Hall v. Hilbun

466 So.2d 856 (1985)

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Nature of the Case

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Facts

Terry was admitted to the hospital complaining of abdominal discomfort. Dr. Ward, her physician, requested d, a general surgeon, to enter the case for consultation. Examination suggested that the discomfort and illness were probably caused by an obstruction of the small bowel. D recommended an exploratory laparotomy. D performed the surgery about noon on May 20, 1978. Terry was moved to a recovery room at 1:35 p.m., where D remained in attendance with her until about 2:50 p.m. Terry was alert and communicating with him. All vital signs were stable. She was then moved to a private room. P stated that his wife complained of pain at about 9:00 p.m. and was given morphine for relief, after which she fell asleep. P observed that his wife had difficulty in breathing which he reported to the nurses. P was told that his wife was all right and that such breathing was not unusual following surgery. The labored breathing then subsided for an hour or more. Terry awakened and again complained of pain in her abdomen and requested a sedative, which was administered following which she fell asleep. She experienced further difficulty in breathing, and P reported this, too. Again, a nurse told P that such was normal, that patients sometimes make a lot of noise after surgery. She was having a real hard problem breathing and she was turning pale or a bluish color. P went to screaming. D was called and came to the hospital immediately only to find his patient had expired. The cause of the death was subsequently determined to be adult respiratory distress syndrome (cardio-respiratory failure). P sued for wrongful death. D testified that he was not contacted by the nursing staff or others concerning Terry’s condition during the afternoon or evening of May 20 following surgery, or the early morning hours of May 21, although the exhibits introduced at trial disclose fluctuations in the vital signs late in the evening of May 20 and more so, in the early morning hours of May 21. Dr. Hilbun's next contact with his patient came when he was called by Glenn Hall about 4:55 or 5:00 that morning. By then it was too late. D was called by a member of the nursing staff concerning a patient who was in a room adjoining but D was not advised of Terry’s condition and apparently he did not inquire. The autopsy also disclosed that a laparotomy sponge had been left in her abdominal cavity. The sponge did not contribute to the death. P called Dr. S. O. Hoerr, a retired surgeon of Cleveland, Ohio, as an expert witness. Dr. Hoerr is a cum laude graduate of the Harvard Medical School, enjoys the respect of his peers, and has had many years of surgical practice. Dr. Hoerr testified to the national standard of care but had no information as to any local standards of care. Dr. David Peter Lango Sachs was also offered as an expert witness and he too was unfamiliar with the standard of care in Pascagoula, Mississippi. D moved for a directed verdict on the obvious grounds that, the testimony of Drs. Hoerr and Sachs having been excluded, and that P had failed to present a legally sufficient quantum of evidence to establish a prima facie case. The Circuit Court granted the motion and on July 17, 1981, final judgment was entered in favor of D. It was affirmed. P appealed.