*1 Defendant Ogden confessed to the
charge, after which questioned Afuvai him REISER, By Elizabeth Irene Through Washington about burglary. Terrace guardian, Reiser, Richard E. Rich Thereafter, defendant confessed burgla- Reiser, Reiser, ard E. and Eleanor Plain ry and having admitted package left the Appellants, tiffs and garbage bin. The officer conceded that v. voice, he may have raised his but the atmo- Francis, Richard LOHNER and Howard sphere peaceful and there were no Doctors, Medical and Provo Obstetrical threats. Defendant at no time made any Clinic, Gynecology Inc., a Profes effort stop talking burglary. about the corporation, sional Defendants and Re The defendant disputed some of the offi- spondents. cer’s testimony and said Afuvai threatened him by saying, causing “You’re me to lose No. 16444. my composure.” later, About a week de- Supreme Court of Utah. again fendant confessed to officer Jensen of Washington police Terrace force. Jan.
In the disputed facts, above scenario of
the trial court held that defendant suffi-
ciently was rights advised of his Miranda being questioned,
before that he understood rights
such and voluntarily submitted to
questioning. The court also held that de-
fendant confessed any promise without
any kind exchange therefor and did so
without any undue influence or threat. appeal defendant’s brief on re
cites facts only favorable to the defendant’s promise
contention of and/or intimidation.
Not once was a reference made to the rec support
ord to the recitation of facts. This
circumstance also justify this Court
in a refusal to review the case.2 event, affirmance is dictated
by accepted principles appellate review
which favor the correctness of decisions of
the arbiter of the facts where based
substantial, competent evidence.
Affirmed.
STEWART, J., concurs in the result. Dinsdale, Lepasiotes Utah *2 Howard, Provo, plaintiffs and for
Jackson appellants. Williams, Hanni, Rex J. R.
Glenn C. Scott Hanson, City, Lake for defendants Salt respondents.
HALL, Chief Justice: the dis- appeal judgment Plaintiffs verdict, court, trict based on alleged medical recovery them denied malpractice.
Defendants Reiser was reluctant Richard Lohner and Howard have labor induced if there were another princi- are medical and the alternative. Francis doctors Dr. Lohner explained then that an pal officers and amnio- directors defendant centesis performed could be to more accu- Clinic, Gynecology Obstetrical Provo rately determine the status of the fetus. (hereafter “clinic”). Plaintiff Inc. Eleanor He also usual risks in- Reiser treated at the clinic in 1964and sticking volved in such a included pregnant Dr. Francis while *3 the fetus with inducing the needle and in- fourth and her fifth children. Inasmuch as fection within uterus. the sensitized,1 Mrs. Reiser was Rh Dr. Francis agreed that an amniocentesis was a suitable determined to induce to labor deliver her alternative to induced labor. child at 38 pregnancy fifth weeks of so as to possible minimize the adverse effects there- prepared Mrs. proce- Reiser was for the That of. was also indicated since by dure a patient nurse who asked the to lie emotionally Reiser physically Mrs. was and on a table in the examination room. After effaced, minutes, in, upset, and the cervix was soft and a few Dr. came Lohner took the patient’s pressure performed and which made conditions blood the favorable induc- thereupon amniocentesis. Dr. Lohner left tion. Mrs. Reiser in the care of the nurse. Mrs. again Reiser pregnant Mrs. became was she Reiser asked how felt and she 1970. pregnancy pro- late As this sixth responded “I by saying, feel fine.” The gressed, Dr. Mrs. Francis saw Reiser on glass nurse then obtained for Mrs. Reiser a time, By several occasions. this defendants of water from the As Mrs. lab. Reiser was developed system had for seeing rotation raising water, up to drink the she became patients. (at On June the 38th exclaimed, quite pale and “Don’t let me pregnancy), week of Lohner Dr. saw Mrs. fall.” The'nurse Mrs. Reiser and reassured Reiser for the and first time learned that called for another nurse assist. One of During she was Rh sensitive. the course of get smelling the nurses then went salts examination, test per- a titer while stayed the other with Mrs. Reiser. formed.2 The test results received on thereafter, Immediately approximately 26, 1971, significant June revealed m., 11:30 a. Dr. Lohner came in and exam- titer. Finding pulse, ined Mrs. Reiser. no Dr. Lohner Reiser called Mrs. and asked diagnosis doctor made the of cardiac arrest come to the clinic discuss the and started his resuscitative efforts. He options arrival, available. he ex- On her “big thump” gave Mrs. Reiser a on the plained severely the fetus be in- chest, airway, began established an volved with the problem Rh