Robertson v. Richards , 115 Idaho 628 ( 1989 )

HUNTLEY, Justice.

I.

The primary issue before this Court is whether the correct standard was applied by the trial court in deciding whether a new trial should have been granted. We hold that the district court did not apply the correct standard. Therefore, we reverse and remand for further proceedings. In remanding for further proceedings, this Court does not give specific direction as to whether or not a new trial should be granted, but directs solely as to the standard which should be utilized in making the determination.

Leah Robertson was involved in a car accident and received multiple injuries. She was taken to the emergency room at the Idaho Falls Consolidated Hospital. Dr. Hansen was the doctor in charge when Robertson arrived at the emergency room. Dr. Hansen did a cursory examination and ordered a side-view neck x-ray and chest x-ray. Dr. Hansen called Dr. Richards, the defendant, to do a complete physical examination and dictate a history. He also called Dr. Bjornson to perform an orthopedic evaluation. Dr. Richards testified that he and Dr. Bjornson examined the neck and chest x-ray, and that Bjornson, skilled in the diagnosis of neck injuries, did not indicate any abnormalities in the neck x-ray. Dr. Richards ruled out a broken neck. However, the neck x-ray did not show all seven vertebra. Dr. Bjornson testified that he was not asked to review the neck x-ray and there is conflicting evidence as to whether he did look at it.

There is also conflicting evidence as to whether reliance upon a single lateral neck x-ray meets the applicable medical standard of care. All of the plaintiff’s experts testified that at least five different views of the neck were required before a broken neck could be ruled out. Dr. Richards, himself, admitted at least three views are needed before making a final determination, yet the record reflects that only one view was taken, which fact Dr. Richards knew.

Dr. Richards excused his failure to require at least three x-rays by asserting that he had relied upon Dr. Bjornson’s expertise to diagnose a broken neck. Dr. Richards argues that his reliance on Bjornson met the required standard of care. Dr. Bjom-son, however, testified that he did not assume responsibility for diagnosing the neck injury. This matter was highly contested and a close issue at trial.

This Court, based upon the record, does not rule on the applicable standard of care, but notes that this issue is one which entitles the trial court to weigh the testimony in making its determination of whether or not to grant a new trial.

Robertson was taken into surgery during which Dr. Richards performed an endotra-cheal intubation and cleaned and stitched Robertson’s facial cuts, while Dr. Bjornson set her broken leg. Prior to the surgery, Dr. Richards ordered the sandbags which had been used by paramedics to prevent neck movement be taken away from Robertson’s neck. After the surgery, Dr. Richards claimed he reviewed the neck x-rays with Radiologist Newell Richardson. Richardson did not recall discussing the neck x-ray with Dr. Richards. On the afternoon of March 27th, Richardson reviewed all of the x-rays and dictated an x-ray report. Specific reference to the neck x-ray indicated that the present examination was not satisfactory and additional x-rays were needed.

During the next three days, Leah began to exhibit a loss of neurological function. Richards asked Dr. Amick, a Neurologist, to assist with the case. Robertson’s condition deteriorated in the ensuing eight weeks. The doctors concluded that Robertson would not be able to be removed from the breathing machine. She could not breathe on her own, she could not move her arms or legs, her eyes were crossed, and she lost bowel and bladder control.

In mid-May, Richards, as attending physician, advised the family to consider terminating Leah Robertson’s life support system. The family decided that they wanted a brain scan before making a decision. The CT Scan revealed water on the brain.

Dr. Heilbrun, a Neurosurgeon from the University of Utah Hospital, was called in to consult with the Robertson family. In reviewing the medical records, Dr. Heil-brun noted that the x-ray report had recommended additional neck x-rays, but that there had not been any other neck x-rays taken.

Additional x-rays were then taken and revealed a broken neck. There was a fracture of the odontoid process of C-2 near the base of the skull. The fracture was displaced to the rear 10mm, striking Robertson’s spinal cord just below the brain stem. Heilbrun put Robertson in cervical traction to place her spine in the proper position, and the neck fracture was fused. The traction and fusion enabled Robertson to progress to the point of breathing on her own, and she gained the use of her left and right sides; however, due to neurological damage, Robertson’s eyes were permanently crossed. At the University of Utah, it was also discovered that Robertson had a broken hip. After three-and-a-half months at the University of Utah Hospital, Robertson returned home. Within five months, Robertson returned to the University of Utah for rehabilitation work; this work enabled Robertson to gain control of her bowels and bladder, and she learned to walk with the aid of a walker.

