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Vincent v. Fairbanks Memorial Hospital (10/29/93), 862 P 2d 847
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ELAINE VINCENT, by her legal )
guardian, TIM STATON, )
Appellant, ) Supreme Court No. S-4553
v. ) Superior Court No.
) 4FA-89-01029 CIVIL
FAIRBANKS MEMORIAL HOSPITAL, )
and LUTHERAN HOSPITALS AND ) O P I N I O N
HOMES SOCIETY OF AMERICA, )
Appellees. ) [No. 4017, October 29, 1993]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Mary E. Greene, Judge.
Appearances: L. Ames Luce, Dan A.
Hensley, Luce & Hensley, Anchorage, for
Appellant. Howard A. Lazar, Delaney, Wiles,
Hayes, Reitman & Brubaker, Inc., Anchorage,
Before: Rabinowitz, Chief Justice,
Burke, Matthews, and Compton, Justices.
[Moore, Justice, not participating.]
RABINOWITZ, Chief Justice.
BURKE, Justice, dissenting.
In this appeal, we must determine if the superior
court's causation instruction constituted prejudicial error.
FACTS & PROCEEDINGS
On December 11, 1988, at 6:14 a.m., Elaine Vincent
(Vincent) was admitted to the emergency room at Fairbanks
Memorial Hospital (FMH), for treatment of severe abdominal cramps
which were accompanied by vomiting and diarrhea. Vincent was
attended to by Kathy Stevens, RN, who took a history and assessed
Vincent's condition. Nurse Stevens later testified that Vincent
appeared to need fluids, but that her condition did not seem
Dr. Richard Foutch was the emergency room physician who
was on duty. He ordered several blood tests, the administration
of Compazine to stop Vincent's vomiting, and an intravenous
transfusion of two liters of saline solution. The Compazine was
administered at 6:50 a.m. The IV transfusion began at
approximately 7:00 a.m.
Dr. Foutch went off duty at 7:00 a.m., and was replaced
by Dr. Steven McCormick. At that time, Dr. Foutch informed Dr.
McCormick that lab work and an IV transfusion had been initiated.
Dr. Foutch and Dr. McCormick briefly discussed possible causes
for Vincent's symptoms, including gastroenteritis, food
poisoning, or an exacerbation of her ulcers.
At approximately 7:25 a.m. Dr. McCormick received
Vincent's electrolyte levels from the laboratory. Based on this
information, as well as his subsequent examination of Vincent,
which included taking her pulse, Dr. McCormick thought that she
was stable. He ordered the addition of potassium to her IV
fluids, a series of X-rays, and the intravenous administration of
Mepergan, which is a combination of Demerol and Phenergan. The
Mepergan was administered by Nurse Billy Mitchell at 7:37 a.m.
After administering the Mepergan, Nurse Mitchell left Vincent's
room. When he returned, a brief period of time later, Vincent
began convulsing in what Mitchell described as "some kind of
seizure activity." Vincent subsequently experienced cardiac
arrest. As a consequence she sustained permanent, debilitating
Vincent alleged that this injury was caused by the FMH
emergency room staff's failure to diagnose and treat her extreme
fluid loss, a condition known as "hypovolemia" (hypo = low;
volemia = volume). She argued that she was the victim of a
series of negligent medical acts committed by Nurse Stevens,
Nurse Mitchell, and Dr. McCormick.2
FMH argued that it had not been negligent.
Additionally, FMH argued that Vincent possessed a unique
physiology which had caused her to react abnormally, independent
of treatment, to both her condition and to the hospital's care.