and that induc- mouth-to-mouth resuscitation5 and closed- vagi- tion be the solution. safest A massage. cardiac An ambulance chest nal examination revealed conditions called, accompanied and Dr. Lohner for induction were not favorable inasmuch hospital, they to the where arrived at Reiser Also, as the cervix was thick firm. 11:40 a. m. Reiser, sensitivity development procedure, 1. Rh is the This antibod- as to Mrs. negative requires probe ies an Rh mother which occurs at of a needle insertion and the delivery positive sample time first Rh extraction of fluid from the amniotic baby. present manner, baby’s The antibodies are thereafter sac. In this involvement babies, positive by actually quantita- future affect Rh with the tively. Rh factor can measured crossing placental attaching barrier and fetus, themselves to cells the red blood ultimately causing testified, although destruction those cells. 4. The doctor so it was never patient’s on record. indicated sample titer
2. The test is an evaluation of a Mrs. Reiser’s blood. It measures the level of The to mouth-to-mouth resus- doctor resorted mother, sensitivity Rh get but does not nec- citation when he was unable to a mechani- essarily indicate status or involvement of the (ambubag) adequately cal seal around device fetus. patient’s mouth. nose and damage liability issues of to Eliz- diagnosed suffering Mrs. Reiser was as from fibrillation.6 After the ventricular jury were tried to a on November 14 abeth heartbeat was stabilized electric shock 21, 1977, through Judge pre- Sorensen treatment, directly adrenalin was shot into siding. When the was unable to reach strengthen heart Mrs. Reiser’s so as to verdict, Judge declared a mistrial. heartbeat. disqualified him- Judge Sorensen thereafter Judge assigned and the case was self evening, Late that Mrs. Reiser com- Thereafter, Sawaya. Judge Sawaya James menced labor. Plaintiff Elizabeth Reiser morning was born the next at 4:27 a. m. in limine. granted also defendants’ motion baby was born with severe brain dam- January The second trial commenced on age diagnosed suffering as and was later 1979. A focal concern at trial was what palsy spastic quadriple- from cerebral experts caused the cardiac arrest. Various gia, indisputably all of which was testified at trial the cardiac arrest anoxia.7 could have been the result of one or more of *4 following: supine hypotension syn- the complaint May was filed on drome; depression syndrome;9 vasovagal sought damages The first cause of action embolism;10 personal injuries allergic for amniotic reaction to by suffered Mrs. Reis- er; anesthetic;11 the sought xylocaine, spon- second cause of action dam- the local ages personal injuries for by suffered Eliza- stoppage taneous of the heart. After six beth; sought and the third cause of action trial, days of the returned a verdict of damages par- for emotional distress of the against plaintiffs. This no cause of action 16, 1976, ents. January Judge On Allen appeal followed. granted Sorensen defendants’ motion for
summary judgment plaintiffs’ as to appeal, plaintiffs first first contend On and third causes of action. The court granting ruled in de that the trial court erred applicable the statute of limitations granting in limine. In the fendants’ motion Reiser, against any by had run claims Mrs. motion, plaintiffs the trial court directed recognize negli- and that Utah does not a present or seek to have “not to ... admit gence solely claim for emotional distress. relating . . to the fact ted . evidence preserved questions court the of liabili- antibody reading that an titer was not tak ty damage to Elizabeth on the basis by plaintiff’s en the defendants on the that the statute of limitations did not run 24, 1971, prior mother to June and that an during the minority. child’s procedure performed amniocentesis was not by plaintiff’s the defendants on the mother trial, November, 1977, Prior to in defend- prior theory June 1971.” The of such ants made a motion in limine to exclude ruling sensitivity a is that Rh did not cause evidence that a titer test was not taken 24, 1971, negligence until June the nor was an that the doctors’ amniocen- tesis diagnosing treating sensitivity, to June in the if granted 1971. The trial court any, prejudicial the motion. is potentially irrelevant and type activity 6. Fibrillation is a of abnormal muscular is due of This condition to excessive (cranial vagi extending throughout contraction of the heart where the constituent the nerves together separate- muscle ly, body). generally by apprehen- fibers do not act but the It is caused chaotic, produces beating. (e.g., ineffectual coupled puncture) sion with an “insult” asystole, This is to be contrasted with body. by pres- which is in the sure, It is marked a fall blood stoppage total of the