Insurance Co. of North America v. Medical Protective Co.

Insurance Co. of North America v. Medical Protective Co.

Opinion

 [*316]  TIMBERS, Circuit Judge

Medical Protective Company (Medical Protective) appeals from a judgment entered August 5, 1983 in the District of  [*317]  Kansas, Dale E. Saffels, District Judge, in favor of Insurance Company of North America (INA), holding that Medical Protective, as the primary insurer of one Dr. Peter Torbey, had acted negligently and in bad faith in failing to settle within its policy limits a medical malpractice claim which had been asserted against Dr. Torbey. As a result, the court awarded INA, the excess insurer of Dr. Torbey, $323,121.90, the sum it was required to pay in [**2]  order to satisfy the judgment for damages against Dr. Torbey in the malpractice action. The court also denied Medical Protective's request that INA be required to contribute a pro rata share of Medical Protective's costs in defending Dr. Torbey.

For the reasons stated below, we affirm.

We shall summarize only those facts believed necessary to an understanding of our rulings on the issues raised on appeal.

In April 1969, Lois Laptad, a married, thirty-seven year old mother of two, entered the Wesley Medical Center in Wichita, Kansas, for diagnostic tests to be performed by Dr. Peter Torbey, a radiologist. Dr. E. J. Fieldman was to administer a general anesthetic. On the day of the procedure, Dr. Fieldman supervised William Mohan, a Certified Registered Nurse and Anesthetist, and Ms. Reese, a student anesthetist, in the administration of the anesthetic Innovar, manufactured by McNeil Laboratories. Once the anesthetic was administered, Dr. Fieldman left the room. While Dr. Torbey was out of the room preparing for the radiological procedure he was to perform, Mohan noticed that Laptad had fallen into an unusually deep state of anesthesia. He left the room to find Dr. Fieldman.  [**3]  Laptad was left alone with the student anesthetist. Dr. Torbey reentered the room and began the radiological procedure. Subsequently he noticed that Laptad had no pulse. Both Dr. Torbey and the student anesthetist became alarmed. The student attempted various emergency measures in an effort to revive Laptad. Dr. Torbey did nothing. Even though Dr. Torbey was the only physician in the room at the time, he was of the opinion that, as a radiologist, he should not involve himself in what appeared to be an anesthesiological problem. Laptad sustained severe brain damage as a result of these actions and inactions. She remained in a semicomatose state in a nursing home for the next seven years -- until she died.

The administrator of Laptad's estate commenced a negligence action in the district court against Doctor Fieldman; his assistants, Doctors Glenn Martin and M. M. Tinterow; Doctor Torbey; William Mohan; Laptad's referring general physician, Doctor J. T. Stewart; Wesley Medical Center; and McNeil Laboratories. Prior to trial, the Laptad estate settled with Drs. Fieldman, Martin, and Tinterow for $300,000, and with the Wesley Medical Center for $75,000. The case against Mohan and Dr.  [**4]  Stewart was dismissed. The remaining defendants at the time of trial were Dr. Torbey and McNeil Laboratories.

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