Specifically, at trial, FMH elicited testimony from Dr. Nancy
Lewis, a member of an expert advisory panel appointed pursuant to
AS 09.55.536,3 who stated that, left untreated, Vincent's
condition would have resulted in death.4 FMH also established,
through the testimony of Dr. Peggy Goldman, that "there must --
must have been something kind of funny going on . . . I mean, I
can guess at it and I have my own particular ideas about what
might have happened or why she was really so sick and nobody
could see that or whatever." Additionally, FMH introduced
testimony of a toxicologist, Dr. Randall Basalt, that Vincent had
experienced a rare allergic reaction to the Mepergan. FMH argued
that it should not be held responsible for the fact that Vincent
Vincent proposed a multiple cause jury instruction
I will now define "legal cause"for
you. A legal cause of injury or damage is a
cause which is a substantial factor in
bringing about the injury or damage.
This does not mean that the law
recognizes only one legal cause of an injury
or damage, consisting of only one factor or
thing, or the conduct of only one person. On
the contrary, many factors or things, or the
conduct of two or more persons may operate at
the same time, either independently or
together, to cause injury; and in such case
each may be a legal cause.
FMH's proposed causation instruction provided:
A legal cause of damage is a cause
which is a substantial factor in bringing
about the damage.
An act or failure to act is a
substantial factor in bringing about damage
if it is more likely true than not true that:
1. the act or failure to act was
so important in bringing about the damage
that a reasonable person would regard it as a
cause and attach responsibility to it; and
2. the damage would not have
occurred but for the act or failure to act.
Vincent objected to FMH's proposed instruction and
contended that the "but for"instruction was inapplicable for two
reasons: first, that she had alleged negligence by several
nurses and doctors at the hospital; and second, that FMH had
alleged in its pleadings both "that multiple causes contributed
to the injuries suffered by Elaine Vincent [and] that the
plaintiff's own negligence was a legal cause of her injuries."
At the close of evidence, the parties conferred with
the court on jury instructions. Vincent again objected to the
"but for" instruction, arguing "that in cases where there are
facts that show a combination of acts working together produced
an injury, that the but for test can exonerate everyone . . . ."
The superior court gave the jury the following
causation instruction, which combined the "but for"and multiple
cause tests in the following manner:
In order to prove liability the
plaintiff must prove not only that Fairbanks
Memorial Hospital, Nurse Stevens, Nurse
Mitchell, or Dr. McCormick or any combination
of them was negligent, but also that their
negligence legally caused the plaintiff's
I have already defined negligence
for you and I will now define legal cause.
A legal cause of injury or damage
is a cause which is a substantial factor in
bringing about the injury or damage. An act
or failure to act is a substantial factor in
bringing about the injury or damage if it is
more likely true than not true that:
1. the act or failure
to act was so important in bringing
about the injury or damage that a
reasonable person would regard it
as a cause and attach
responsibility to it; and
2. the injury or damage
would not have occurred but for the
act or failure to act.
There may be more than one legal
cause of injury or damage. A person's
negligence may combine with another cause
(either the acts of another person or some
force of nature) to produce injury or danger.
If you find a person's negligence is a legal
cause of injury or damage, that person may
not avoid legal responsibility merely because
some other cause also caused or helped cause
the injury or damage.
In closing arguments, FMH's counsel urged the jury to
apply the "but for"portion of the court's legal instruction.6
Vincent's counsel argued that the concurrent cause rule was more
In a special verdict the jury found that Vincent
received negligent medical care. The jury also found that the
negligent medical care was not "a legal cause" of Vincent's
permanent brain injury. On appeal, Vincent argues that the
superior court's legal causation instruction was erroneous
because the court used the "but for"causation test.
STANDARD OF REVIEW
In evaluating whether there has been prejudicial error,
the reviewing court must put itself in the position of the jurors
and determine whether the error probably affected their judgment.
Alaska Pac. Assurance Co. v. Collins, 794 P.2d 936, 947 (Alaska
I. CAUSATION IN NEGLIGENCE ACTIONS IN GENERAL
Causation in negligence actions has been recognized as
a confusing concept. See W. Page Keeton et al., Prosser and
Keeton on Torts 41, at 263 (5th ed. 1984). Accordingly, we
begin our discussion with a review of the subject generally.
