Richard H. HEITZ, as surviving spouse and Personal Representative of the Estate of Mary Jane Heitz, deceased; Richard H. Heitz, Jr., Russel Todd Heitz and Robin Irene Heitz, children and heirs of deceased, Plaintiff-respondents, v. E.G. CARROLL, M.D., and Mrs. E.G. Carroll, husband and wife, Defendant-appellants.
No. 17355.
Supreme Court of Idaho.
Feb. 27, 1990.
788 P.2d 188
It now appears that the Court on occasion will defer to the Court of Appeals notwithstanding the fact that the three judges of that court are in disagreement concerning an issue of law which this Court has not decided. This practice does not comport with reason or common sense, to say nothing of the fact that there is no precedent for such deference in any jurisdiction, excepting Idaho, and that precedent‘s parentage remains somewhat in doubt. State v. Prestwich, 116 Idaho 959, 783 P.2d 298 (1989) (Bistline, J. specially concurring).1 See also 20 Am.Jur.2d Courts § 201 (1965). In at least one jurisdiction, a dissent by one member of an intermediate appellate court makes review by the Supreme Court of that state automatic. Maladowitz v. Coley, 47 N.J. 55, 219 A.2d 177 (1966).
In State v. Osborn, 104 Idaho 809, 663 P.2d 1111 (1983) this Court, differently constituted, took exceptional pains to let it be known that it, being the court of last resort in Idaho, is the Court which establishes legal precedent for the state and, hence, the Court which should be addressing new questions of law.2 Further, it is this Court to which the Court of Appeals, district courts, and the members of the bar and of the public should be able to look for guidance and definitive decisions. Otherwise, neither the members of the Court of Appeals nor any other participants in the judicial system can be certain about the effect of our decisions or theirs. The resulting confusion violates one of the central purposes of our three-tier legal system, namely that of settling questions of law so that the trial bar and trial bench are able to proceed accordingly.
The defendant in this case was convicted of aggravated battery as being a lesser included offense of the charge of rape. He contends that aggravated battery is not such a lesser included offense, and that this is not an issue which we have previously had the opportunity to consider. In addition, Judge Swanstrom has written a persuasively reasoned dissent which questions whether the evidence and the jury instructions supported a conviction of aggravated battery or only a conviction of aggravated assault. Both are issues which merit the attention of a state‘s court of last resort.
Quane, Smith, Howard & Hull, Boise, for appellants. Kathryn A. Sticklen argued.
Smith & Peart, Fruitland, and Richter-Wimberley, Spokane, Wash., for respondents. F.G. Fancher argued.
BAKES, Chief Justice.
Plaintiffs/respondents sued defendants/appellants to recover for medical malpractice and for the wrongful death of Mary Heitz. The case was tried, and the jury rendered a verdict for defendants. Plaintiffs then moved for a j.n.o.v. or, in the alternative, for a new trial. The j.n.o.v. motion was denied, but the new trial mo-
I
Mary Heitz had been a patient of Dr. Eugene Carroll since 1965. On June 3, 1981, Mary went to Dr. Carroll for a physical examination and pap smear. At that time, upon a routine urinalysis, a microscopic trace of blood was discovered which Dr. Carroll attributed to menstrual bleeding. Almost a year later, on April 19, 1982, Mary returned with complaints of lower abdominal pain. A second urinalysis showed microscopic moderate blood in the urine, and Dr. Carroll diagnosed it as diverticulitis.
Almost fifteen more months passed and on July 7, 1983, Mary went to Dr. Carroll‘s office with complaints of burning on urination for two days. Her urinalysis again showed microscopic blood, as well as white blood cells. Dr. Carroll diagnosed a urinary tract infection and treated Mary with antibiotics. He also, by routine practice, would have advised Mary to return upon completion of the medication, but his notes do not indicate that he did. Mary did not return, but instead appeared on August 5, 1983, for an unrelated reason and did not mention any urinary complaints.
The next time Mary complained of urinary symptoms was March 8, 1984. An antibiotic was again prescribed. She returned on March 30, and again on April 23, 1984, for an unrelated reason, but expressed no urinary complaints. Then, on April 26, 1984, she returned with complaints of urination frequency and burning upon urination. A microscopic evaluation revealed a few red blood cells and numerous white blood cells. An antibiotic was again prescribed.
