Brickner v. Normandy Osteopathic Hospital, Inc. , 687 S.W.2d 910 ( 1985 )

SIMON, Judge.

Plaintiffs, the widow and daughter of James Brickner, deceased, brought the present wrongful death action against Normandy Osteopathic Hospital, Inc. (Hospital); David K. Bean, D.O., a family practitioner, J.P. Smith, D.O., who was a resident in general surgery at Hospital, and John C. Olson, D.O., an urologist and surgeon. Plaintiffs alleged that the three doctors committed medical malpractice by failing to diagnose the deceased’s testicular cancer and that Hospital was vicariously liable for the alleged negligence of Dr. Smith. Dr. Olson and plaintiffs settled their case before trial for $200,000. Dr. Smith was dismissed from the lawsuit before the case was submitted to the jury. The jury returned a verdict of $1,000,000 for plaintiffs against Dr. Bean, and a verdict in favor of Hospital. The trial court granted plaintiffs’ motion for a new trial as to Hospital.

Dr. Bean appealed from the adverse judgment, but he and plaintiffs settled their dispute after the case was submitted to our court and his points relied on need not be considered. Hospital appeals from the trial court’s grant of a new trial.

Division Two of this Court affirmed the trial court’s grant of a new trial as to Hospital, but modified the order to preclude relitigation of the amount of plaintiffs’ damages and remanded the case for a new trial. We then granted Hospital’s motion for rehearing. After reconsidering en banc Hospital’s points relied on, we again affirm in part, reverse in part and remand for a new trial. .

Hospital contends the trial court erred in: (1) ruling that Hospital’s converse instruction was erroneous and (2) failing to restrict the new trial to only a determination of liability.¹

The trial court granted plaintiffs a new trial as to Hospital because of alleged error in the giving of a converse jury instruction to the verdict directing instruction against Hospital. The verdict directing instruction was MAI 20.01, modified by the first option in MAI 19.01 for acts committed by alleged joint tortfeasors:

INSTRUCTION NO._6

Your verdict must be for plaintiffs against defendant Normandy Osteopathic Hospital if you believe:

First, plaintiffs were the spouse and child of James L. Brickner, and Second, Dr. Smith failed to diagnose testicular cancer, and

Third, Dr. Smith was thereby negligent, and

Fourth, such negligence directly caused or directly contributed to cause the death of James L. Brickner.

The converse instruction conversed the last two elements of the verdict director; however, the converse of the fourth element deviated from the language of the verdict director in that the converse retained the “direct result” language of MAI 20.01 rather than the MAI 19.01 modification:

INSTRUCTION NO._7

Your verdict must be for Defendant Normandy Osteopathic Hospital unless you believe J.P. Smith was negligent as submitted in Instruction No. 6 and as a direct result of such negligence plaintiffs sustained damage.

Hospital admits that its converse instruction does not follow plaintiffs’ verdict director. Hospital contends, however, that the converse was proper because the verdict directing instruction itself was erroneously given in that Dr. Bean and Hospital, through Dr. Smith, were not joint tort-feasors. The issue is thus whether the two doctors could be considered joint tort-feasors.

The term joint tortfeasors embraces four distinct types of conduct: (1) concerted action; (2) common duty; (3) vicarious liability; and (4) single, indivisible harm caused by independent, separate, but concurring torts of two or more persons. See Sall v. Ellfeldt, 662 S.W.2d 517, 525 Fn. 4 (Mo.App.1983). Here, Dr. Bean and the Hospital, through Dr. Smith, were not acting in concert or under a common duty to plaintiffs’ decedent. Nor is Hospital vicariously liable for Dr. Bean’s negligence.

Only if Dr. Bean and Hospital committed independent separate, but concurring torts which caused a single, indivisible harm may they be considered joint tortfeasors. That only one harm — the death of plaintiffs’ decedent — occurred is beyond dispute. That each physician could independently be charged with negligence in failing to diagnose the decedent’s testicular cancer has not been contested.

Missouri law recognizes that where persons whose independent negligent acts coalesce to cause a single indivisible injury, each person may be jointly and severally liable for all the harm caused. Barlow v. Thornhill, 537 S.W.2d 412, 418[1] (Mo.banc 1976). Health care practitioners may become joint tortfeasors if their independent acts of malpractice combine to cause a single injury. See Sall v. Ellfeldt, 662 S.W.2d at 525 fn. 4. No reason has been advanced against applying general concepts of joint and several liability to the field of medicine. Dr. Bean and Hospital are arguably joint tortfeasors, and therefore, plaintiffs’ verdict director was correctly modified by MAI 19.01. “A true converse, according to the precepts of MAI 33.01 must submit the proposition of the verdict director in substantially the same language of that instruction.” Sall v. Ellfeldt, 662 S.W.2d at 524[3-5], In the present case, the failure of the converse instruction to mirror the verdict director is error.

In Sall v. Ellfeldt, supra, the court held that the defendant’s erroneous converse instruction, which, as here, departed from the verdict director by failing to take into account the MAI 19.01 modification, was not prejudicial because other instructions, particularly the instructions relating to apportionment of fault between the joint tort-feasor, sufficiently submitted the plaintiffs’ theory of joint tortfeasor and dispelled any intimation of sole cause. 662 S.W.2d at 526. We have examined all the instructions given to the jury in the present case, but unlike the court in Sall v. Ellfeldt, we are unable to find other instructions which sufficiently instruct the jury regarding joint liability and which dispel the notion of sole cause. No apportionment of fault instructions were given. Given the erroneous converse instruction, which was given in substantially identical form to the verdict director against Dr. Bean, the jury may have been led to believe that they could return a verdict against one of, but not both, the defendants.