Two distinct prongs are encompassed in the concept of
legal cause in negligence: actual causation, and a more
intangible legal policy element.7 The "but for" test is the
appropriate test for actual causation in the majority of
circumstances. The "but for"test has been described as follows:
"The defendant's conduct is a cause of the event if the event
would not have occurred but for that conduct; conversely, the
defendant's conduct is not a cause of the event if the event
would have occurred without it." Id. 41, at 266.
The legal policy prong of negligence causation
questions "whether the conduct has been so significant and
important a cause that the defendant should be legally
responsible." Id. 42, at 273.8 A valid instruction on legal
causation must include both this element and an actual cause
As a general rule, Alaska follows the "substantial
factor test" of causation. See Morris v. Farley Enter., Inc.,
661 P.2d 167, 169 (Alaska 1983). Our "substantial factor test"
is derived from the Restatement (Second) of Torts 431 (1965),
The actor's negligent conduct is a legal
cause of harm to another if
(a) his conduct is a substantial factor
in bringing about the harm, and
(b) there is no rule of law relieving
the actor from liability because of the
manner in which his negligence has resulted
in the harm.
Id. at 428.
The Restatement's "substantial factor test"encompasses
both the actual and legal prongs of legal causation. See id.
431 cmt. a (1965). Thus, depending on the issues and evidence
presented at trial, a jury instruction on negligence applying
this test may incorporate a "but for"test of actual causation.
We have recognized, however, that the "but for"test is
not appropriate in instances where two or more forces are
involved, and where each force by itself is sufficient to cause
the injury. In such instances, the "but for"test should not be
used, as it could result in "each force being absolved of
liability." Wilson v. City of Kotzebue, 627 P.2d 623, 630
(Alaska 1981). As we explained in State v. Abbott, 498 P.2d 712
Normally, in order to satisfy the
substantial factor test it must be shown both
that the accident would not have happened
"but for"the defendant's negligence and that
the negligent act was so important in
bringing about the injury that reasonable men
would regard it as a cause and attach
responsibility to it. There is, however, one
significant exception to this concurrence
requirement: if two forces are operating to
cause the injury, one because of the
defendant's negligence and the other not, and
each force by itself is sufficient to cause
the injury, then the defendant's negligence
may be found to be a substantial factor in
bringing about the harm.
. . . .
. . . As Dean Prosser states:
If two causes concur to bring about
one event, and either one of them,
operating alone, would have been
sufficient to cause the identical
result [then liability should be
Id. at 727 (quoting William L. Prosser, Handbook of the Law of
Torts 41, at 239 (4th ed. 1971)) (footnote omitted) (brackets
In such a circumstance, where the trier of fact
potentially could determine that independent concurrent causes
were operating, the "but for" test clearly would be
II. WAS A CONCURRENT CAUSE INSTRUCTION WARRANTED?
Vincent argues that the superior court erroneously
instructed the jury on legal causation because the court used the
"but for"causation test. Relying on Yukon Equipment, Inc. v.
Gordon, 660 P.2d 428, 433 (Alaska 1983), overruled on other
grounds, Williford v. L.J. Carr Investments, Inc., 783 P.2d 235,
237 n.4 (Alaska 1989), she submits that the "but for" test is
inapplicable in the factual context of her case because she
alleged negligent acts of several actors. By imposing the "but
for" test, Vincent contends, the superior court prohibited the
jury from considering her theory that a combination of negligent
acts caused her injuries.
Vincent further argues that as a consequence of the
court's combined "but for"and concurrent cause instruction, the
jury was given inconsistent definitions of a controlling legal
rule. Vincent submits that the confusion created by this
internally inconsistent instruction constitutes reversible error.
