*1 STEARNS, Appellant, Kathryn PLUCINSKI, M.D.,
Dominic A. al., Respondents,
et Memorial Medical
North
Center, Defendant.
No. C1-91-1167. Appeals of Minnesota.
Court
March 1992. April
Review Denied Kirshbaum, Minneapolis,
Mitchel I. Kathryn Stearns. Candlin, Bloomington,
Bruce P. for Do- Plucinski, minic A. M.D. KLAPHAKE,
Considered and decided P.J., SCHUMACHER, and PARKER and JJ.
OPINION SCHUMACHER, Judge.
Appellant Kathryn respon- Stearns sued mal- dent Dominic Plucinski for medical neg- practice. juryA found ligent Appel- judgment was entered. lant that she was denied a fair contends *2 counsel the nothing contra- asked more about gave trial court trial the com-. examination, mittee. Then on re-direct re- prej- admitted instructions and dictory jury spondent’s respondent counsel to asked af-We testimony into evidence. udicial Respondent the state function of the CVC. firm. that its was to answered function review procedures. charts of cardiovascular Over FACTS appellant’s objection, respondent’s attorney appel- on Respondent performed surgery what, respondent any, if sanctions asked lant, for the Hospital, at North Memorial against of were taken him as a result the purpose inserting pacemaker. a cardiac of appellant’s surgery. review committee’s of at- Appellant’s complaint alleged that while replied that there were no Respondent right penetrate her tempting to locate and sanctions. needle, respondent a subclavian vein with deliberations, jury began the its Before lung, caus- right her negligently punctured instructed on the doctrine res the court hemothorax, and ing and pneumothorax a Practice, per 4 Minnesota right damage to her causing permanent (1986).1 appel- over The CIV. JIG plexus nerves. brachial objection, gave 4 lant’s also Minnesota trial, Marilyn At Ezri and Dr. James Dr. Practice, pro- (1986) JIG CIV. appellant. Hult testi- Hult Dr. testified injury “The mere fact that an has vides: hemothorax pneumothorax fied and that any- not mean that happened does of itself proce- risks of this negligent.” are avoidable The re- considered one has been dure, special finding into there is no reason to come turned a verdict that negligent. lung plexus or with the the brachial contact nerve, per- procedure that if the and alleging new trial Appellant moved for a formed in accordance with the permitting court re- that the trial erred hemothorax, care, nor neither a standard of testify to no sanctions were spondent that inju- plexus nor a pneumothorax, brachial by on him the Cardiovascular imposed ry Dr. Ezri also testified Committee, should occur. the Coordinating and that court res giving ipsa that care is used and the standard the both the if due erred instruction, observed, loquitur and the instruction injury no to care there should be injury an happening mere does that the nerves, plexus and that occur- the brachial anyone negligent. The that not mean pneumothorax hemothorax or rence of a motion for a appellant’s denied trial court extremely rare. would be trial, reasoning that the instructions new witness, expert Dr. Scott Respondent’s a correct state- jury conveyed the given to pa- that of the Sharkey, testified the risks proper law and that it was ment of the pneumothorax, hemotho- developing tient respondent’s testimony about admit during the plexus injury rax and brachial “opened the fact CVC are implant procedure known. testimony cross-exami- to that on the door” cross-examining appel- respondent, While appeal is taken from trial nation. This him Memorial asked if North lant’s counsel motion for a appellant’s denial court’s Respon- Hospital a CVC committee. had new trial. did, appellant’s that it and dent answered ISSUES Respondent asked what was. counsel giving by trial err it was the Cardiovascular 1. Did the court answered that loquitur instruction ipsa both the Appellant’s Coordinating Committee. 