Bailey v. Amisub (Saint Joseph Hosp.), Inc.
| Decision Date | 14 April 1992 |
| Docket Number | No. A-89-1360,A-89-1360 |
| Parties | Sandra J. BAILEY, Appellee and Cross-Appellant, v. AMISUB (SAINT JOSEPH HOSPITAL), INC., Doing Business as St. Joseph Hospital, and Susan White, Appellants and Cross-Appellees. |
| Court | Nebraska Court of Appeals |
Neil B. Danberg, Jr., and Patrick G. Vipond of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellants.
John F. Thomas of McGrath, North, Mullin & Kratz, P.C., Omaha, for appellee.
Before CONNOLLY, HANNON and IRWIN, JJ.
Defendants, AMISUB (Saint Joseph Hospital), Inc. (AMISUB), and Susan White, appeal a jury verdict of $120,000 entered in favor of the plaintiff, Sandra J. Bailey, for injuries sustained as a result of defendants' negligence. Bailey cross-appeals the verdict. We affirm.
This case arises as a result of injuries sustained by Bailey, a student nurse anesthetist, while assisting the moving of a patient's bed from an operating room in a hospital operated by AMISUB.
Bailey's initial injury occurred on June 8, 1985. Bailey was a student in Creighton University's C.R.N.A. (nurse anesthetist) program. As part of her clinical coursework, Bailey was required to attend patients in the operating rooms of St. Joseph Hospital, a facility operated by AMISUB.
Bailey was one of the attendants guiding a heart patient's bed out of operating room No. 1. Jeanne Howard, a nurse anesthetist who was also attending the patient, testified at trial that the patient's bed had been pushed into the corridor, so that it was perpendicular to the wall opposite the door of operating room No. 1. Bailey, along with Jeanne Howard, was at the head of the bed near the wall. Defendant White, an employee of AMISUB, was at the foot of the bed in the doorway.
When the accident occurred, the attendants were at the point of turning the bed down the hall. White testified that the bed always binds on the right side of the doorway when the turn begins. On this occasion, White moved the left side of the bed. The right side of the bed was freed, the bed moved toward Bailey, who was near the wall, and the bed's metal rail, which was situated 19 inches from the floor, struck Bailey on her knees.
The following day, Bailey went to the emergency room at St. Joseph Hospital with complaints of severe pain in her knee. On July 11, 1985, Bailey's orthopedic surgeon, Dr. Fitzgibbon, performed arthroscopic surgery on Bailey's left knee. Bailey's surgeon thereafter prescribed therapy to strengthen the knee. Bailey did not adhere to this regimen and subsequently sought the advice of Dr. Ries, another orthopedic surgeon.
On March 10, 1986, Dr. Ries performed lateral release surgery on Bailey's left knee to correct an abnormal sideways movement, or subluxation, of the kneecap. The surgical wound became infected a few days after surgery, and Bailey was confined to the hospital for several weeks. As a result, Bailey was absent from school and graduated one semester later than she expected. Bailey's left kneecap was entirely removed in January 1987 to correct the subluxation of the kneecap. Bailey's total medical expenses were $55,633.55.
Bailey filed suit against AMISUB and White on April 18, 1986, alleging negligence on the grounds that White failed to keep a proper lookout and control over the bed, and failed to warn Bailey of the bed's proximity to the wall. On the day trial began defendants were given leave to amend their answer to include the defense of mitigation of damages.
The case was tried to a jury. The defendants twice moved for a mistrial: first, when Bailey mentioned that she could not continue rehabilitative therapy because she had no health insurance, and second, after Bailey's counsel delivered rebuttal to defendants' closing argument. Both motions were denied.
On August 2, 1989, the jury, after deliberating for over 7 hours, returned a verdict of $126,516 against the defendants. The trial court noticed that the verdict form was improperly signed by all 12 jurors, instead of by the foreman alone, as required by Neb.Rev.Stat. § 25-1123 (Reissue 1989). The court then polled the jury and determined that only 10 jurors agreed with the verdict and sent the jury back to the jury room. The jury returned within 30 minutes with a verdict form properly signed by only 10 jurors. However, the verdict had been reduced by $6,516 to $120,000.
After trial, the defendants first moved for expenses in connection with discovery had in California to authenticate documents relating to Bailey's previous medical conditions. This motion was overruled. Bailey then moved to vacate the order entering judgment of $120,000 and to reinstate the former verdict of $126,516. This motion was overruled. Finally, the defendants moved for a new trial, which was overruled. AMISUB and White have filed a timely appeal.