heart. pallor, sweating, anxiety. pulse, slow oxygen 7. A lack of to the infant’s brain which pieces A10. condition in which of tissue from resulted from the cardiac arrest. lodged parts the amniotic in of fluid are various body through mother’s blood stream. pregnant 8. This in condition women is caused by depression by of the vena cava vein 11. Administered to the skin where the needle uterus, together with insufficient collateral cir- in is inserted. to be used the amniocentesis slowing culation which tends to have a effect on the heart. diagnosis in evidence as negligence to the rela- of such sensi- determination tion to the harm suffered. tivity appears to therefore without rele- coupled vance.13 this is with When alleged negli- Plaintiffs claim this potential prejudicial effect such evidence gence respect to the titer test and might jury, have had the trial is amniocentesis crucial to their cause of judge was well within his to ex- discretion They action. that the assert cardiac arrest clude it.14 supine syndrome was hypotension and that to Mrs. on her Reiser back appeal Plaintiffs’ second contention on is for any when she was 38 weeks submitting special court erred pregnant negligence. was for But defend- jury. verdict to the The special verdict properly ants’ failure diagnose the Rh following (1) questions: form asked the five (so sensitivity goes argument), plaintiff Lohner, defendant, negligent Was Richard never would have had to lie on her back for allowing Mrs. Reiser to lie on her back
the belatedly conducted amniocentesis. (2) period If your excessive time? trial, At defendants answered such con- yes, negligence answer 1 is no. was such ways. tentions in several Their evidence proximate damage cause was to the effect that the cardiac arrest (3) plaintiff? to the defendant Was the supine hypotension syn- not caused Richard Lohner acts and drome. They pointed to the fact that there efforts utilized or utilized to resuscitate is no known syndrome leading case during was uncon- Reiser time she attack; heart very indeed the nature of the your yes, scious? If answer to no. syndrome is such that when the vena cava proximate cause such *5 is depressed uterus, sufficiently by the a damage the or to plaintiff? the body reflex the causes mother to move so as your questions If answers to 1 and 2 are Furthermore, to depression. relieve the questions yes, or or yes, and 4 are the they pointed previ- out that Mrs. Reiser had yes, the above are questions answer to all of ously given children, birth to five other following you ques- then are answer the that as a woman bears her body children plaintiff’s damages? tion: the What are develops carry collateral circulation to the questions jury The answered “no” blood back to the heart vena when the cava complain special and 3. the Plaintiffs depressed. (and is Finally important- most verdict the improperly narrowed issues ly), that, they offered on the evidence facts jury negligence. which the could find presented, it not negligence to allow Procedure, period Mrs. Reiser on 49(a), to be her back for a of Rule Rules of Utah Civil time less ten part, than minutes.12 There was provides, pertinent in as follows: that, likelihood, evidence in all Mrs. Reiser may require jury to return a court reasonably on her could have been back only form of a special a verdict in the sleeping, during vaginal pre-na- while a or special finding upon issue of written each tal or many examination other reasons. may submit fact. In that event the court interrogatories to the sus- jury written judge trial was within bounds of the ceptible categorical brief of or other an- (or his authority when he excluded the tests swer or thereof) may lack submit written forms pertaining sensitivity. to Rh might It is undisputed sensitivity special findings that Rh several was not injury, pleadings cause of and any properly the child’s be made under the Evidence, infra, 45(b), provides jury specifically 12. As 14.Rule Rules Utah of may judge found that allowing Lohner Dr. was not in exclude his discretion stay Mrs. Reiser to back probative on her for an value is evidence if he finds that its substantially outweighed by period excessive of time. risk that its danger of un- admission will create substantial 13. Relevant is evidence defined Rule Utah prejudice confusing issues or due or Evidence, having any Rules of tendency as “evidence Safeway misleading jury. See Martin v. prove disprove in reason to or Utah, Stores, Inc., any existence of material fact.” trial, evidence; following At the court made the com- may or it use such other submitting re- method the issues and ment:
quiring
findings
the written
thereon as it
problem,
THE
I can’t see this
COURT:
appropriate.
deems most
sorry,
you argue
I’m
no matter how
it.
consistently
This Court has
held
Okay.
