Bossard v. McCue

• Decision Date: 17 September 1981
• Docket Number: No. 3-1080A325,3-1080A325
• Citation: 425 N.E.2d 682
• Parties: John W. BOSSARD, M.D., Defendant-Appellant, v. James M. McCUE and Patricia L. McCue, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 682

425 N.E.2d 682

John W. BOSSARD, M.D., Defendant-Appellant, v. James M. McCUE and Patricia L. McCue, Plaintiffs-Appellees.

No. 3-1080A325.

Court of Appeals of Indiana, Third District.

Sept. 17, 1981.

Rehearing Denied Nov. 3, 1981.

John F. Lyons, William F. McNagny, James P. Fenton, Barrett, Barrett & McNagny, Fort Wayne, for defendant-appellant.

Ronald L. Sowers, M. Robert Benson, Mark S. Pantello, Sowers & Benson, Fort Wayne, for plaintiffs-appellees.

HOFFMAN, Presiding Judge.

John W. Bossard, M.D. appeals the trial court's order for a new trial after a verdict in his favor was returned in a medical malpractice action. The issues raised are:

(1) whether the trial court erred in failing to disqualify itself from ruling on post-trial motions;

(2) whether the trial court erred in failing to enter judgment on the verdict prior to ordering a new trial;

(3) whether the trial court erred in failing to comply with Ind. Rules of Procedure, Trial Rule 59; and

(4) whether the trial court erred in ordering a new trial.

James McCue was referred by his family physician to Dr. Bossard, a neurosurgeon, in 1975 for treatment for pain in McCue's left leg and hip. Dr. Bossard took a medical history and examined McCue before concluding that he had a ruptured lumbar disc. McCue was sent to a hospital for treatment.

While McCue was in the hospital, x rays and a myelogram were taken to confirm Dr. Bossard's diagnosis. These tests revealed nothing abnormal in McCue's back. McCue was initially put in traction, but when this failed to relieve the pain he agreed to undergo an exploratory surgery performed by Dr. Bossard.

Dr. Bossard testified that his surgery report included findings of ruptured, degenerated, fourth lumbar intervertebral disc and severe lumbar spondylosis at the fourth lumbar interspace on the left, severe nerve root entrapment at the fourth lumbar interspace on the left causing severe left sciatic and femoral radiculitis. Other findings included: extreme stenosis, or narrowing at the fourth lumbar interspace on the left causing severe nerve root compression of the nerve roots at the fourth lumbar interspace on the left; ruptured and degenerated fourth lumbar intervertebral presenting in the mid-line and extending across the mid-line far out into the foramina at the fourth lumbar interspace on the left; a large osteoarthritic ridge underneath the ruptured disc extending across the mid-line and far out into the interval foramina at the fourth lumbar interspace on the left; a large osteoarthritic spur presenting on the facet joint anteriorly into the interval foramina at the fourth lumbar interspace on the left; changes of lumbar spondylosis and osteoarthritis in the facet joint at the third and fifth lumbar interspace on the left.

After the surgery McCue complained of severe pain in his back and lower extremities. Tests revealed a lack of sensation in McCue's legs. McCue later developed aortic thrombosis which caused weakness, numbness and pain down his legs along with ulcers on his feet and ankles. Dr. Bossard referred McCue to Dr. Lloyd, a vascular surgeon, who determined by way of an arteriogram that McCue was suffering from a blockage of the aorta causing a vascular insufficiency to his lower extremities. Shortly thereafter Dr. Lloyd performed a by-pass operation to restore circulation to McCue's lower extremities.

McCue also developed a drainage from the incision in his back. This drainage later showed that McCue's back had become infected. McCue underwent surgery to remove the infectious back tissue.

McCue is presently totally disabled. He also suffers pain in his lower extremities.

McCue and his wife Patricia filed a medical malpractice action against Dr. Bossard alleging that Dr. Bossard was negligent in his diagnosis and treatment of McCue. The McCues also alleged that Dr. Bossard negligently misrepresented McCue's true condition and induced him to undergo unnecessary surgery for a back disorder which damaged the nerves in McCue's back. Finally, the McCues alleged that Dr. Bossard was negligent in his post-surgical care of McCue, including the failure to adequately care for the back infection.

After an eight-day trial the jury returned a verdict in favor of Dr. Bossard. Apparently judgment was never entered on this verdict. Dr. Bossard filed an application for change of venue from the judge based upon certain comments made by the judge in his chambers after the jury had begun to deliberate. Four days later, the McCues filed a motion for judgment on the evidence and a motion to correct errors. The trial court found that the verdict was against the weight of the evidence and ordered a new trial pursuant to TR. 59(I)(7) (now TR 59(J) (7)). The trial court summarized the evidence and made special findings. The trial court also retained jurisdiction to rule on the motion to correct errors but granted the motion for change of judge with regard to all subsequent proceedings.

Dr. Bossard initially contends that the trial judge should have disqualified himself from ruling on post-trial motions because of bias and prejudice against Dr. Bossard. As evidence of the bias and prejudice Dr. Bossard refers this Court to comments which the trial judge made in his chambers while the jury deliberated and in court when the jury returned its verdict.

It is essential to keep in mind when the judge's remarks were made. Unlike Brokus v. Brokus (1981), Ind.App., 420 N.E.2d 1242 where the trial judge made comments evidencing bias prior to presentation of any evidence, the comments in the present case were made after all the evidence had been presented and the jury had retired to deliberate. Contrary to Dr. Bossard's assertion that the remarks evidence a prejudice, it is apparent that the trial judge was reacting to the evidence. Such reactions are in accordance with the trial judge's role as the "thirteenth juror." The functions of a trial judge when acting as the "thirteenth juror" were summarized by Justice Hunter in Bailey v. Kain (1963), 135 Ind.App. 657, at 663-664, 192 N.E.2d 486, at 488-489:

"The trial judge is more than a mere umpire; his duties extend beyond the bounds of confining the evidence to the issues and instructing the jury on the law of the case; it was his duty to hear the case along with the jury; he had the opportunity to see and know the jury; he had the duty to observe the witnesses and note the level of their intelligence and wisdom together with their independence or lack of it, their prejudice or lack of it concerning matters about which they testified, and to note their bias or prejudice, their interest or lack of interest. In short, it was his duty to keep his eyes and ears open to what was going on during the trial so that when confronted with a motion for a new trial, he could pass upon the purely legal questions involved in the case, as well as determine the weight and sufficiency of the evidence to sustain the verdict. There are many things the trial judge must take in consideration in determining the weight of conflicting evidence and passing upon the question of the preponderance thereof which make his duty in the first instance entirely different from that of an appellate tribunal as a court of review, for at the appellate level we have only the record and briefs exemplified by the cold type before us. Hinds, Executor, etc. v. McNair et al. ((1955), 235 Ind. 34, 129 N.E.2d 553), supra, and cases cited." (Original Emphasis.) (Footnotes omitted.)

Viewed from this perspective, the trial judge's comments do not establish bias and prejudice. In the future however, trial judges should refrain from making, and attorneys should avoid inviting, such comments in conversations had while a jury is deliberating.

Dr. Bossard next asserts as error the trial court's failure to enter judgment on the verdict in accordance with Ind. Rules of Procedure, Trial Rule 58. Dr. Bossard appears to argue that a trial court cannot order a new...