Chenille Condon, Plaintiff and Appellee v. St. Alexius Medical Center and Allen Michael Booth, M.D., Defendants and Appellants
No. 20180297
IN THE SUPREME COURT STATE OF NORTH DAKOTA
2019 ND 113 Filed 4/22/19 by Clerk of Supreme Court
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia M. Feland, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Jensen, Justice.
Thomas J. Conlin (argued), Stacy D. Stennes (appeared), Minneapolis, MN, and Robert V. Bolinske Jr. (on brief), Bismarck, ND, for plaintiff and appellee.
Tracy Vigness Kolb (argued), Bismarck, ND, and Rodger A. Hagen (on brief), Minneapolis, MN, for defendants and appellants.
Matthew A. Sagsveen, Office of Attorney General, Bismarck, ND, for amicus curiae State of North Dakota.
Courtney Koebele, Bismarck, ND, Mark A. Behrens and Cary Silverman, Washington, DC, for amicus curiae North Dakota Medical Association.
Timothy Q. Purdon, Bismarck, ND, and Glenn A. Danas, Los Angeles, CA, for amicus curiae North Dakota Association for Justice.
[¶1] Dr. Allen Booth and St. Alexius Medical Center appeal from a district court judgment finding North Dakоta‘s noneconomic damages cap in medical malpractice cases unconstitutional. Dr. Booth and St. Alexius also argue the district court erred in denying a motion for a new trial. We reverse in part, affirm in part, and remand for a reduction of the award of noneconomic damages.
I.
[¶2] On May 29, 2012, Chenille Condon gave birth to a child at St. Alexius Medical Center. Within hours, Condon complained about chest discomfort and shortness of breath. A pulmonary embolism was suspected and testing was ordered in an effort to diagnose the issue. Testing revealed multiple pulmonary nodules in Condon‘s mediastinum. Condon was eventually referred to Dr. Booth for a mediastinoscopy for the purpose of collecting a larger tissue sample. The larger tissue sample was necessary for a definitive diagnosis.
[¶3] Not long into the procedure, an injury occurred to Condon‘s right innominate artery, resulting in life-threatening bleeding. Dr. Booth called for the assistance of a surgeon, and they repaired the injured vessel. After surgery, Condon was placed in intensive care where she had a stroke. The stroke was related to the injury that occurred during surgery. Condon underwent rehabilitation for several months.
[¶4] Condon filed a medical malpractice claim against Dr. Booth. After nine days of proceedings, the jury returned a verdict finding negligenсe and awarding Condon $265,000 in past economic loss, $1.735-million in future economic loss, $150,000 in past noneconomic loss, and $1.350-million in future noneconomic loss.
[¶5] Dr. Booth sought a reduction of noneconomic damages under
[¶6] Dr. Booth also sought a new trial or, in the alternative, a reduction in the verdict. The district court denied the motion for a new trial, but granted the request to reduce the past-economic-loss award to $150,000.
[¶7] Dr. Booth argues the district court erred in holding
Whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal. All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution. The justice, wisdom, necessity, utility аnd expediency of legislation are questions for legislative, and not for judicial determination. This Court exercises the power to declare legislation unconstitutional with great restraint. Under
N.D. Const. art. VI, § 4 , this Court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide.
Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d 505 (citations and quotations omitted).
[¶8] “[A]n Act of the legislature is presumed to be correct and valid, and any doubt as to its constitutionality must, where possiblе, be resolved in favor of its validity.” S. Valley Grain Dealers Ass‘n v. Bd. of Cty. Commʼrs, 257 N.W.2d 425, 434 (N.D. 1977). “A statute enjoys a conclusive presumption of constitutionality unless it is clearly shown that it contravenes the state or federal constitution.” Richter v. Jones, 378 N.W.2d 209, 211 (N.D. 1985).
[¶9]
[¶10] The standard of review of a question under equal-protection analysis is dependent on the type of classification. Hanson v. Williams Cty., 389 N.W.2d 319, 323 (N.D. 1986). When a classification involves a “fundamental interest” or is “inherently suspect,” we will analyze these classifications under strict scrutiny. Id. When there is “an important substantive right” involved in the classification, an intermediate standard of review is applied. Id. at 325. Lastly, if there is no fundamental or important substantive interеst involved, we will consider the classification under a rational basis standard, where the legislation will be sustained unless it is “patently arbitrary and bears no rational relationship to a legitimate government interest.” Id. at 323. This level of scrutiny is generally applied when “statutory classifications [] involve economic or social matters and do not deprive a class of plaintiffs from access to the courts.” Bismarck Pub. Sch. Dist. 1 v. State, 511 N.W.2d 247, 257 (N.D. 1994).