In support of this contention Vincent points to other courts that
have held specifically that the combination of a "but for"and a
concurrent cause instruction is confusing and constitutes
prejudicial error. See Maupin v. Widling, 237 Cal. Rptr. 521,
525-27 (Cal. App. 1987); Hart v. Browne, 163 Cal. Rptr. 356, 363-
64 (Cal. App. 1980).9
FMH contends that since Vincent has alleged negligence
only on the part of FMH and its agents, the "but for"test could
not absolve the hospital of liability if the jury believed the
negligence it found was a substantial factor in bringing about
Vincent's injury. It argues that Wilson v. City of Kotzebue, 627
P.2d 623 (Alaska 1981), is controlling. In Wilson, we upheld the
applicability of the "but for"test where the plaintiff had
alleged several negligent acts by agents of one defendant, the
City of Kotzebue. Id. at 630. Similarly, FMH submits, the "but
for" test should govern here, where all the alleged negligent
conduct was attributable to the hospital. It explains:
There was no other party or force acting
upon Ms. Vincent other than the hospital to
point the finger at. . . . [Another] force,
whether it be a tortfeasor or act of God, is
not present in this action.
In rebuttal, Vincent argues that FMH itself has
contradicted its claim that only one force, if any, was involved
in the injury. She observes that FMH introduced evidence and
argued that Vincent's unique physiology was the true cause of her
Had the evidence in the instant case been limited to
alleged negligence by nurses and doctors employed by FMH, then
under the logic of Wilson, a "but for"instruction would have
been correct. FMH, the named defendant, would bear the legal
responsibility for all such acts. See id.
FMH, however, introduced evidence and argued that
factors unique to Vincent's physiology were involved in her
injury.10 In light of this evidence of another force, Vincent's
allegedly "extraordinary" physiology, our holding in Wilson
dictates that a concurrent cause instruction was proper. See
Fussell v. St. Clair, 818 P.2d 295, 297-98 (Idaho 1991) (holding
that where plaintiff alleged that doctor's negligence was the
sole cause of child's brain damage, and evidence submitted by
doctor indicated that an occult (hidden) prolapsed umbilical cord
was present, a concurrent cause instruction was appropriate);
Chambers v. Rush-Presbyterian-St. Luke's Medical Ctr., 508 N.E.2d
426, 431-32 (Ill. App. 1987) (holding that it was not error to
give concurrent cause instruction where defendants alleged that
the patient's preexisting cancer could have caused his death
absent a coma allegedly caused by defendants' negligence);
Scafidi v. Seiler, 574 A.2d 398, 402 (N.J. 1990) ("It is self-
evident that in cases in which the defendant's negligence
combines with a preexistent condition to cause an injury, the
standard charge on proximate cause could confuse or mislead a
III. WAS THE SUPERIOR COURT'S CAUSATION INSTRUCTION REVERSIBLE
Although we view the question as close, we conclude
that the superior court's legal causation instruction does not
constitute reversible error.11
The superior court was obligated to instruct the jury
in a manner sufficiently broad to permit either a finding of
concurrent causes, in which event the "but for" test would be
inapplicable, or a finding of sole legal causation, in which
circumstance a "but for"causation test would be appropriate.
Thus, the superior court did not err in including the "but for"
test in its causation instruction.
The questioned causation instruction did not preclude
Vincent from arguing to the jury her theory of combined
negligence on the part of FMH's agents and employees.12 In this
regard Vincent's counsel argued, as part of his final argument,
[i]t may, in fact, be a combination of
acts which lead up to a horrible injury, a
combination of safety violations . . . . It
may not just have been one mistake on the
part of the Fairbanks Memorial Hospital
nurses and doctors, it may not have been just
one safety violation; it may have been
several and each one acted as a building
block with the next. And, as those safety
violations mounted up, Elaine Vincent's
health and her ability to live a normal life
was placed at more and more risk.
