard (Nurse Godard) noticed Mrs. Barber was still coughing and called Dr. Chung to request additional medication. Dr. Chung prescribed Nucofed, a codeine-based cough suppressant.
Nurses periodically observed Mrs. Barber throughout the night. At 4:00 a.m., she was discovered to be without vital signs and, despite attempts to resuscitate her, was pronounced dead at 4:20 a.m. Dr. Chung arrived at the hospital shortly thereafter.
Plaintiff filed the instant complaint 2 March 1994, naming Drs. Constien and Chung, Roanoke Family Medicine Associates, Coastal Emergency Physicians, P.A., J. E. Nicholson, M.D. and Dr. Merritt as defendants. Prior to trial, plaintiff voluntarily dismissed the claims against all defendants except Drs. Constien and Chung.
At trial, plaintiff's experts testified Drs. Constien and Chung failed to meet the applicable standard of care in their treatment of Mrs. Barber, and that the physicians' negligence proximately caused Mrs. Barber's death from respiratory failure. According to plaintiff's witnesses, Dr. Constien should have recognized from Mrs. Barber's vital signs that she had a more severe illness than the common flu, and he failed to order additional tests which would have saved her life. Dr. Chung was described as having been negligent in failing to order tests to determine Mrs. Barber's oxygenation level, such as arterial blood gases, failing to direct that she be given oxygen, failing to come to the hospital to examine Mrs. Barber, and finally ordering a combination of drugs which exacerbated Mrs. Barber's respiratory problems.
Defendants' witness Dr. M. G. F. Gilliland (Dr. Gilliland), the medical examiner who performed Mrs. Barber's autopsy, testified Mrs. Barber was afflicted with a viral infection which, coupled with an underlying vulnerable heart due to pre-existing scarring, predisposed her to a cardiac arrhythmia which in fact occurred, claiming her life. A cardiac arrhythmia is a disturbance in the rhythm patterns of the heart which cause the heart
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