On July 19, 1984, Mary returned complaining of urinary tract symptoms over the summer. At that time there was less microscopic blood in the urine than had
On October 11, 1984, Mary went to the emergency room at Holy Rosary Hospital in Ontario, Oregon, with visible blood in her urine. The doctor there did an exam, performed some tests, gave her an antibiotic and a pain killer, and instructed her to follow up with Dr. Carroll. Instead of returning to Dr. Carroll, Mary consulted Dr. Bockenstette, a urologist in Nampa, Idaho, on October 16, 1984. Dr. Bockenstette treated her for a urinary infection by prescribing antibiotics and asked her to return for a follow-up visit.
On October 18, 1984, Mary went back to Dr. Carroll complaining of pain in her right arm above the elbow. Dr. Carroll‘s records make no note of any urinary tract problem. Dr. Carroll does not remember whether he inquired as to the hospitalization, though he was aware of it because the hospital had reported Mary‘s visit to him earlier.
Mary returned to Dr. Bockenstette when the urinary tract problem did not resolve itself, and Dr. Bockenstette performed X-rays of Mary‘s bladder (IVP‘s) on November 6, 1984, and discovered a tumor. Subsequently, a cystoscopy and biopsy was performed and the tumor was diagnosed as bladder cancer. There was also evidence of spread, or metastasis, to the bone in the right arm, causing the pain for which Mary had seen Dr. Carroll earlier.
After consultation with Dr. Donald Skinner, professor of surgery and chairman of the Division of Urology at the U.S.C. School of Medicine, a treatment program was set up. It consisted of (1) a series of chemotherapy and radiation treatments, and (2) surgery in May, 1985, to remove the anterior pelvic organs, including the bladder, the urethra portion of the vagina, the right kidney and ureter, and the lymph nodes. In addition, an artificial bladder was constructed from part of Mary‘s intestine.
In the fall of 1985, Mary developed headaches and was diagnosed as having a brain tumor. There was expert testimony that the tumor was a metastasis from the bladder cancer. She had surgery to remove the tumor and subsequently underwent radiation therapy until January 21, 1986.
Mary died 28 days later. Following Mary‘s death, an autopsy was performed by Dr. Donndelinger. The autopsy indicated that the cause of death was a large blood clot that plugged the arteries from the right side of the heart to the lungs.
Plaintiffs brought this action to recover for the wrongful death of Mary Heitz, allegedly caused by Dr. Carroll‘s negligence. At trial Dr. Donndelinger testified that Mary‘s blood clots were due to her inactivity occasioned by the treatment of her brain tumor. Both Dr. Donndelinger and Dr. Skinner testified that in their opinion Mary‘s death was a result of complications arising out of her bladder cancer. The defendants presented no witnesses to testify on the cause of death, although through cross examination, they established that Mary‘s obesity may have been a factor.
The case was submitted to the jury on interrogatories contained in a special verdict form. At issue here is the first question on the special verdict form which reads:
QUESTION NO. 1: Was there negligence, as a health care provider, on the part of the defendant E.G. Carroll, M.D., which was a proximate cause of the death of Mary Heitz?
Answer: YES ____ NO ____
After some deliberation, the jury submitted the following written question to the trial judge:
Your Honor!
Can you clarify Question No. 1 as to whether Dr. Carroll can be negligent without being responsible for her death?
A.J. Hendricks
Foreman
The district judge, Hon. Wayne P. Fuller, answered the question as follows:
Question No. 1 requires you to decide two things:
Was there negligence, as a health care provider, on the part of Dr. Carroll, - Which was a proximate cause of the death of Mary Heitz.
Please review the applicable instructions and make your decision in accord with your factual findings.
November 18, 1987
5:50 p.m.
Wayne P. Fuller
District Judge
Within a short period of time the jury returned its special verdict, in which only three jurors answered “yes,” and nine jurors answered “no,” to Question No. 1 of the Special Verdict Form. Accordingly, the trial judge entered judgment in favor of the defendants.