Informed consent.
She should
“special
clearly
that the use of a
verdict” is
have been told there was risk
involved
left
the sound discretion of
trial
procedure
she underwent on June
presented,
court.15 On the facts
we cannot
that,
Beyond
why
26th.
she
say that the
its
At
court abused
discretion.
they
doing
they
to be told
it because
trial, plaintiffs’
basic claim of
didn’t do it on
occasions? That
was that defendant should never have al
make sense to me at all.
doesn’t
lowed Mrs. Reiser to lie on her back for
simply
Informed consent
means that she
procedure,
stage
preg
at such late
in her
has to know all the risks involved in the
nancy. Defendants were also accused of
procedure she is about to undertake.
negligence in the
treatment of
Now, having
prior procedures
failed to do
arrest,
wit,
after the cardiac
her resusci
nothing
has
to do with whether or not she
Although
supple
tation.
there were other
going
happen
is informed of what’s
raised,
mental
issues
the court was within
procedure.
with this
special
its discretion to submit the
verdict
jury.
to the
general
It is the settled
rule that
emergency
in the absence of an
or unantici
appeal
Plaintiffs’ third contention on
conditions,
pated
physician
must first ob
failing
give
the trial court
erred
patient
tain the consent of the
before treat
to the
the issue of informed consent.
ing
operating
physician
on him.16 The
They assert
that Mrs.
should have
Reiser
patient
must inform
all
substantial
been advised that an amniocentesis is never
occur;
significant
might
risks which
performed at 38 weeks
there was
yet
patient
every
he need not advise the
hypotensive syndrome
vasovagal
risk of
Also,
though
even
conceivable risk.17
syndrome. Furthermore,
they
that in
claim
defective,
informed consent
the re
infant,
involving
an unborn
proximately
sultant
must have been
informed consent must be obtained from
*6
by
procedure
administered.18
parents,
only
both
from the mother.
case, plaintiffs’
In
instant
contention
apparently
The trial court
believed that
presented
on the facts
there was no viable
at
trial was that
the cardiac arrest was
issue of
jus-
lying
informed consent which would
caused Mrs. Reiser
on her back for
tify
giving
jury
period
instructions thereon.
jury
an excessive
of time.19 The
Page
patient
Compa-
be shown that a
v. Utah Home Fire Insurance
would have consented
ny,
257,
(1964);
anyway,
15 Utah 2d
cases
has
Plaintiffs’
final
fourth and
contention on
hypo-
enced
cardiac arrest
a result of
as
appeal is that the trial court erred in sum-
syndrome.
tension
ap-
It would therefore
marily dismissing plaintiffs’ first and third
pear
plaintiffs
failed in
have
their bur-
causes of action.
cause,
of proving proximate
den
which obvi-
(personal
The
of action
first cause
a discussion of
ates
informed consent.
Reiser)
to Mrs.
was dismissed for
failure to
Assuming, arguendo,
proximate
comply
with the statute of limita
shown,
nevertheless,
applicable
has been
tions.
at the
cause
the in
statute22
time
given
provided
formed consent
in the
this suit was filed
instant case
the action
adequate.
proceeding
years
was
Before
must be filed within “two
after the
amniocentesis,
of injury
plain
Dr. Lohner
date
or two
after
years
to Mrs.
discovers,
Reiser the
complications
through
usual
tiff
or
the use of
risks
reason
normally
amniocentesis,
diligence,
associated with
able
should have discovered the
including
possibilities
injury,
of sticking the
whichever occurs later.” The cardi
26,1971,
fetus with the
ac arrest
inducing
needle and
infec
occurred on June
and the
within
May
tion
the uterus. The
lawsuit was filed on
nearly
believable tes
1974—
timony
experts
years
offered
cause
by the
at trial
three
later. This
of action was
(such
hypotension
properly
untimely.
that other risks
as
therefore
held to be
vasovagal syndrome)
only
were not
mini
exception
Ballinger23
of Foil v.
mal, but also unforeseeable.
applicable
is not
here. Mrs. Reiser knew or
legal
should
known she had suffered a
Plaintiffs also contend that the fa
on June
1971. She
told that
ther,
mother,
as well as the
should have
memory,
her loss of
balance and visual
concerning
been consulted
the amniocentes
problems were all a direct result of the
procedure.
