Barth v. Rock

• Decision Date: 10 January 1984
• Docket Number: No. 4668-III-1,4668-III-1
• Citation: 36 Wn.App. 400,674 P.2d 1265
• Parties: Larry BARTH, as Administrator of the Estate of Andrea Barth, and Larry Barth and Betty J. Barth, Respondents, v. Ronald ROCK and Jane Doe Rock, his wife, Kennewick General Hospital, and Said Nayebi, Appellants.
• Court: Washington Court of Appeals

Page 400

36 Wn.App. 400

674 P.2d 1265

Larry BARTH, as Administrator of the Estate of Andrea Barth and Larry Barth and Betty J. Barth, Respondents, v. Ronald ROCK and Jane Doe Rock, his wife, Kennewick General Hospital, and Said Nayebi, Appellants.

No. 4668-III-1.

Court of Appeals of Washington, Division 3 Panel One.

Jan. 10, 1984.

Rehearing Denied Feb. 17, 1984.

Floyd E. Ivey, Westland, Sondermann & Egan, Kennewick, Dennis L. Fluegge, Halverson, Applegate & McDonald, Yakima, for appellants.

Eugene G. Schuster, Critchlow & Williams, Richland, for respondents.

GREEN, Justice.

Ronald Rock, Kennewick General Hospital and Dr. Said Nayebi appeal the vacating of a jury verdict and granting of a new trial in a wrongful death action. We affirm.

On June 16, 1977, Andrea Barth, a 5-year-old girl, broke her arm while riding a bicycle. Her father took her to Kennewick General Hospital. Dr. Nayebi examined her there and performed a closed reduction. At that time Mr. Barth executed a standard "consent form". Andrea's arm began to swell so that her cast had to be split which altered the alignment of the fracture. A second surgery to correct this condition was scheduled for June 22. Andrea's mother executed a consent form prior to this surgery. Mr. Rock, a nurse anesthetist under contract with Kennewick General Hospital, administered the anesthetics. The general anesthetics used for this surgery were sodium pentothal, succinylcholine drip and nitrous oxide. Because a patient under general anesthetics requires ventilation, Andrea was ventilated through a mask which was placed over her mouth and nose. Mr. Rock controlled Andrea's breathing by squeezing an air bag.

The general anesthetics were started about 9:35 a.m. and surgery began about 10:00 a.m. At 10:55 a.m. Andrea's pulse rate was 120. Surgery proceeded without incident--until about 11 a.m. when Andrea began to move. Mr. Rock then administered additional sodium pentothal to keep her quiet. Immediately thereafter, Andrea's blood pressure dropped to 60 over 40 and her pulse fell until at 11:11 a.m. it was 15 beats per minute. There is a difference of opinion among the expert witnesses as to whether Dr. Nayebi should have administered cardiac massage instead of continuing with the surgery. Mr. Rock proceeded to give her two shots of atropine without response and administered epinephrine to which Andrea responded. Andrea was placed in intensive care and never regained consciousness.

On June 24 Andrea experienced respiratory arrest. She was transferred to Deaconess Hospital in Spokane the same day. The Barths, being informed brain scan tests showed brain death had occurred, decided to cease life support systems. Andrea died shortly thereafter. The autopsy listed the cause of her death as cerebral anoxia (lack of oxygen to the brain) and edema.

Larry Barth, individually and as administrator of Andrea's estate, together with Betty Barth commenced this action for wrongful death against Dr. Nayebi, Mr. Rock and Kennewick General Hospital. After a 3-week trial, the jury returned a verdict in 45 minutes for defendants. The Barths moved for a new trial which was granted on the basis substantial justice was not done. Defendants appeal.

The doctor, anesthetist and hospital contend the verdict was supported by the evidence and the court abused its discretion by granting a new trial.

A trial court has discretion in ruling on a motion for a new trial, State v. Hall, 74 Wash.2d 726, 727, 446 P.2d 323 (1968); State v. Gobin, 73 Wash.2d 206, 208, 437 P.2d 389 (1968), and an order granting or denying a new trial will not be reversed except for abuse. Detrick v. Garretson Packing Co., 73 Wash.2d 804, 812-13, 440 P.2d 834 (1968). Also, a much stronger showing of abuse will ordinarily be required to set aside an order granting a new trial than one denying a new trial. Moore v. Smith, 89 Wash.2d 932, 942, 578 P.2d 26 (1978). Here the court stated one of the reasons for granting a new trial was insufficient evidence to support the verdict, and thus substantial justice was not done. We agree.

CR 59(a)(9) provides that a trial judge may grant a new trial when substantial justice has not been done. This court in Berry v. Coleman Systems Co., 23 Wash.App. 622, 624-25, 596 P.2d 1365 (1979), discussed the court's discretion to order retrial on "substantial justice" grounds and, quoting from Olpinski v. Clement, 73 Wash.2d 944, 442 P.2d 260 (1968), stated as follows:

The trial court has the duty to see that justice prevails. He has the power in the exercise of his discretion to grant a new trial where substantial justice has not been done, but, to facilitate appellate review, he must state his reasons. We stated, in Baxter v. Greyhound Corp. [65 Wash.2d 421, 397 P.2d 857 (1964) ], supra at 440:

The basic question posed by an order granting a new trial upon this ground, be it a civil or criminal action, is whether the losing party received a fair trial. State v. Taylor, supra [60 Wash.2d 32, 371 P.2d 617 (1962) ]. And, it is in this area of the new-trial field that the favored position of the trial judge and his sound discretion should be accorded the greatest deference, particularly when it involves the assessment of occurrences during the trial which cannot be made a part of the record, other than through the voice of the trial judge in stating reasons for the action taken.

If the trial judge, in the exercise of his best judgment determines that a fair trial has not been had, he has the alternative, in an appropriate situation, of granting a partial, a conditional, or an unconditional new trial. This decision, in turn, calls for a weighing of factors and values such as the complexity of the issues, the length of...