III.
[¶11] In Arneson v. Olson, this Court held a previous statutory damage cap of $300,000 in medical malpractice actions violated equal protection under the intermediate level of scrutiny. 270 N.W.2d 125, 135-36 (N.D. 1978). The legislative goals of the prior statute included the availability of competent medical and hospital services at reasonable costs, the elimination of the expenses involved in non-meritorious malpractice claims, the allowance of adequate compensation for patients with meritorious claims, and the encouragement of physicians to practice medicine in North Dakota. Id. at 127. We concluded there was not a sufficiently close correspondence between those goals and the
[¶12] Section
With respect to a health care malpracticе action or claim, the total amount of compensation that may be awarded to a claimant or members of the claimant‘s family for noneconomic damage resulting from an injury alleged under the action or claim may not exceed five hundred thousand dollars, regardless of the number of health care providers and other defendants against whom the action or claim is brought or the number of actions or claims brought with resрect to the injury. With respect to actions heard by a jury, the jury may not be informed of the limitation contained in this section. If necessary, the court shall reduce the damages awarded by a jury to comply with the limitation in this section.
Condon argues
[¶13] Regardless of the distinctions between the prior and current damage caps,
[¶14] The legislature enacted
[¶15] Many of the issues with the Arneson cap are also present in the current cap. The legislative history of
[¶16] We conclude there is a close correspondence between the damage cap at issue in this case and legitimate legislative goals to satisfy the intermediate level of scrutiny under
IV.
[¶17] Dr. Booth argues the district court erred in not ordering a new trial because there were procedural irregularities, excessive damages, insufficient evidence to support the damages awarded, and prejudicial errors of law that occurred at trial. “A district court‘s decision whether to grant or deny a new trial under
A.
[¶18] Dr. Booth argues the district court erred in finding Condon established proper foundation for аdmission of the life care plan. Dr. Booth asserts the testimony of Dr. Andrews was too speculative to be considered by a jury. “[F]or a plaintiff to recover for future medical services, there must be substantial evidence to establish with reasonable medical certainty that such future medical services are necessary.” Erdmann v. Thomas, 446 N.W.2d 245, 247 (N.D. 1989). Testimony from a physician that a plaintiff‘s medical condition is permanent and would worsen is sufficient to establish fоundation for future medical expenses. South v. National R. R. Passenger Corp., 290 N.W.2d 819, 842 (N.D. 1980).
[¶19] Here, while Dr. Andrews did refer to the plan as a recommendation, Dr. Andrews also testified he could give opinions about Condon‘s injury to a reasonable medical probability. Dr. Andrews went on to testify he had reviewed the life care plan and the recommendations contained
B.
[¶20] Dr. Booth argues the district court erred in finding Condon laid proper foundation for prior medical expenses. “Evidence of medical expenses can be admitted without expert medical opinion that the expenses were necessitated by the defendant‘s cоnduct . . . .” Schutt v. Schumacher, 548 N.W.2d 381, 382-83 (N.D. 1996). Here, Condon testified she reviewed the medical bills and the bills were related to her stroke. This is proper foundation under Schutt, and the district court did not err in admitting the evidence and did not abuse its discretion by failing to order a new trial.
C.
[¶21] Dr. Booth argues Condon‘s counsel‘s repeated incidents of misconduct entitle him to a new trial. While Dr. Booth concedes none of these incidents would suffice as a basis for a new trial independently, he asserts that the totality-of-the-misconduct should result in a new trial. The alleged misconduct consists of asking impermissible questions of witnesses, inappropriate comments, and responding inappropriately to objections.
[¶22] New civil trials are rarely granted on the basis of attorney misconduct. Fox v. Bellon, 136 N.W.2d 134, 139-40 (N.D. 1965). When considering claims of prejudicial misconduct, courts consider the nature of the comments the jury heard, their probable effect on the jury in the context of the entire trial, and the district court‘s instructions to the jury. Holte v. Carl Albers, Inc., 370 N.W.2d 520, 527 (N.D. 1985). Here, the jury was given an instruction stating:
An attorney is an officer of the Court. It is an attorney‘s duty to present evidence on behalf of a client, to make proper objections, and to argue fully a client‘s cause. However, the argument or other remarks of an attorney. . . must not be considered by you as evidence.
If counsel or I have made any comments or statements concerning the evidence which you find are not supported by the evidence, you should disregard them and rely on your own recollection or observation.
If counsel has made any statements as to the law which is not supported by these instructions, you should disregard those statements.