For
the same reasons
Nevertheless, plaintiffs
cardiac arrest.
con
supra, this contention must also fail. Fur
that they
tend
were entitled to a
trial
thermore, where a married woman is in full
U.C.A., 1953,
on the issue under
78-12-47.
possession
faculties,
of her
she alone has the
provides,
pertinent
statute
part,
Said
as
power to
surgical procedures
submit
follows:
general
herself.20 This
applies
rule
any
against
physician
action
...
if
involving
cases
pregnancy and childbirth.21
responsive pleading
of the defendant
concept
expressed
This
is explicitly
in our
pleads
that the action is barred
this
present statute:
limitations, and if
party
statute of
either
The following persons are authorized and
court,
so moves the
issue raised there-
empowered
consent
health care
*7
by may
separately
any
be
before
tried
prohibited
not
(f)
...
any
law:
female
issues in
tried.
the case are
regardless
age
status,
of her
or marital
when
preg-
permits
indepen-
connection with her
The statute
an
therefore
nancy
is,
or childbirth.
trial on
issue.
It
dent
the limitation
trial,
See,
Vandevander,
e.g., Murray
colloquy
21.
Later
v.
the further
ensued:
Okla.
App.,
(1974), Rosenberg
Feigin,
THE COURT:
...
I
not
will
submit as a
101 gence an the holds that the to rule in informed manner on mo- tortfeasor take must tion to exclude evidence of Mrs. Reiser’s he his victim as finds him and the prior during pregnancy. her treatment proxi tortfeasor held responsible for present, order shall read: “Plaintiff not injuries mately though caused even exacer present, attempt to or seek to have admit- by bated a condition of the victim not ted, bring any way attempt or in to before known to the tortfeasor. Brittis v. Freem jury, directly indirectly, any the or evidence on, 348, Colo.App. 34 (1974). following relating (a) to the facts: that an pertinent not inquiry is whether the antibody reading by titer not taken the particular actual harm sustained was of a 1971; prior 24, ... defendants to June and expected, but kind which was rather wheth (b) that an amniocentesis was not general the harm fell within of er the field performed by prior the defendants ... to State, danger plaintiff. to v. 71 Adams 26, June 1971.” 414, (1967). 429 Although Wash.2d P.2d 109 negligence recognizable danger involves a proffered following proof: Plaintiff the apparent, apparent, which should be Roche, Dr. Banner and plaintiffs’ Dr. ex- position, in re one defendant’s it is not perts, would have testified that the failure quired that should fore a defendant 24, perform 1971, a titer to June particular injury, seen the the exact extent performance single and the of a first and harm, precise the or the of manner in 26,1971, depar- on amniocentesis June were Allen, it occurred. Endresen 574 Wyo., v. acceptable tures practice from medical (1978). P.2d 1219 A defendant such failure had a causal connection with justify negligence ground on a the injuries the by sustained Dr. Elizabeth. result, gen that, particular although within the Banner would have be- also testified created, scope the risk be eral of has not pressure cause of the low on blood evident fore occurred. June failure monitor vital signs perform- on 26 June at the time of the allege proffered evi- Plaintiffs that the departure ance of the amniocentesis was a negligent of dence treatment leads to causally from medical standards and was placement conclusion that the of Mrs. Reis- injurious per- to the connected results since supine position during in er unneces- forming stage an amniocentesis at that in sary pro- potentially dangerous medical pressure with the pregnancy patient’s blood inju- proximate cause of cedure was the at a low very aggravate level would ry. putting Mrs. The contention is that Dr. situation. Banner would have also tes- position dangerous Reiser in that tified that the to be from benefit derived stage pregnancy, of and led to a condition single compared amniocentesis with the hypotensive supine syndrome, known as risk surely involved was so small that it was stages women their late condition which perform an amniocentesis un- may develop. also pregnancy of Plaintiffs der those circumstances. led to Mrs. Reiser’s cardiac claim that this produced causing physician duty
A
has
arrest which
the anoxia
exercise
degree
damage.
care
brain
Whether
proper
and skill considered
the infant’s
injuries
damages
incurred
accepted
correct
suffered
standards
profession.