Five days later, plaintiffs moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial. A hearing was held on the motions. The court found, based upon an analysis of all the evidence presented, that there was substantial evidence upon which the jury could have found in favor of the defendants as it did. Accordingly, the motion for j.n.o.v. was denied. The court, however, took under advisement the alternative motion for a new trial. Defendants’ counsel then lodged a memorandum in opposition to granting a new trial. Plaintiffs did not submit any additional written arguments. The district judge ultimately filed a memorandum decision and order granting plaintiffs’ motion for a new trial because, inter alia, he found that the verdict was against the clear weight of the evidence, and, alternatively, “[t]he special verdict form was erroneous in that it did not permit the jury to consider awarding damages to the Plaintiffs for the medical expenses incurred prior to death caused by the spread of the cancer; these medical expenses would be recoverable without finding a proximate cause between any negligence and the death of MH [Mary Heitz].” Defendants/appellants now appeal from the trial court‘s order granting a new trial.
II
Appellant raises several issues regarding the propriety of the trial judge‘s ruling on the plaintiff-respondent‘s motion for new trial. Appellant alleges that the trial court made an error in law when it concluded, in the post trial proceedings, that the interrogatories in the special verdict form, “did not permit the jury to consider awarding damages to the Plaintiffs for the medical expenses incurred prior to death,” irrespective of the jury‘s finding that there was no negligence on the part of the defendant, Dr. Carroll, which was a proximate cause of the death of the plaintiff Mary Heitz. The trial court sua sponte concluded that the jury had been improperly instructed, and that conclusion figured into the trial court‘s analysis in granting the new trial.1 However, we conclude that the trial court erred in its conclusion that the interrogatories in the special verdict were grounds for granting a new trial.
This Court has long recognized that “the parties to an action are bound by the theory on which they try it.” Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 776, 22 P.2d 147, 150 (1933); Aetna Casualty & Surety Co. v. Wedgwood, 57 Idaho 682, 687, 69 P.2d 128, 129 (1937). In this case both parties submitted the case to the jury with requested instructions and proposed special verdict interrogatories which advised the jury that in order for the plaintiffs to recover it was necessary for them to prove that the negligence of Dr. Carroll was “a proximate cause of the death of Mary Jane Heitz.” (Emphasis added.) Plaintiffs’ requested special verdict form included the further direction that “[i]f you answered the above question ‘No,’ then simply sign the verdict form and inform the bailiff that you are done.”
The case was tried as a wrongful death action though it had not always been prosecuted that way. Plaintiff Mary Heitz first filed her complaint on January 20, 1986, as
Plaintiff‘s first set of requested instructions, submitted to the trial court on October 26, 1987, included a special verdict form which did not request the jury to make a finding regarding wrongful death, but did request it to determine whether Dr. Carroll was negligent in his diagnosis and, if so, whether that negligent diagnosis was a proximate cause of the delayed diagnosis of Mary‘s cancer. The special verdict also submitted the question of Mary‘s contributory negligence to the jury.
Thereafter, on November 2, 1987, plaintiffs submitted a new proposed special verdict form which substantially changed the issue plaintiffs wanted submitted to the jury. That special verdict form, in Question No. 1, asked the jury whether the defendant, Dr. Carroll, was negligent, and whether that negligence was “a proximate cause of the death of Mary Jane Heitz?” The jury was told, as part of Question No. 1, that “[i]f you answered the above question ‘No,’ then simply sign the verdict form and inform the bailiff that you are done.” The defendants requested a similar special verdict form, containing a special interrogatory paralleling that requested by plaintiffs.
At the end of the trial, at the instruction conference, the court reviewed with the attorneys the court‘s proposed instructions to be submitted to the jury. As part of that process, the court and the attorneys reviewed Instruction 23, which informed the jury regarding each of the elements plaintiffs needed to prove in order to recover. One of those elements was that “the negligence of the defendant was a proximate cause of the death of Mary Heitz.” The jury was then told, “[i]f you find, from the evidence presented, that the plaintiffs have proven each of the foregoing propositions by a preponderance of the evidence, you will answer the special verdict form in accord with those findings. If, however, the plaintiffs have failed to prove one or more of these propositions, you will answer the special verdict form in accord with those findings.” The record reflects that Instruction 23, which followed plaintiff‘s second proposed special verdict form, was not objected to by the parties.
Again, in Instruction 25, the court instructed the jury that “the Plaintiffs have the burden of proving that the [Defendants‘] failure to meet the applicable standard of practice was a proximate cause of the death of Mary Jane Heitz and damage to the Plaintiffs, and the amount thereof.” (Emphasis added.) Plaintiffs did object to Instruction 25, but their objection was only that it repeated the instructions contained in No. 23, and therefore it placed undue emphasis on plaintiffs’ burden.2 However, both Instruction 23 and Instruction 25 were given by the court.