On the other hand FMH's counsel never argued that even
if some act of negligence on the part of FMH was otherwise
sufficient to cause Vincent's heart attack, such negligence was
not the legal cause because the heart attack was going to happen
anyway. What counsel for FMH did argue was that the alleged acts
of negligence in failing to monitor vital signs were irrelevant
because just before the doctor administered Mepergan he knew the
patient's vital signs. The administration of Mepergan was
appropriate, and the patient had a highly unusual allergic
reaction to the drug which could not reasonably have been
expected. Of particular significance is the fact that the
superior court's legal cause instruction permitted the jury to
consider the combined negligence of various health care providers
and specifically informed them that legal responsibility could
not be avoided merely because some other cause or force of nature
caused or helped cause the injury or damage.13
Further, the causation instruction given by the
superior court closely paralleled Alaska Civil Pattern Jury
Instructions (CPJI) 3.06 and 3.07.14 The court, however, omitted
Instruction 3.06's bracketed text, which described the exception
to the "but for"rule warranted by the existence of concurrent
causes. We conclude, however, that the absence of the bracketed
bridge text was harmless error in the context of this record,
since the omission probably did not affect the jury's verdict.
Here again we emphasize that the concurrent causation approach
was not argued by FMH's counsel nor was Vincent precluded from
presenting to the jury her theories of liability.
In conclusion we hold that any error in the superior
court's legal cause instruction was harmless error in the
circumstances of this case.
BURKE, Justice, dissenting.
I respectfully dissent. I am unable to agree that the
error in the trial court's instructions to the jury was harmless.
1. Vincent's temperature was 95.3øF; normal is 96øF to
99øF. Her pulse rate was 112; normal is 60-90. Her respiration
rate was 36; the normal range is 12-20. Her blood pressure was
80/50; the normal range is 90/60 to 130/90.
2. Briefly, Vincent alleged that several acts or omissions
by hospital staff were causally related to her injury, including
inadequate testing of vital signs, inadequate documentation of
nursing care, failure to monitor and record fluid loss, negligent
administration of Mepergan, a narcotic known to reduce blood
pressure, administration of an overdose of Mepergan, and failure
to monitor after administration of the Mepergan.
3. Alaska Statute 09.55.536 provides in part:
(a) In an action for damages due to
personal injury or death based upon the
provision of professional services by a
health care provider . . . the court shall
appoint . . . a three-person expert advisory
panel . . . .
. . . .
(c) [The panel] shall make a written report
to the parties and to the court . . . .
4. On cross-examination by Vincent, Dr. Lewis explained
that the panel believed that Vincent was suffering from a
preexisting condition of extreme acidosis.
5. In its closing argument, FMH stated:
Now, we all sweat under the same sun, we
look up and gaze at the same moon, but we're
all a little bit different. . . . But one
thing is abundantly clear from the evidence
that's been presented and that is that Elaine
Vincent, physiologically, was undeniably a
little bit more different. . . . [H]er hair
[fell] out at age eight, a very odd
occurrence. You have the history of cervical
and bone cancer . . . . You have the ulcer
history . . . the history of alcoholism, and
. . . an allergic reaction to Codeine. [Such
a reaction is] extremely rare. But that's
Elaine Vincent. . . . That was an incredibly
unusual occurrence back then. This was an
incredibly unusual occurrence on December
11th, 1988. And the one basic question that
I think you must ask yourselves, is . . .
[i]s it just to hold the hospital responsible
for a damned -- whether or not you call it a
damned unusual or an extraordinary or highly
unusual event, is it just to hold them
responsible for that type of occurrence?
6. FMH's counsel, however, only illustrated the "but for"
instruction by asking the jury to assume for purposes of
illustration that the IV was started only after an unreasonable
delay. He then told the jury that only if the jury believed that
Vincent would not have been injured had the IV been started more
quickly could the delay in starting the IV be considered a legal
cause of the injury. He then went on to argue that the alleged
delay in starting the IV and the various alleged failures in
monitoring Vincent's status prior to the administration of
Mepergan were irrelevant because Vincent's status was known, and
known to be stable, by Dr. McCormick as of the time he ordered
Mepergan to be administered. Defense counsel then went on to
argue that Vincent had an allergic reaction to Mepergan which
caused her seizure and that the possibility of this happening was
so remote that it could not have reasonably been foreseen. At no
time did counsel for the defendant suggest that even if some
aspect of the care given Vincent was negligent and might
otherwise have caused her seizure, her seizure would have
occurred in any case from independent causes and therefore
defendant's conduct could not be the legal cause of Vincent's
injuries under the court's instructions.
