454 N.W.2d 294 (Neb. 1990), 87-996, Denesia v. St. Elizabeth Community Health Center

Docket Nº:87-996.
Case Date:April 26, 1990
454 N.W.2d 294 (Neb. 1990)
235 Neb. 151
Donald DENESIA, Personal Representative of the Estate of Lucille Denesia, Deceased, Appellant,
ST. ELIZABETH COMMUNITY HEALTH CENTER, a Nebraska Corporation, et al., Appellees.
No. 87-996.
Supreme Court of Nebraska.
April 26, 1990
[Copyrighted Material Omitted]        Syllabus by the Court        1. Appeal and Error. Errors assigned but not argued will not be considered.        2. Jury Instructions: Proof: Appeal and Error. In order to establish reversible error upon a trial court's refusal to give a requested instruction, an appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction, (2) the tendered instruction is a correct statement of the law, and (3) the tendered instruction is warranted by the evidence.        3. Jury Instructions: Appeal and Error. All jury instructions given must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.        4. Jury Instructions: Appeal and Error. It is not error on the part of a trial court to refuse to give a requested instruction if the substance of the request is contained in the instructions actually given.        5. Jury Instructions: Proof: Appeal and Error. In order to establish reversible error upon a trial court's giving of a certain instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.        [235 Neb. 152] Denzel R. Busick, of Luebs, Dowding, Beltzer, Leininger, Smith & Busick, Grand Island, for appellant.        William M. Lamson, Jr., and Patricia A. Zieg, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee St. Elizabeth Community Health Center.        Fredric H. Kauffman and Sonya S. Ekart, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee Bare.        Walter E. Zink II and Gail S. Perry, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee Gard.        BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.        CAPORALE, Justice. I. INTRODUCTION        In this suit joining an action for the wrongful death of Lucille Denesia and an action on behalf of her estate, the plaintiff-appellant, Donald Denesia, personal representative of the aforesaid decedent's estate, appeals from the district court's judgment of dismissal entered pursuant to a verdict in favor of the defendants-appellees, St. Elizabeth Community Health Center, a hospital located in Lincoln, Nebraska, Orlando G. Bare, M.D., a general practitioner, and Joseph R. Gard, M.D., a cardiologist. The personal representative assigns a number of errors, including that the district court erred in its charge to the jury by refusing, on the one hand, to include certain instructions the personal representative requested and, on the other, by including certain improper instructions. That assignment having merit, we reverse the district court's judgment and remand for a new trial without consideration of the remaining assignments, which present issues unlikely to occur upon retrial. II. FACTS        Decedent, who was 64 years of age at the time, was admitted [235 Neb. 153] to the hospital on August 14, 1983, at approximately 1 a.m. because after she and her husband had retired to bed that night, she became lethargic, made slow and inappropriate responses, experienced weakness in her left side, was unable to move her left leg, and eventually became unable to be aroused. Bare, who was on hospital rotation for the medical group with which he practiced at the time decedent was admitted, became decedent's primary care physician.        He initially diagnosed decedent as having suffered a transient ischemic attack, or "TIA," which "means that some part of the brain's central nervous system is temporarily deprived of a blood supply and that can cause symptoms" which will normally diminish within a 24-hour period. He also determined that decedent had a history of "atrial fibrillation," an abnormality in the rhythm of the heart which creates a danger of blood clot formation. Bare sought the consultations of David Smith, M.D., a neurologist, for decedent's neurological condition and of Gard for decedent's heart condition.        The physicians concluded that decedent had suffered a stroke caused by an embolus of cardiac origin, rather than a TIA. At trial, the experts generally agreed that the embolus which caused decedent's stroke was produced by her atrial fibrillation. An embolic stroke occurs when an embolus, that is, a blood clot originating in a part of the body other than the brain, usually the heart, is transmitted to the brain, where it lodges in a blood vessel and severs the blood supply and thus the oxygen supply to that area of the brain, which as a result atrophies and dies. The area of the brain which dies is called an infarction. The physicians concluded that decedent did not suffer from a hemorrhagic stroke, which occurs when one of the blood vessels of the brain ruptures and a hemorrhage, or bleeding, results.        After consulting with Smith and Gard, Bare decided to anticoagulate decedent's blood, using two drugs, heparin and Coumadin. Anticoagulation therapy is used when a patient has suffered an embolic stroke so as to prevent further clots from developing and to prevent the release of clots which have already formed. Heparin reduces the clotting factor of blood, thus increasing the time it takes for blood to clot, but does not [235 Neb. 154] dissolve clots which have already formed. The use of heparin is inappropriate where a patient has suffered a hemorrhagic stroke because heparin may aggravate the bleeding.        According to Bare, Smith informed him that "there was a three-percent chance that using systemic anticoagulation Heparin therapy could exacerbate [decedent's condition] and turn it into a hemorrhagic [event, but that there was a] 14-percent risk ... that if ... she were not anticoagulated that within two weeks she would throw another clot to the brain." Bare discussed these risks with decedent and her family on the evening of August 16 and recommended the anticoagulation therapy.        The primary test used to monitor the dosage of heparin given to a patient is the partial thromboplastin time level, or "PTT," which determines the number of seconds it takes for the blood to clot. Prior to initiating the anticoagulation therapy, Bare determined that decedent's PTT values and blood count were normal, that she had an adequate number of platelets, and that she had no history of a bleeding problem. Several PTT's done prior to the initiation of the anticoagulation therapy revealed that decedent's blood took between 20 to 25 seconds to clot, and the desired therapeutic level of anticoagulation was between 40 to 50 seconds.        On August 17, Bare prescribed for decedent a 5,000-unit injection of heparin, to be followed by 25,000 units of heparin infused intravenously at the rate of 1,200 units per hour, and 10 milligrams of Coumadin by mouth. Bare further ordered that a PTT test be done on decedent's blood at 4 o'clock that afternoon and that the result of the test be called to him. The nurse on duty at the time gave decedent the 5,000-unit injection at around 12 o'clock noon and then started the intravenous infusion. The hospital laboratory withdrew blood from decedent at 4:05 p.m. and called the results of the PTT test to the nurses' station at 5:30 p.m. The test indicated that decedent's PTT was greater than 200 seconds, meaning that decedent's blood took longer than 200 seconds to clot.        The nurse then on duty, Cynthia Stewart, telephoned Bare's answering service at 5:30 p.m. in order to convey the PTT result, which Stewart recognized to have "an alert value," and [235 Neb. 155] left a message for Bare to return her call. Stewart testified that it was her practice to report anything of significance to the physicians who were caring for the patient. According to Bare, he was in an emergency situation at another hospital all day and into the night, and although he had a beeper with him, he was never contacted by his answering service in regard to Stewart's 5:30 p.m. call.        Decedent had been experiencing a headache throughout the day and was given aspirin per Bare's order. At 6:43 p.m., decedent's heart experienced 6 seconds of atrial beats with

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