The Robertsons brought suit against Dr. Richards and seven other defendants. All of the defendants, except Dr. Richards, were insured by the same company and settled before trial.

The jury returned a verdict favoring Dr. Richards. The Robertsons moved for judgment notwithstanding the verdict¹ or for a new trial. The court denied the motion. The Robertsons now appeal.

In denying the Robertsons’ motion for a new trial, the district court stated in its findings the following:

In summary the court makes the following findings:

II. That the evidence was conflicting and depending upon the weight and credibility, the jury chose to give to the evidence, they could have gone either way in rendering their verdict. The fact that the court might have differed and would have weighed the evidence in a different way does not open the way for a new trial.

This finding by the trial court is at issue. We hold that the trial judge, by failing to recognize his power to evaluate the evidence and determine if a new trial should be granted, applied the wrong standard and thus erred.

The trial court is given broad discretion in granting a new trial. Jacksha v. Gilbert, 4 Idaho 738, 44 P. 555 (1896). Idaho Rule of Civil Procedure 59(a)(6)² allows for the granting of a new trial when the judge determines there is an insufficiency of the evidence to justify the jury’s verdict.

In Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986), this Court described the power which I.R.C.P. Rule 59(a)(6) vests in the trial court in granting a new trial:

Idaho Rule of Civil Procedure 59(a)(6) permits the trial court to grant a new trial on all or part of the issues in an action by reason of the “[insufficiency of the evidence to justify the verdict or other decision, or that it is against the law.” It is well established that the trial judge may grant a new trial based on I.R.C.P. Rule 59(a)(6) where, after he has weighed all the evidence, including his own determination of the credibility of the witnesses, he concludes that the verdict is not in accord with his assessment on the clear weight of the evidence. Sheets v. Agro-West, Inc., 104 Idaho 880, 883, 664 P.2d 787, 790 (Ct.App.1983). Id. 111 Idaho at 766, 727 P.2d at 1194.

In Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967), this Court formulated a two-pronged analysis which the trial court must use in determining whether to grant a new trial. The Court articulated the aspects of the first prong as follows:

The rule that where there is any competent evidence, though conflicting, to sustain the verdict, the verdict will not be set aside has no application to a trial court in passing upon a motion for a new trial. Grimm v. Harper, 84 Idaho 220, 370 P.2d 197; Coast Transport v. Stone, 79 Idaho 257, 313 P.2d 1073. See also Warren v. Eshelman, 88 Idaho 496, 401 P.2d 539. Rather the discretion with which the trial judge is entrusted is a sound legal or judicial discretion, and the trial court may grant a new trial when it is satisfied the verdict is not supported by, or is contrary to, the evidence, or is convinced the verdict is not in accord with the clear weight of the evidence and that the ends of justice would be sub-served by vacating it, or when the verdict is not in accord with either law or justice. (Citations omitted). Id. 91 Idaho at 670-671, 429 P.2d at 402-03.

The first prong directs the trial judge to consider whether the verdict was against the weight of the evidence and if the ends of justice would be served by vacating the verdict. In Quick, supra, this Court noted that “the judge is free to weigh the conflicting evidence for himself.” 111 Idaho at 767, 727 P.2d at 1194. The Court further emphasized the role the trial judge plays in preventing a miscarriage of justice:

The trial judge is not required to view the evidence in a light most favorable to the verdict-winner. Although the mere fact that the evidence is in conflict is not enough to set aside the verdict and grant a new trial, when a motion for new trial is based on the ground that the verdict is against the weight of the evidence, the judge is free to weigh the conflicting evidence for himself. In fact, as Wright & Miller note in their treatise discussing the similar Federal Rule of Civil Procedure 59, “the granting of a new trial on the ground that the verdict is against the weight of the evidence ‘involves an element of discretion which goes further than the mere sufficiency of the evidence. It embraces all the reasons which inhere in the integrity of the jury system itself.’ ” Wright & Miller, supra § 2806 at 45 (citing Tidewater Oil Co. v. Waller, 302 F.2d 638 (10th Cir.1962)).

The trial judge is sitting at the heart of our trial process, a position we on the appellate level cannot duplicate. On the one hand, he does not sit to approve miscarriages of justice when they occur in his courtroom. His authority to set aside the verdict on a new trial motion is supported by clear precedent at common law. Indeed, far from being a denigration or usurpation of the right to a trial by jury, trial judges have always been regarded as an integral part of that right. Wright & Miller, supra § 2806, at 49. On the other hand, respect for the collective wisdom of the jury and the function entrusted to it under our constitution suggests the trial judge should, in most cases, accept the jury’s findings even though he may have doubts about some of their conclusions. Id. Certainly, all that can be expected of our trial judges as they exercise their discretion in this area is that they balance these conflicting principles in light of the particular facts of each case. Id. “If, having given full respect to the jury’s findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed, it is to be expected that he will grant a new trial.” Id.; U.S. v. U.S. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Id. 111 Idaho at 767-68, 727 P.2d at 1195-96. (Emphasis added).