Eason,
proximate
result of the
Forrest v.
123 Utah
(1953).
clearly
a factual issue
physician
P.2d 178
If the
fails
treatment was
Tel.
jury.
v. Mountain
legal duty
exercise that
Jensen
States
care
Co., Utah,
(1980). In
particular,
he is
all dam-
and Tel.
P.2d
liable
tort for
evidence,
de-
ages
injuries
excluding
the trial court
proximately
Grizzle,
plaintiffs
right
their
to a
trial.
wrongful
Wyo.,
act.
v.
625 nied
Harris
Schweizer,
(1981);
Belk
N.C.
finding
argues
jury’s
Defendant
S.E.2d
negligent in allow-
that Dr. Lohner was not
for a
ing
stay
her back
Once a defendant fails to exercise the
on
care,
requisite degree
negli-
long period
during
time
the amniocentes-
the law
*9
Furthermore,
consent
the issue of lack of
plaintiffs’
link in
destroys
is
the critical
seriously prejudiced by the exclu-
was also
alleged chain of causation and renders acts
evidence. Uninformed
plaintiffs’
sion of
point irrelevant.
of defendants
to that
procedure is tanta-
consent
to a medical
begs
juryA
can
argument
the issue.
State,
all. Dale v.
to no consent at
mount
neg
as to
proper
not make a
determination
(1974).
N.Y.Supp.2d 485
A.D.2d
to evaluate the
ligence unless it is allowed
evidence,
it not been exclud-
had
Plaintiffs’
gained
expected to be
reasonably
benefits
great
upon the
ed,
have cast
doubt
procedure versus the
from a
medical
any
bene-
advisability of the
subjected as a
patient
risks to which a
is
The nature of
gained
fit
be
therefrom.
procedure. Negligence occurs
result of that
Mrs.
apparent
made
the risk was never
danger
gravity
when the
and likelihood
give
in-
her to
an
Reiser so as to enable
outweigh
utility of the conduct. Wei
Macfarlane,
Ficklin v.
formed consent. See
General, Inc.,
rum v. RKO
Cal.3d
Utah,
If in fact
P.2d 435
who rary
shortly
side effects discovered
after
does
grounds
not know or have reasonable
26,
Rather,
June
seeking
she is
dam
knowing
injury
for
that a known
permanent
ages for a
and severe
an
injury,
negligence,
unknown
the two-
of
injury which she was not aware accord
year
of
malpractice
ing
statute
limitations for a
affidavit until June of 1972.
run,
Yates,
begin
Dupler
251,
action does not
Balling-
Foil v.
Neither
v.
10 Utah 2d
er,
P.2d 624
supra. Simple
nor the cases cited
injury
of an
awareness
majority
therein and referred to in
might
have been an unavoidable conse-
opinion justify
plain
the conclusion that
treatment,
quence of the medical
or the
tiff’s affidavit failed to establish an issue of
cause,
tempo-
result of some other
or even a
principles
fact. Basic
of civil
treatment,
rary side
of
effect
is not tanta-
provide
party opposing
a motion
knowledge
mount to
injury
summary judgment
is entitled to the
of improper
the result
treatment. As stat-
inferences,
benefit of all favorable
Durn
ed in
v. Ballinger, supra,
Foil
at 147:
Utah,
Margetts,
v.
ham
disability dysfunction, there understanding
the untutored of the aver-
age layman, no apparent connection be- provided
tween the treatment by physi- cian and the suffered. Even if PEARSON, Adriana Cornelia aka Jane is, may passed there it off as an una- Pearson, Appellant, Plaintiff and voidable side effect or a side effect that pass will [Emphasis with time. added.] PEARSON, Lee Defendant Kimber In Mrs. Reiser’s opposition affidavit in Respondent. summary judgment, an not affidavit referred majority opinion, she No. 17094.
stated that she was unaware of the extent Supreme Court Utah. June, of the suffered until 5, 1982. Jan. that she a physician’s had been under care consequence for the trauma suffered as a arrest; however,
the cardiac she was physician permanency
advised