3)That resulted you the condition which happening injury itself 1. From the plaintiff negligent injury if the defendant was was not due to the conduct find that you following three conditions person. find that third or some have been satisfied: you plaintiff established all find that has If 1) accident kind which That the was the elements, permit- you are three of the above ted, negligence. occur without someone’s does not negli- you required find are 2) exclusive needle] That was in the [the gence. negli- at of defendant the time of the control act, any, gent happened. must added) Id. (emphasis (quoting occurrence Cameron the instruction that Evans, any- mean injury not of itself an does (1954)). negligent? one was loquitur and JIG allowing err trial court Did the *3 appear given together instructions to no sanctions testify that respondent to conveyed of law in a correct statement the imposed by him the Cardiovascular were on loqui- ipsa this The court’s case. trial res Coordinating Committee? tur as follows: instruction was happening injury the itself From ANALYSIS you may find that the defendant was argues the court that Appellant 1. following you if that negligent find the jury the that should not have instructed has been satisfied: condition injury does not just an occurs because 1) That the the kind accident was (JIG 99) negligent anyone was mean that which does occur without someone’s in- that instruction contradicts the because negligence. (JIG 80) ipsa loquitur struction on res 2) in That the needle was the exclusive jurors find a defendant allows to the control of defendant at the time that injury of an negligent happening from the act, any, hap- negligent if must have any showing negli- itself direct of without pened. gence. 3) the in That condition which resulted injury was due to conduct of the the A court is wide lati trial accorded plaintiff person. or some third phrasing jury. in to tude its instructions the you plaintiff If find has estab- that Co., 274 N.W.2d v. Aetna Ins. Cobb Life elements, all of the above three lished 911, (Minn.1979). 916 It is well-settled you permitted, you re- are are not that: quired negligence. to find charge of court be the trial must “[T]he is not inconsistent with the instruction This prac- from entirety viewed in its and a injury an has that “the mere fact that point tical and common sense of view. any- happened does not of itself mean that The trial court is allowed considerable negligent.” judge one The has been trial used, language in and a new latitude the they that jury instructed the that found if granted requested trial will not be where ipsa they the three res conditions existed gener- are refused when the instructions negligent, infer that could was fairly charge correctly al and states the injured just but that because was required All law. that is is anyone negligent.2 mean does not that was charge conveys as the that the whole is a correct statement of the law. This jury understanding a and correct clear ipsa giv- unnecessary every loquitur instruction was the law. It is that plaintiff proved prima en a facie possible opportunity misappre- necessary for guarded against. If the case for the three conditions hension be This charge fairly lays apply. the law the the doctrine to instruction down case, not in conflict with an additional instruction it is sufficient.” applicability ipsa Many in res cases hold that The of the doctrine of Minnesota order give ipsa loquitur jury instruction to loquitur res the to a set of is a mixed facts fact, of the three res conditions the existence question of law and the deter- while See, Giron, e.g., must be Warrick v. established. the be re- mination whether doctrine 166, (Minn.1980); Young 169 v. under facts of the case must be lied on the 391, 398-99, 713, Caspers, 249 311 Minn. N.W.2d in the first instance the trial made (Minn.1977); Hallum, Fleming 717 v. 350 question the for the fact finder whether is a 417, (Minn.App.1984). N.W.2d This means give to the or conditions which rise facts judge the that before the instructs on res negligence actually exist. inference enough ipsa loquitur there must be evidence Negligence 220.22. § 65A C.J.S. so as to that three conditions exist make it a jury question they as to exist whether or not. Corpus explains: As Juris Secundum However, an hearsay testimony. inadmissible just because that warns that some- the admission of re- mean that inadmissible evidence happens does not injury quires only preju- new trial the error is negligent. one has been 483, dicial. Tappan, Fewell v. 223 Minn. Belshan, 304 Appellant cites v. Orwick 648, (1947). re- After (1975), and Minn. viewing finding that record and Locke, Kuether opinion only was mentioned the CVC argu- (1961), of her support N.W.2d 539 during