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Marsingill v. O'Malley11/22/2002
[No. 5643 - November 22, 2002]
I. INTRODUCTION
One night several months after having stomach surgery, Vicki Marsingill called her surgeon, Dr. James O'Malley, complaining of abdominal pain and nausea. Dr. O'Malley advised Marsingill to go to the emergency room and offered to meet her there, but Marsingill said she felt better and declined to go. Several hours later, Marsingill lost consciousness from an intestinal blockage and suffered permanent injuries. Marsingill sued Dr. O'Malley, claiming that he lacked the skill and knowledge to advise her properly and that the information he gave her over the telephone did not allow her to make an intelligent treatment decision. A jury rejected these claims. The main issues on appeal are whether the trial court erred in excluding evidence of Dr. O'Malley's failure to pass tests for board certification as a surgeon and whether the jury instructions correctly described the standard for deciding whether Dr. O'Malley gave Marsingill adequate information. We find no abuse of discretion in the court's rulings excluding evidence but hold that the jury should have been instructed to use the reasonable patient standard to decide if Dr. O'Malley gave Marsingill sufficient information about her condition and treatment choices.
II. FACTS AND PROCEEDINGS
In October 1994 Dr. O'Malley performed surgery to remove staples that another surgeon had previously placed in Vicki Marsingill's stomach to facilitate weight loss. By January 1995 Marsingill had recovered from the surgery and was cleared to return to work.
While dining out with a friend on the evening of February 14, 1995, Marsingill "suffered a sudden onset of illness, was in pain, felt nauseous, and was unable to eat, so [went] home." Her pain worsened over the next few hours, and she eventually asked her daughter to call Dr. O'Malley. Her daughter told Dr. O'Malley that Marsingill looked bad, that she was nauseous and in pain, that she was unable to burp or have a bowel movement, and that her stomach was "as hard as a rock." Dr. O'Malley then spoke directly with Marsingill, who sounded anxious and upset. She informed him that she was having abdominal pain, felt bloated, and could not burp. Dr. O'Malley advised Marsingill that he could not evaluate her over the phone but that "if she felt bad enough to call him at night" she should go the emergency room. He repeated this advice several times but did not venture any opinion about the cause of Marsingill's symptoms or tell her that her condition was potentially life-threatening or serious. He left it up to her whether to seek emergency room treatment.
When Marsingill asked what would happen at the emergency room, Dr. O'Malley informed her that the doctors there would probably take x-rays and insert a nasogastric tube to relieve the pressure in her stomach. Dr. O'Malley knew that Marsingill had previously had nasogastric tubes inserted and, like most patients, strongly disliked them. Soon after hearing that she would likely need to have a nasogastric tube inserted if she went to the emergency room, Marsingill ended the call, telling Dr. O'Malley that she thought that she could burp and was feeling better.
After hanging up, Marsingill told her daughter that she was feeling better and would try to "tough it out for awhile." But later that night Marsingill's husband found her unconscious on the bathroom floor. Paramedics rushed her to the hospital, where an emergency operation later revealed that she had experienced an intestinal blockage. But by then the obstruction had caused Marsingill to go into shock; as a result, she suffered brain damage and partial paralysis.
Marsingi
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