The special verdict form submitted to the jury by the trial court followed the language contained in the special verdict form requested by both the plaintiffs and the defendants, and asked, in Question No. 1, “Was there negligence, as a health care provider, on the part of the defendant E.G. Carroll, M.D., which was a proximate cause of the death of Mary Heitz?” (Emphasis added.) Nine jurors answered the question “no,” and three jurors answered “yes.” The jury was then advised that “[i]f you answered ‘No’ to Question No. 1,
In ruling upon the plaintiffs’ motion for new trial, the trial court concluded, apparently sua sponte, that the plaintiff Mr. Heitz could have had a claim for medical expenses irrespective of whether Dr. Carroll‘s alleged negligence was a proximate cause of the death of Mary Heitz. For that reason, and for the additional reason that the trial court thought the verdict was against the clear weight of the evidence, the trial court granted the plaintiffs’ motion for new trial.
In order to grant a new trial on the ground of “[i]nsufficiency of the evidence to justify the verdict or other decision, or that it is against the law,”
The trial court‘s finding that a retrial would produce a different result in this case was based upon his erroneous conclusion that the special verdict form “did not permit the jury to consider awarding damages to the Plaintiffs for the medical expenses incurred prior to death caused by the spread of cancer.” Where a plaintiff has chosen to submit his case upon certain issues or theories, they are bound by those choices, and it is error for the trial court to afterward grant one party a new trial on the basis that the plaintiff might have prevailed had it raised a different issue. M.K. Transport, Inc. v. Grover, 101 Idaho 345, 349, 612 P.2d 1192, 1196 (1980) (“Where nothing in the record indicates that an unpleaded issue was litigated at trial, it is error for the trial court to base its decision on the unpleaded issue.“). Plaintiff elected to proceed solely as a wrongful death action, and submitted a special verdict form which required the jury to find that the negligence of Dr. Carroll was a proximate cause of the death of Mary Heitz in order for the plaintiffs to recover any damages. “[O]ur cases clearly reject the notion that one may assert as error the trial court‘s instructing in language which that person has specifically requested the court to give, regardless of whether it was a correct statement of the law.” McBride v. Ford Motor Co., 105 Idaho 753, 762, 673 P.2d 55, 64 (1983). The trial court, in ruling on the motion for new trial, erred in concluding that the special verdict form should have included other legal theories than those which the parties chose to submit to the jury.
The trial court‘s order granting plaintiffs’ motion for new trial is reversed. The case is remanded to the trial court to rule again on the motion for new trial without considering the fact that the court‘s special verdict form did not submit to the jury the question of whether damages in the form of medical expenses could have been found by the jury irrespective of whether the jury found negligence on the part of Dr. Carroll which was a proximate cause of the death of Mary Heitz.
Reversed and remanded. Costs to appellants, no attorney fees on appeal.
BISTLINE, JOHNSON, BOYLE and MCDEVITT, JJ., concur.
BISTLINE, Justice, specially concurring.
PART I.
I have concurred in the opinion of Chief Justice Bakes, primarily because of my confidence that the district judge will arrive at the correct response to this Court‘s direction to rule again on the motion for new trial by excluding that matter which Justice Bakes has delineated in the final paragraph of the Court‘s opinion. Nevertheless I feel compelled to state that the Court could be heading this case in a more direct route.
Assuming that the district court reasons anew as directed, and continues to believe that there should be, and accordingly grants, a new trial, that order will be just as appealable as the order which the Court today has now reversed. It would seem that interminable delays are a bane to the administration of justice, and many are the cases which have so observed. If commanding a majority, my preference would be that we allow the order awarding a new trial to stand; otherwise put, that we affirm. Were that to be our chosen course, both the plaintiffs and Dr. Carroll would benefit by not having this controversy drag on. A trial can readily be had. If, as might seem indicated by the results of the first trial, the doctor again gets the jury‘s nod, it is highly likely that the controversy will be put to rest, assuming that respective counsel are careful to avoid interjecting prejudicial error during the trial proceedings.