On appeal the defendants assign the following errors: (1) The district court erred in overruling defendants' motion for mistrial after Bailey, on direct examination, inadvertently mentioned her lack of health insurance; (2) the district court improperly instructed the jury that they might take into consideration Bailey's lost time up to trial, since Bailey was a student at the time of her injury and had no specific income; (3) the verdict of $120,000 against defendants was excessive, and the court erred by not granting a new trial; (4) the district court erred in overruling defendants' motion for mistrial or for curative instruction when Bailey's counsel in rebuttal during closing argument mentioned Bailey's lack of funds; and (5) the court erred in overruling defendants' motion for discovery sanctions against Bailey.
Defendants made a motion in limine to exclude all reference to insurance. Nevertheless, during her direct examination Bailey inadvertently mentioned that she lacked health insurance. Moreover, in his closing argument counsel for Bailey made reference to exhibit 78, an application Bailey made for Social Security disability benefits on August 21, 1985.
We first consider Bailey's reference to her lack of health insurance. Defendants claim that it was an abuse of discretion for the trial court to overrule their motion for mistrial after Bailey inadvertently mentioned her lack of health insurance. There are no Nebraska cases dealing with inadvertent mention of health insurance. The cases clearly state, however, that evidence of a defendant's liability insurance is irrelevant and inadmissible and its admission is a grounds for mistrial. See, e.g., Patterson v. Swarr, May, Smith & Anderson, 238 Neb. 911, 473 N.W.2d 94 (1991); Kresha v. Kresha, 216 Neb. 377, 344 N.W.2d 906 (1984); Fielding v. Publix Cars, Inc., 130 Neb. 576, 265 N.W. 726 (1936). See, also, Neb.Rev.Stat. § 27-411 (Reissue 1989). However, the Nebraska Supreme Court has never held that admission of evidence of plaintiff's lack of health insurance is a grounds for mistrial.
Other jurisdictions have held that inadvertent mention of a plaintiff's insurance is not prejudicial error. See Red Ball Motor Freight, Inc. v. Cordova, 332 S.W.2d 753 (Tex.Civ.App.1960); Coffindaffer v. Coffindaffer, 161 W.Va. 557, 244 S.E.2d 338 (1978).
Since the indemnification of defendants does not logically follow from the fact that Bailey lacked health insurance, it cannot be said that defendants necessarily were prejudiced. Here, there was only the possibility of prejudicial error, since the defendants have not shown that the jury made the forbidden inference from Bailey's lack of health insurance to defendants' indemnification. See Battle v. Strother, 171 Ga.App. 418, 319 S.E.2d 887 (1984).
Nor have defendants affirmatively shown that the jury made the forbidden inference that because Bailey lacked health insurance she was therefore unable to pay. As we will discuss below in part III(1)(b), Bailey's counsel properly relied on the Social Security application to rebut mitigation of damages; however, Bailey's lack of health insurance was not so used.
On appeal the party asserting an abuse of discretion has the burden of proving that claim. Diplomat Inn, Inc. v. Weindorf, 206 Neb. 565, 293 N.W.2d 861 (1980). Since the defendants in this case have not proved that they were prejudiced by Bailey's inadvertent mention of health insurance, we conclude that it was not an abuse of discretion for the trial court to overrule their motion for mistrial on this ground.
We next consider the Social Security application. Defendants claim the trial court erred in overruling their motion for mistrial because in closing argument counsel for Bailey stated that a person applies for such benefits "[b]ecause you don't have the funds." Specifically, in his closing argument counsel for Bailey stated:
You are going to get an exhibit, Mr. Danberg will talk to you about her application for disability determination. You know why you do that? Because you don't have the funds. And she just plain flat didn't have the funds to do it. So what are you going to do, go listen to a doctor that tells you, "Yes, go to physical therapy." There are charges for physical therapy, and, And that's what she did.
The defendants had introduced the application for disability benefits for the purpose of impeaching Bailey's testimony that prior to her injury at St. Joseph, she had never seen a Dr. Katz for an injury to her left knee.
In their brief defendants state: "It has long been the rule in Nebraska that evidence of the financial standing of the parties is clearly inadmissible." Brief for appellants at 22. Defendants cite in support Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 (1930), a case which concerned the financial standing of the defendant. In Taulborg v. Andresen counsel for the defendants...
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