This Court has stated that the trial court has a duty to grant a new trial, even where there is evidence to support the verdict, if the verdict is unjust:

Indeed, it has not only been held that the trial court may set aside a verdict which is contrary to the evidence, but that there is a positive duty upon the trial court to do so. Deshazer v. Tompkins, 93 Idaho 267, 271, 460 P.2d 402, 406 (1969). (Emphasis in original) (overruled on separate issue in Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974)).

Idaho case law makes clear that the trial court has the responsibility to weigh the evidence and make an independent determination as to whether the evidence supports the verdict. Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234 (1986); Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979); Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972); Rosenberg v. Toetly, 93 Idaho 135, 456 P.2d 779 (1969); Mendenhall v. MacGregor Triangle Co., 83 Idaho 145, 358 P.2d 860 (1961); Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950) (overruled on separate issue in Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972)).

The second prong of Blaine directs the trial court to consider whether a different result would follow in a retrial:

Additionally, the general rule which prevails in this jurisdiction is that a motion for a new trial should not be granted unless it appears that a different result would follow a retrial. Id. 91 Idaho at 671, 429 P.2d at 403.

Although the trial court did not specifically address the second prong because he was not considering and applying the Blaine standard, there is language in his memorandum decision which indicates he might have felt that prong was satisfied:

Plaintiffs claim that the overwhelming weight of evidence produced at trial was that Dr. Richards was at fault, in part at least, in not diagnosing and treating the broken neck. Without question there was evidence presented that would justify a finding of fault on the part of Dr. Richards. If this had been a bench trial, the court could make findings and conclusion that would support a finding of fault in spite of the testimony of Dr. Hansen, Dr. Fazio, and Dr. Barth.

The first prong, however, is not addressed by the trial judge either directly or indirectly because of a mistaken belief that it did not have the power to grant a new trial based upon a reevaluation of the evidence by the bench. The law in Idaho, as stated herein, makes it clear that the district court does have the power to grant a new trial. In Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575, (1979), this Court recognized that a trial court’s misconception of the law is an abuse of its discretion:

It is clear, then, that this court has been consistent in (1) recognizing the trial court’s important function in passing on motions for new trial, and (2) upholding the trial court’s grant or denial of such a motion unless the trial court has manifestly abused the wide discretion vested in it, or, as in Meissner, supra, misconceived the law, or, as suggested in Blaine v. Byers, supra, unless the trial judge has applied a “question of law” rule to a decision which must be made as question of fact. That doctrine is sound, it is well established, and will be adhered to. Id. at 625, 603 P.2d at 580.

In assuming that it did not have the power to grant a new trial based upon an independent evaluation of the evidence, the trial court did not apply the correct standard, and thus, abused its discretion. Hence, the trial court’s decision is reversed, and the case is remanded for further proceedings consistent herewith.

II.

We are required to “pass upon and determine all the questions of law involved in the case presented upon ... appeal, and necessary to the final determination of the case. I.C. § 1-205;” Garrett Freightlines, Inc. v. Bannock Paving Co., 112 Idaho 722, 703, 735 P.2d 1033, 1041 (1987). There are several issues raised on appeal involving questions regarding the propriety of the jury instructions and an important evi-dentiary question which need to be addressed.

(A)

The appellants have argued that the district court erred in the standard of care used in the instruction on negligence. The appellants argue that the district court committed reversible error when it rejected their general instruction defining negligence.³ However, I.C. § 6-1012 sets the applicable standard of care in Idaho medical malpractice cases, and the district court’s instructions correctly apprised the jury that the defendant was required to meet that standard.⁴ Where the court's instructions adequately and correctly instruct the jury on the law, no error may be predicated upon failure of the trial court to give a requested instruction. McPheters v. Peterson, 108 Idaho 107, 697 P.2d 447 (1985).

I.C. § 6-1012 states in part that “individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience and fields of medical specialization, if any.” I.C. § 6-1012 statutorily sets the standard of care in medical malpractice actions. The given instructions were based upon the legislative standards set forth in I.C. § 6-1012, and accordingly there was no error committed by the trial court in the instructions given, or in refusing appellants’ requested negligence instructions. McPheters v. Peterson, 108 Idaho 107, 697 P.2d 447 (1985).