Moreover, there is additional good reason for proceeding as I suggest. The Court has in recent years wrestled with a number of appellate cases wherein we reviewed grants or denials of motions for a new trial. Much law has been written, but seldom have all members of the Court agreed as to exactly what the law is. This has been recently brought rather forcibly to our attention by an opinion thirty-one pages in length written by an eminent district judge of the First Judicial District. On any view of the facts of the case before us, my view of the state of the law in Idaho
PART II.
Multiple issues are raised on appeal. Each will be discussed in turn.
CONSTITUTIONAL VIOLATIONS
Appellants first assert that
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.
7. . . . Any motion based on subdivisions 6 or 7 must set forth the factual grounds therefor with particularity. . . .
It has already been decided that
The constitutional right of trial by jury has been interpreted to secure that right as it existed at common law when the Idaho Constitution was adopted. [Citations omitted.] Before Idaho became a state, our territorial Supreme Court had recognized the trial court‘s discretionary function in ruling upon new trial motions. . . . Thus the constitutional right to trial by jury in civil cases, under the state constitution, is subject to the trial court‘s discretionary power to grant a new trial.
NEW TRIAL STANDARD
At the hearing before this Court appellants also argued that the standard now employed in ruling on directed verdicts and j.n.o.v.‘s, i.e., whether there is substantial competent evidence to sustain the jury‘s verdict, Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984), should also apply to analyzing motions for a new trial. That argument is without merit. “[T]he two motions have wholly distinct functions and different standards govern their allowance.” Quick v. Crane, 111 Idaho at 766, 727 P.2d at 1194. As succinctly stated in Blaine v. Byers, 91 Idaho 665, 671, 429 P.2d 397, 403 (1967),
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 preserved by vacating it, or when the verdict is not in accord with either law or justice.
This standard has recently been affirmed in Hinman v. Morrison-Knudsen Co., Inc., 115 Idaho 869, 771 P.2d 533 (1989), and we have been presented with no compelling reasons to deviate from it.
Appellants’ major contention is that under the present interpretation of
In affirming the grant of a new trial in Hinman, this Court first noted that, as stated in Blaine,
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 preserved by vacating it, or when the verdict is not in accord with either law or justice. (Emphasis added.)
Hinman, 115 Idaho at 870, 771 P.2d at 534, quoting Blaine v. Byers, 91 Idaho at 671, 429 P.2d at 403. We then stated that “[t]his Court has held that a trial court has broad discretion as to a motion for a new trial, and that discretion will be upheld unless the trial court has manifestly abused its discretion.” Id. (citations omitted). In Hinman we held that the grant of the new trial should be affirmed where the record provided no basis for a conclusion that the trial judge manifestly abused his discretion.
The same analysis should apply in the instant situation. The trial judge here set forth the basis for granting plaintiffs’ motion for a new trial. After a thorough review of all the evidence, the trial court found:
- The clear weight of the evidence shows: EGC [Eugene G. Carroll] failed to use a differential diagnosis in treating MH [Mary Heitz] for her bladder infections in the spring and summer of 1984. EGC failed to do follow-up tests or to refer MH to a specialist when this bladder infection continued; the applicable community standard of care was breached by these failures; such failures directly resulted in a delayed diagnosis of bladder cancer and to the spread of the cancer to other parts of the body of MH, including her shoulder and brain; such failures were a substantial factor in the death of MH in February, 1986; that MH died while at home recovering from cancer treatments on her brain when a large blood clot from her legs passed through her heart and into her lungs; that the risk of death from complications proximately caused by spread of the bladder cancer was foreseeable although the manner in which it occurred may not have been; that but for the spread of the cancer to the brain of MH, she would be alive at time of trial.
- The clear weight of the evidence further shows: prior to her death, MH incurred medical expenses proximately caused by the spread of the bladder cancer and not caused by the cancer itself. This Court concludes the verdict was against the clear weight of the evidence.
. . . .
This Court further finds: that the clear evidence at the trial showed a proximate cause between any alleged negligence of EGC and the death of MH; it is likely a new trial would lead to a different result; that Plaintiffs will probably recover at least the medical expenses incurred prior to death caused by the spread of the cancer.
R. 256-258.
With the above quoted statements in his memorandum decision and order, the trial judge adequately set forth the basis for his ruling granting the motion for a new trial and, on this record, there is no basis for
I trust that the trial court‘s reasoning on remand will continue to reflect the same thoughtfulness demonstrated by its prior decision granting a new trial. For that reason I concur with the result reached by the majority.