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On Wednesday or Thursday, March 9 or 10, 1988 McCourt (P) was injured (a punctured finger) while working with horses. She continued working. There is evidence that P was seen by Dr. Abernathy (D) in his office at that time and was treated for a pulled muscle. On Sunday, March 13, her condition worsened and she went to the emergency room. She was experiencing greater pain and had difficulty breathing. Dr. Clyde (D) examined and treated her for a pulled chest muscle. There is evidence Dr. Clyde (D) treated the puncture wound to P's finger at that time. She was given prescriptions for Motrin and Co-Tylenol. She returned to her home. The following day, March 14, her condition became significantly worse. She was examined by an emergency room physician who ran some blood tests. This physician indicated an immediate need to admit P to the hospital. He telephoned Dr. Abernathy and was given permission to admit P. At 6:30 that evening, Dr. Abernathy (D) examined her and observed the injured finger, for which he prescribed Keflex, an oral antibiotic. At 9:00 the following morning, both Ds saw P while making rounds at the hospital. By that time, Wendy's condition had worsened yet more and the doctors consulted Dr. Kovaz, an internist. After examining P, Dr. Kovaz immediately moved her to the intensive care unit with a diagnosis of sepsis, a bacterial infection. Although treatment with intravenous antibiotics was begun at that time, her condition continued to deteriorate. Over the next 4 days, her skin began to slough off, her eyes filled with blood, her feet turned black, she bled from her nose, mouth, and pores, and she became bloated beyond recognition. She died on March 19, 1988, from beta strep septicemia with multiple organ system failure secondary to the sepsis. P presented expert testimony that P's illness was caused by 'an unfortunate circumstance where transient bacteria in the bloodstream landed in an area already traumatized by the injury with the horse.' He testified, assuming, as the 'Death Summary' indicates, Dr. Abernathy (D) saw Wendy on the 9th, she had a puncture wound to the finger and it was known she was working around horses, he should have put her on preventive antibiotics on that day. He stated it would also have been below the standard of care for Dr. Clyde (D) to have observed an infected finger on the 13th and not treat her with antibiotics or order laboratory tests. He stated he felt P had a 100% chance of survival on the 13th had she been started on antibiotics at that time. Based on the test results received on the afternoon of the 14th, he stated that a doctor should know the patient was seriously ill and should have suspected sepsis. He concluded P's life could have been saved if antibiotics had been started on the 9th, which would have prevented or treated an early infection of the finger. He also stated that more likely than not, P could have been saved on the 13th by treatment with antibiotics as well as on the 14th with aggressive antibiotic therapy. He stated it was also below the standard of care to wait until the 15th to call in a specialist. Another expert likewise testified, that assuming P presented with an infected finger on the 9th, failure to treat that prophylactically fell below the standard of care. He stated, that assuming Wendy presented with an infected finger on the 13th, Dr. Clyde's (D) treatment fell below the standard of care by failing to order lab tests, failing to immobilize the finger, and failing to start antibiotics. As to Dr. Abernathy's (D) treatment on the 14th, he testified it was 'profoundly below the standard of care', not because he missed the diagnosis, but because he failed to order aggressive observation and failed to request consultation intervention. Ds requested special jury instructions relating to a mistake in diagnosis or error in judgment in a medical malpractice cause of action. Ds assert all of the charges stand for the proposition that a physician is not liable for a mistake in diagnosis or error in judgment if he acts within the appropriate standard of care. The court refused and issued its own instructions. Ds were found liable for $2,550,000. Ds appealed.

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