(B)

The record reflects that at the jury instruction conference the parties and the court agreed upon an instruction defining proximate cause, but in the instructions actually read and submitted to the jury that instruction was omitted. The parties are in disagreement as to why the instruction defining proximate cause did not get submitted to the jury. The district court found that the instructions agreed on at the instruction conference were given to the appellants’ secretary for typing, and that in the typing process the instruction was lost by the appellants’ typist.

While the appellants contest the district court’s finding of their typist’s responsibility for the loss of the instruction, we need not resolve that dispute in order to dispose of the issue. First, the jury, in its special verdict, did not find Dr. Richards negligent, and therefore the issue is essentially moot. The absence of a proximate cause definition does not constitute error where the jury found that no negligence existed on the part of Dr. Richards. It is essential that negligence exists before the proximate cause issue rises. Jones v. Robert E. Bayley Constr. Co., Inc., 36 Wash.App. 357, 674 P.2d 679, 683 (1984) (“In this case, however, the jury determined by special verdict that Bayley was not negligent, so they did not reach the issue of proximate cause. The error was, therefore, harmless.”).⁵

Additionally, even though the proximate cause definition instruction was inadvertently omitted, after the instructions were read and submitted to the jury, the appellants had a duty to timely notify the trial court of the omitted instruction. A litigant may not remain silent as to claimed instructional error after it occurs during the trial, and then later urge his objection to that error for the first time on appeal. Hoppe v. McDonald, 103 Idaho 33, 644 P.2d 355 (1982).

Finally, viewing the existing jury instructions as a whole, we do not believe that the absence of a given instruction defining proximate cause was reversible error in this case. The court’s given instructions correctly instructed the jury that “the plaintiffs have the burden of proving that the negligence of the defendant was a proximate cause of the injury and damage to the plaintiffs, and the amount thereof.” Instruction 12; Harper v. Hoffman, 95 Idaho 933, 523 P.2d 536 (1974). This Court has stated that in reviewing alleged errors in the jury instructions we must consider the instructions as a whole. Bushong v. Kamiah Grain, Inc., 96 Idaho 659, 534 P.2d 1099 (1975); Holland v. Peterson, 95 Idaho 728, 518 P.2d 1190 (1974). Whether or not the failure to define proximate cause in a jury instruction is error, much less reversible error, is questionable. See Prosser, Proximate Cause in California, 38 Cal.L.R. 369 (1950).⁶ Several courts have held that the terms “cause” and “proximate cause” are of sufficiently common usage and understanding and that a jury may be fairly expected to understand them without a definitional instruction. Stoneburner v. Greyhound Corp., 232 Or. 567, 375 P.2d 812, 816 (1962) (“As a matter of caution, trial courts submit instructions on proximate cause, but such instructions are unnecessary where in the very nature of things the alleged acts of negligence, if true, necessarily formed a part of the efficient cause, and the law itself would draw that inference.”). See also Quigley v. School Dist. No. 45J3, 251 Or. 452, 446 P.2d 177 (1968). We need not decide in this case that question, however, given the circumstances here where the jury concluded that Dr. Richards was not negligent. Under the circumstances of this case, appellants’ assignment of error regarding failure to give an instruction defining proximate cause is without merit.

(C)⁷

Appellants also argue that respondent’s defense counsel engaged in intentional prejudicial conduct and that such conduct entitled the appellant to a new trial. The conduct complained of by the appellant took place during the cross examination of Dr. Bjornson, who was called as a witness by plaintiffs to support their claim of negligence against the defendant Dr. Richards. The witness, Dr. Bjornson, had also been sued by the plaintiffs, but had settled. When Dr. Bjornson testified that his treatment of the plaintiff was entirely appropriate, the respondent’s counsel asked the doctor why then had the Robertsons sued him for $5 million.⁸ Appellants assert that the question put to Dr. Bjornson violated the strictures of I.C. § 10-111.

A review of the transcript containing the cross examination of Dr. Bjornson makes it abundantly clear that the doctor, by his testimony, was placing responsibility for the failure to discover the neck injury solely on Dr. Richards. As such, Dr. Bjorn-son’s testimony was open to impeachment, and the defense counsel’s question, eliciting the fact that Dr. Bjornson had also been sued for $5 million for causing the same injuries that the defendant Dr. Richards was being sued for, was arguably relevant to rebut and impeach the main thrust of Dr. Bjomson’s testimony that Dr. Richards was responsible for plaintiffs’ injuries. Appellants’ argument that I.C. § 10-111⁹ bars defense counsel’s statement misreads the statute. While this section puts strict limits on a party’s ability to inform the jury of the amount of damages sought in the action being tried, no such disclosure was made in this case. Rather, the defense attorney’s question dealt with the amount of money that Dr. Bjornson had been sued for. That figure involved a separate claim which was not the subject of the action being tried, and therefore the question posed to Dr. Bjornson was not precluded by I.C. § 10-111.

