498 A.2d 334 (N.H. 1985), 84-286, Brann v. Exeter Clinic, Inc.

Docket Nº:84-286, 84-323.
Citation:498 A.2d 334, 127 N.H. 155
Opinion Judge:BROCK, J.
Party Name:Marsha BRANN, Administratrix of the Estate of Robert E. Brann, and Marsha Brann, Individually v. EXETER CLINIC, INC. and Karl L. Singer, M.D.
Attorney:Brown and Nixon P.A., Manchester (Randolph J. Reis & a. on brief, and Francis G. Murphy, Jr., orally), for plaintiff., Sulloway, Hollis & Soden, Concord (Robert M. Larsen (orally), and Irving H. Soden, on brief), for defendants. Brown and Nixon P.A., of Manchester (Randolph J. Reis & a. on the b...
Judge Panel:KING, C.J., did not sit; the others concurred.
Case Date:August 15, 1985
Court:Supreme Court of New Hampshire

Page 334

498 A.2d 334 (N.H. 1985)

127 N.H. 155

Marsha BRANN, Administratrix of the Estate of Robert E. Brann, and Marsha Brann, Individually

v.

EXETER CLINIC, INC. and Karl L. Singer, M.D.

Nos. 84-286, 84-323.

Supreme Court of New Hampshire.

August 15, 1985

Page 335

[127 N.H. 157] Brown and Nixon P.A., Manchester (Randolph J. Reis & a. on brief, and Francis G. Murphy, Jr., orally), for plaintiff.

Sulloway, Hollis & Soden, Concord (Robert M. Larsen (orally), and Irving H. Soden, on brief), for defendants.

BROCK, Justice.

This case involves two actions arising from the same event. The first is a wrongful death action for medical malpractice brought by the plaintiff Marsha Brann in her capacity as administratrix of the estate of her husband, Robert Brann (decedent). The plaintiff claims that the defendants, Dr. Karl Singer and the Exeter Clinic, Inc. (defendants), and Dr. Dennis Carlson (Carlson) failed to properly evaluate a mole which later became malignant. The plaintiff in her individual capacity also sued for loss of consortium under RSA 507:8-a. The trial resulted in a special verdict for the defendants in the wrongful death action in which the jury found that Carlson was 0% negligent, the defendants 49% negligent, and the decedent 51% negligent. On the consortium claim, the jury awarded the plaintiff three hundred thousand dollars ($300,000).

The plaintiff appeals the special verdict, alleging that the Superior Court (Temple, J.) erred both in instructing the jury on the issue of comparative negligence and in failing to set aside or reduce the finding of comparative negligence, absent more than a scintilla of evidence on the issue.

The defendants filed a cross-appeal, arguing that the plaintiff's loss of consortium

Page 336

claim should have been withdrawn from the jury and that the verdict for damages was excessive. For the reasons that follow, we reverse the verdict in the wrongful death action and uphold the verdict in the consortium action.

In September 1978, the decedent visited the office of Dr. Karl Singer, complaining of back problems and depression resulting from a job related injury which had occurred in January 1977. Dr. Singer's examination revealed a "pigmented lesion" on the right upper back. Suspecting that the mole might be a form of cancer called "superficial spreading melanoma," Dr. Singer did a biopsy of the lesion but did not remove the mole completely. He submitted the tissue to Dr. Carlson for analysis and the mole was found to be benign.

In June of 1980, the mole began to swell and bleed. The decedent consulted Dr. Edmund Piper on August 28, 1980. Dr. Piper completely[127 N.H. 158] excised the mole, performed a biopsy and diagnosed it as "malignant melanoma."

During the next twenty months, the melanoma spread to other parts of the decedent's body. He submitted to surgery, chemotherapy, radiation, special diets and other treatments. He also sought out faith healers in Massachusetts and the Philippines in an attempt to cure the disease. After becoming emaciated by the effects of the malignancy, Robert Brann died in April of 1982.

At trial, the evidence on the issue of negligence focused on whether Dr. Singer should have excised all of the decedent's mole in 1978 (an "excisional biopsy"), instead of only a portion of it (a "punch biopsy"). At no time, either in the pleadings or...

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