[¶23] Dr. Booth‘s counsel reminded the jury of their duty multiple times. The district court also analyzed the effects of the alleged misconduct independently and collectively. The court was in a bеtter position to determine the effects of the alleged misconduct and found any misconduct did not “rise to the level of a fundamental defect or occurrence in the proceedings.” The court did not abuse its discretion by failing to order a new trial based on misconduct of Condon‘s counsel.
D.
[¶24] Dr. Booth argues the district court abused its discretion in denying a new trial on grounds the court inappropriately excluded relevant evidence about Condon. Dr. Booth asserts that limiting evidence regarding Condon‘s prior personal issues did not allow the jury an accurate account of Condon‘s pre-stroke life.
[¶25] Under
[¶26] Dr. Booth sought to introduce evidence concerning Condon‘s prior substance abuse and domestic issues. Condon‘s prior substance abuse and domestic issues were irrelevant to whether Dr. Booth was negligent. However, the information was relevant to damages incurred because it tended to make a fact of consequence (the damages sought) less likely to be accurate because there were barriers to Condon remaining continually employed. That being said, the district court noted
E.
[¶27] Dr. Booth argues the district court erred in allowing neuropsychologist Dr. Rodney Swenson to provide medical-opinion testimony. Dr. Booth asserts Dr. Swenson‘s testimony concerned an area beyond his area of expertise because he does not have a medical degree, and this error entitles him to a new trial.
[¶28] Dr. Swenson testified regarding Condon‘s MRI. Dr. Swenson is a clinical neuropsychologist who regularly reviews MRI‘s as part of his profession. Expert testimony is admissible whenever specialized knowledge will assist the trier of fact. Kluck v. Kluck, 1997 ND 41, ¶ 7, 561 N.W.2d 263. “Whether a witness is qualified as an expert and whether the testimony will assist the trier of fact are decisions largely within the sound discretion of the trial court.” Id. A decision to admit expert testimony is reviewed for abuse of discretion only. Id. A trial court “does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification.” Myer v. Rygg, 2001 ND 123, ¶ 15, 630 N.W.2d 62.
[¶29] Here, Dr. Swenson had еxperience analyzing MRI‘s and his opinion would have been helpful to the trier of fact with
F.
[¶30] Dr. Booth argues there is insufficient evidence to support the jury‘s verdict and that the verdict is excessive. A court should not disturb a jury‘s damages verdict unless it is so excessive or inadequate as to be without support in the evidence. Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 753 (N.D. 1989). In determining the sufficiency of the evidеnce to support a jury‘s award of damages, the court must view the evidence in the light most favorable to the verdict. Olmstead v. First Interstate Bank, 449 N.W.2d 804, 807 (N.D. 1989). Where the verdict is “reasonably within the scope of the evidence presented and the instructions of the court[,]” the plaintiff is entitled to have judgment entered upon the jury‘s verdict. Neidhardt v. Siverts, 103 N.W.2d 97, 101 (N.D. 1960).
[¶31] Here, the jury heard testimony about Condon‘s medical bills and potential lost wages. The jury also heard testimony regarding the effects the incident had on Condon‘s day-to-day life. While the verdict is large, the damages are within the range of the evidence the jury heard at trial. The damages are also reasonable considering the testimony evidencing the devastating effect the injury had on Condon‘s life.
[¶32] Dr. Booth also motioned the district court for a remittitur. This Court has previously stated:
If the size of the verdict in relation to the injury sustained is so excessive as to demonstrate to the court that the jury has been misled by passion or prejudice in determining the amount of damages, the trial court should grant a new trial or reduce the verdict, and, in a case where it appears that the passion and prejudice affected only the amount of damages allowed, and did not influence the findings of the jury on other issues in the case, the error resulting from the excessive damages may be corrected either by the trial court or by this сourt on appeal by ordering a reduction of the verdict in lieu of a new trial, or by ordering that a new trial [b]e had unless the party in whose favor the verdict was given remit the excess of damages.
[¶33] Here, as discussed above, the verdict was substantial, but not excessive. The damages awarded were within the range of the evidence presented, and Condon‘s life was significantly affected by what the jury determined to be medical negligence. The verdict was not so excessive or inadequate as to be without support in the evidence, and the district court did not err in failing to reduce the damages awarded or abuse its discretion by failing to order a new trial.
V.
[¶34] We conclude the damage cap in
Daniel J. Crothers
I concur only in the result.
Jerod E. Tufte
Donovan J. Foughty, D.J.
Gerald W. VandeWalle, C.J.
[¶36] The Honorable Donovan J. Foughty, D.J., sitting in place of McEvers, J., disqualified.