In conclusion, on the three other issues raised by the parties on appeal, the trial court did not err. Accordingly, the judgment of the trial court is vacated solely for the purpose of remanding for reconsidering the appellants’ motion for new trial, applying the correct legal standard set out in Part I above. Costs to appellant.

SHEPARD, C.J., and DONALDSON,^* BAKES and BISTLINE, JJ., concur.

1 . Since there was substantial competent evidence to support the verdict, the court properly denied plaintiff's motion for judgment n.o.v.

2 . Rule 59(a)(6) provides as follows:

Rule 59(a). New trial — amendment of judgment-grounds. — A new trial may be granted to all or any of the parties and on all or part of the issues in an action for any of the following reasons:

6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against the law.

3 . The requested instruction was basically IDJI No. 205 on negligence.

4 . Instructions 12 and 13 dealt with the appropriate standard of care. These instructions read as follows:

"INSTRUCTION NO. 12

"The plaintiffs in a medical malpractice case have the burden of proving, by direct expert testimony and by a preponderance of all competent evidence, that at the time and place of the alleged incident in question, the defendant negligently failed to meet the applicable standard of health care practiced in the community in which such care allegedly was or should have been provided as such standard then existed with respect to the class of health care provider to which the defendant belonged and in which he was functioning.

"In addition, the plaintiffs have the burden of proving that the negligence of the defendant was a proximate cause of the injury and damage to the plaintiffs, and the amount thereof.”

"INSTRUCTION NO. 13

“An individual provider of health care, such as the defendant in this case, shall be judged in comparison with similarly trained and qualified providers of the same class in the same community, taking into account training, experience, and field of specialization.”

5 .Huntley, J. respectfully dissents from the rationale of this paragraph because, assuming ar-guendo, the instruction should have been given, its absence would presumably affect or influence the jury’s resultant verdict.

6 . In his article on proximate cause, Prosser reflected on the definition of proximate cause, stating, "There are probably few judges who would undertake to say just what [the definition of proximate cause] means, and fewer still who would expect it to mean anything whatever to a jury.”

7 . Huntley, J. does not join the majority in this Part 11(C).

8 . The line of questioning preceding defense counsel’s question regarding the $5 million was as follows:

"Q. To your knowledge, did your treatment of the fractures turn out okay, of her lower leg fractures?

"A. I believe the fracture united, but that was after she left the hospital.

"Q. But as far as you understand, she had a good recovery from the fracture?

"A. The fracture united. I don’t know about her function.

“Q. You haven’t seen her since she was transported to Salt Lake City, have you?

"A. No, sir.

"Q. Do you have any reason to believe that your reduction of the fractures was in any way inappropriate?

"A. No.

“Q. Do you feel that your care of her fractures was appropriate ?

"A. Yes, sir.

“Q. If that’s the case, Dr. Bjornson, can you explain to the ladies and gentlemen on the jury why Mr. and Mrs. Leah Robertson sued you for 5 million dollars in this case?

"A. I think because I was one of the physicians—

"MR. ESPLIN: Objection, your Honor. I think that that’s the type of evidence — calls for a legal conclusion. He has no way of—

"THE COURT: Let’s take a recess. I think— on the objection, why, well have the matters heard outside the presence of the jury. "Well take a recess.” (Emphasis added.)

9 . "10-111. Amount sought for damages not disclosed to jury. — In any civil action for damages, the amount of general damages sued for shall not be disclosed to the jury by court, counsel or any party and it shall be grounds for mistrial for any person to violate the prohibition of this act whether by specific statements or generalized argument. In furtherance of the provisions of this act it is declared that it is the exclusive province of the jury in a civil action for money damages involving allegations of general damages to resolve such issues of fact and it is against the policy of the state of Idaho for the jurors required to make such determinations to be informed of the particulars of allegations of damages in the pleadings on file with the court, by the arguments of counsel or otherwise, the dollar amount appraisal or evaluation of such damages being the exclusive province of the trier of fact; provided, this act shall not be construed to prohibit proof of damages or presentation of arguments which are legally relevant and proper in view of the record and issues before the court in any action for money damages."