respondent’s once the trial and that given with 99 must not be ment JIG closing counsel did not refer to it his The issue instruction. argument, say we cannot was whether JIG and Kuether Orwick addition, prejudiced by testimony. this In proof or to pertained to the burden *4 by inquiring during about the CVC cross- unavoidable accident. The the doctrine of examination, appellant arguably opened the pertained supreme court held that JIG 99 testimony door to such on re-direct exami- proof than to the to the rather burden nation. We hold that a new trial is not accident and stat- doctrine of unavoidable justified. ed: “Except the doctrine where involved, almost loquitur is is DECISION [JIG 99] given negligence in cases. It is routinely instruction, cautionary instruction which proper happen- with the instruction that the mere proof do rather has to with burden ing of an accident does not mean that than unavoidable accident.” negligent, conveyed was to the someone Minn, 348, Orwick, at at jury a correct statement of the law. The added) Kuether, (emphasis Minn, (quoting hearsay testimo- trial court’s admission 546-47). 51, 110 N.W.2d at at ny only was mentioned once and was closing argument in not referred to was mean- interpret do not this dictum as We prejudicial error. ing ipsa loquitur instruction the res given with JIG 99. We hold can never be Affirmed. given in case con- that the instructions this veyed a correct statement of the KLAPHAKE, (concurring part, in Judge law. part). dissenting in objection, respon- appellant’s 2. Over majority as to the I concur with the examination that dent testified on re-direct gave The trial court a correct instructions. sanctioned the CVC. he had been I must law. statement discussing The trial in the issue with dissent, however, I be- respectfully counsel, expressed that the testi- concern hearsay of inadmissible lieve the admission inadmissible, ultimately mony de- was regarding the committee’s testimony CVC in since had cided to let charts appellant’s cardiovascular review of by cross-examining re- “opened the door” clearly an abuse of discretion which spondent about the CVC. prejudiced appellant. of evidence on re-direct Admission cross-examination, appellant’s counsel On the sound discre is left within examination com- questions about the CVC asked two Shymanski of the trial court. v. tion mittee: 304, 308, Nash, Doctor, North Memorial Medi- Q. does (Minn.1977). “Generally, during re-di committee? Hospital have CVC cal examination, fully a witness be rect A. Yes. brought as to all matters out examined Whaley, that? Q. State cross-examination.”' What (Minn.App.1986). cardiovas- is the committee The CVC A. coordinating committee. cular Respondent’s testimony that he you, Doctor. Q. by the CVC constituted Thank was not sanctioned nothing asked Appellant’s counsel about function, purpose, committee’s au- In CVC the Matter of the WELFARE S.F., composition, any other OF
thority, or “substan- Juvenile. I fail ex- tive” matter. to see how this No. C0-91-1869. change opened the door admission Appeals Court of Minnesota. clearly hearsay the re- inadmissible as to sults of the committee CVC review. See March 801(c)(hearsay Minn.R.Evid. is out-of-court prove statement offered to truth of matter
asserted). hearsay testimony This was di-
rectly related to the critical issue this
case—the breach of standard of care. strong possibility,
Its created the admission
supported by negligence, the verdict of no hearsay would accord the when, fact,
high probative value it de-
served none. *5 recognize
While I the trial court’s broad matters, evidentiary
discretion in a close
case such as this I believe admission of the
hearsay testimony prejudicial and re-
quires Shaw, trial. Bradley new See 442, 446, 666, Minn. 244 N.W.2d 668-69
(1976) (admission participant’s of accident
hearsay police preju- statement officer case); negligence
dicial close Zubryski v. Co., 450,
Minneapolis Ry. St.
455-56, (1955) (preju- negligence
dice occurred close case
where, upon based ques- cross-examination
tions, jury may wrongfully inferred
expert withholding witness was informa-
tion); Independent Sch. Disk No. St. County Co.,
Louis v. A. Hedenberg & 82, 100, (1943)
Minn.
(erroneous admission of evidence reversible I, prejudice occurs). therefore, respect-
fully dissent.