The en banc rehearing of the present appeal was accompanied by the simultaneous rehearing of Abshire v. Nordson Corporation, 688 S.W.2d 1 (Mo.App. E.D., No. 47561). The present case and Abshire were reheard together because of the similarity of the issues presented and a perceived conflict between the two divisions’ opinions. Abshire is, however, distinguishable on its facts from the present case. There, a jury instruction on apportionment of fault and an apportionment of fault verdict form clearly informed the jury that plaintiffs could recover from both defendants, thus dispelling any intimation by the erroneous converse instruction that recovery could be had against only one defendant. See Sall v. Ellfeldt, supra. Here, however, the jury was given no apportionment of fault instructions or verdict forms which may have removed the prejudice caused by the erroneous converse instruction.

Deviation from the dictates of MAI is presumptively prejudicial error unless the proponent of the instruction can establish that no prejudice could have resulted from the deviation. Snyder v. Chicago, Rock Island & Pacific Railroad Co., 521 S.W.2d 161, 164[4 — 8] (Mo.App.1973). Hospital has failed to show how the converse was nonprejudicial.

Trial courts are vested with wide discretion in passing upon motions for a new trial. Union Electric Co. v. Turner, 446 S.W.2d 430, 433[4,5] (Mo.App.1969). Reviewing courts will be more liberal in upholding a trial court’s grant of a motion for new trial than its denial of the motion. Id. at 433-434[6]. We cannot say that the trial court abused its discretion in granting a new trial on the ground that the erroneous converse instruction was prejudicial to plaintiffs.

Next, Hospital argues that even if the trial court acted properly in its grant of a new trial, it should have limited the new trial to a determination of the Hospital’s liability only. We agree.

In Wolfe v. Harms, 413 S.W.2d 204 (Mo.1967) where a verdict had been returned against all four defendants, but a new trial had been granted as to two defendants, Harms and East, the trial court properly ordered the verdict “... held in abeyance until the cause was finally disposed of as to the liability only of Harms and East, and then to enter judgment for the amount of the verdict in abeyance against all defendants finally held liable.” 413 S.W.2d at 219[80,31]; see also Lemonds v. Holmes, 360 Mo. 626, 229 S.W.2d 691, 694[8] (Mo. banc 1950). The court in Yarrington v. Lininger, 327 S.W.2d 104 (Mo.1959), ordered the retrial of the issue of damages where a new trial was granted as to the liability of two of three co-defendants who had been held liable by the first verdict; however, the two defendants whose liability was to be redetermined had also complained that the verdict was excessive. Here, neither plaintiffs nor Hospital have questioned the propriety of the amount of the verdict.

The trial court thus should have held the $1,000,000 verdict against Dr. Bean in abeyance until the cause was finally disposed as to the liability only of Hospital, rather than enter judgment for plaintiffs and against Dr. Bean. Since plaintiffs could have only one satisfaction for the decedent's wrongful death, entry of the judgment on the verdict as to Dr. Bean while granting a new trial as to Hospital poses the possibility that Hospital could be discharged from liability by satisfaction of plaintiffs’ judgment against Dr. Bean. See Payne v. Bertman, 224 Mo.App. 690, 27 S.W.2d 28 (1930).

One may argue that with the vacation of the judgment against Dr. Bean and his dismissal from the lawsuit, the necessity of limiting the new trial to the issue of Hospital’s liability has vanished. For two reasons, we nevertheless consider the better course is to limit the issue at the new trial. First, insofar as is practicable, we desire to put the parties in the position they would have been had no uncorrected trial court error occurred. The only error not corrected by the trial court was its failure to hold the verdict in abeyance. Second, we see no reason why plaintiffs should be allowed to relitigate the issue of damages. Plaintiffs’ damages are unrelated to Hospital’s liability. In addition, plaintiffs do not complain that the $1,000,000 verdict is inadequate.

In order to allow a new trial of plaintiffs’ claim against Hospital and to permit a settlement between plaintiffs and Dr. Bean, which is exemplified by their covenant not-to-sue and which has already been approved by the trial judge, this court rules as follows: the trial court’s order granting a new trial as to Hospital is affirmed in part and reversed in part; the judgment in favor of plaintiffs and against Dr. Bean is vacated; and the causes are remanded to dismiss with prejudice plaintiffs' claim against Dr. Bean, pursuant to the trial judge’s order of July 12, 1984, to conduct a new trial as to the liability only of Hospital, and to hold in abeyance the amount of the verdict until the cause is finally disposed of as to the liability only of Hospital, and then to enter judgment for the amount of the verdict in abeyance ($1,000,000) against Hospital, if finally held liable, less the present value of the settlements between plaintiffs and Doctors Olson and Bean.

Judgment affirmed in part, reversed in part, and remanded with directions.

REINHARD, C.J., and PUDLOWSKI and DOWD, JJ., concur. CRIST, P.J., and STEWART, J., concur in result. KAROHL, J., dissents. SMITH and GAERTNER, JJ., dissent in separate opinions.

1 . Hospital has not contested the issue of its vicarious liability for Dr. Smith’s acts. Therefore, we did not consider the issue.