7. "Legal cause" is also frequently referred to as
"proximate cause." See Jeremiah Smith, Legal Cause in Actions of
Tort, 25 Harv. L. Rev. 103, 106 (1911). Similarly, the
"substantial factor test"of the Restatement of Torts (Second)
431 is a test of legal causation encompassing both actual cause
and policy considerations. See discussion infra.
8. Explained in other words, "If the force [the defendant]
set in motion, has become, so to speak, merged in the general
forces that surround us, [or has] 'exhausted itself' like a spent
cartridge, it can be followed no further. Any later combination
of circumstances to which it may contribute in some degree is too
remote from the defendant to be chargeable to him." Smith,
supra, at 112 (citations omitted).
9. We note that in Mitchell v. Gonzales, 819 P.2d 872 (Cal.
1991), California completely rejected its "but for" causation
instruction. See id. at 876-79.
10. Additionally, Vincent herself introduced evidence of the
expert panel's conclusion that she suffered from severe acidosis.
11. In Poulin v. Zartman, 542 P.2d 251 (Alaska 1975), we
said that the test of "harmless error"is a subtle one. Id. at
261. The standard requires that the court put itself as nearly
as possible in the position of the jurors to determine whether
"'as reasonable men, the error committed probably affected their
verdict.'" Love v. State, 457 P.2d 622, 631 n.15 (Alaska 1969)
(quoting State v. Dutton, 318 P.2d 667, 671 (Ariz. 1957)); see
also Alaska Pac. Assurance Co. v. Collins, 794 P.2d 936, 947
(Alaska 1990). The fundamental test of the courts is to
determine whether substantial rights of the parties were affected
or the error had substantial influence. Kotteakos v. United
States, 328 U.S. 750, 765 (1946); Love, 457 P.2d at 631. In
addition, Alaska Civil Rule 61 requires this court at every stage
of the trial proceedings to "disregard any error or defect in the
proceedings which does not affect the substantial rights of the
parties." Alaska R. Civ. P. 61 (emphasis added).
12. See Coney v. State, 699 P.2d 899, 905 (Alaska App. 1985)
(disapproving a specific jury instruction, but finding harmless
error where instructions taken as a whole clearly stated proper
13. We reject Vincent's argument that the internal structure
of the superior court's legal cause instruction required the jury
to first resolve the legal cause issue by use of the "but for"
test. A reasonable reading of the instruction fails to support
Vincent's structural analysis.
14. CPJI 3.06 states:
A legal cause of harm is an act or
failure to act which is a substantial factor
in bringing about the harm. An act or
failure to act is a substantial factor in
bringing about harm if it is more likely than
not true that:
1. the act or failure to act was so
important in bringing about the harm that a
reasonable person would regard it as a cause
and attach responsibility for it; and
2. the harm would not have occurred
but for the act or failure to act.
[There is, however, one exception to the
requirement that the harm would not have
occurred but for the act, or failure to act,
or [sic] the defendant. If two forces
operated to cause the harm, one because of
the defendant and the other not, and each
force by itself was sufficient to cause the
harm, then the defendant's act or failure to
act is a cause of the harm if it was so
important in bringing about the harm that a
reasonable person would regard it as a cause
and attach responsibility to it.]
CPJI 3.07 states in relevant part:
There may be more than one legal cause
of harm. A person's negligence may combine
with another cause (either the acts of
another person or some force of nature) to
produce harm. If you find a person's
negligence is a legal cause of harm, that
person may not avoid legal responsibility
merely because some other cause also caused
or helped cause the harm.