Brann v. Exeter Clinic, Inc.

• Decision Date: 15 August 1985
• Docket Number: Nos. 84-286,84-323,s. 84-286
• Citation: 498 A.2d 334,127 N.H. 155
• Parties: Marsha BRANN, Administratrix of the Estate of Robert E. Brann, and Marsha Brann, Individually v. EXETER CLINIC, INC. and Karl L. Singer, M.D.
• Court: New Hampshire Supreme Court

Page 334

498 A.2d 334

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.

Aug. 15, 1985.

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The defendants filed a cross-appeal, arguing that the plaintiff's loss of consortium claim should have been withdrawn from the jury and that the verdict for damages was excessive.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 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 during the trial, did the defendants allege that the decedent had been contributorily negligent.

Until the court instructed the jury, the only mention of comparative negligence came in the pretrial statement of Dr. Carlson (who is not involved in this appeal), viz.: "Comparative negligence is reserved as a defense pending testimony and evidence at trial." Neither Dr. Carlson nor the defendants here requested a jury instruction on the issue.

The only evidence at trial from which causal contributory negligence on the part of the decedent might be inferred was a suggestion made by one expert that the decedent's cancer was a type that may develop very rapidly, together with a series of general statements to the effect that any melanoma must be discovered and removed early "if there is to be any hope of a cure."

Nevertheless, the trial court instructed the jury on the issue of comparative negligence, see RSA 507:7-a, and the jury returned the special verdict described above. The plaintiff objected to the jury instruction on the ground that there had been insufficient evidence of causal negligence by the decedent to warrant such an instruction. Her objection was overruled, and an exception noted.

On appeal the plaintiff argues that the instruction was improper on several grounds. The only timely objection to the instruction, however, involved the sufficiency of the evidence. That is, accordingly, the only ground properly preserved for appeal. Proctor v. Bank of N.H., 123 N.H. 395, 402, 464 A.2d 263, 267 (1983).

We agree that in this case there was insufficient evidence of causal negligence on the part of the decedent to warrant a jury instruction. The test is "whether the evidence [supporting causal negligence] ... might reasonably and properly lead the jury, in the absence of any explanatory or rebutting evidence, to conclude that the allegation of negligence is sustained." Paine v. Railway, 58 N.H. 611, 614 (1879).

In this case, the question was, first, whether the decedent's delay in consulting a doctor in 1980 was negligent; and second, whether that delay was in some measure a cause of his death. We need not discuss the first question, because the latter question is plainly beyond the knowledge and experience of a lay jury; it requires the application of special experience and training. Michael v. Roberts, 91 N.H. 499, 501, 23 A.2d 361, 362 (1941). In such cases, where there is no expert testimony that could support an inference of causal negligence, there is no issue for the jury. "Otherwise the jury would be deciding the case on conjecture rather than reason." Jutras v. Satters, 96 N.H. 300, 302, 75 A.2d 712, 713 (1950).

There is no expert testimony in the record from which a jury could reasonably infer that it was more likely than not that the decedent's delay in seeking treatment caused his death. Cf. Carson v. Maurer, 120 N.H. 925, 934, 424 A.2d 825, 832 (1980) ("in the area of medical malpractice, matters relating to ... proximate cause must generally be established by expert testimony"). None of the expert witnesses testified as to the likelihood that the decedent's cancer would have taken a different course if he had consulted a doctor in June or July of 1980, rather than in late August. The general statements referred to above, about the need for early discovery and treatment, could not give a lay jury a sufficient basis for a reasonable finding of causal negligence; the jury could only speculate as to how those statements might be applied to the facts of this case. We accordingly hold that the jury should not have been instructed on the issue of comparative negligence.

We note in passing that courts should be reluctant to instruct juries on comparative negligence when the issue has not been pleaded or argued at trial, and when no instruction has been requested. The comparative negligence statute reads in pertinent part: "The burden of proof as to the existence or amount of causal negligence alleged to be attributable to a party shall rest upon the party making such allegation." RSA 507:7-a.

This does not necessarily mean that a defendant alleging contributory negligence must introduce evidence to that effect; sometimes the plaintiff's own evidence will be sufficient to establish negligence on his or her part. Restatement (Second) of Torts § 477, comment a (1965). The statute clearly implies, however, that a defendant who seeks to prove negligence should first allege it by formal pleading or pretrial statement under Superior Court Rule 62.

Such a rule is in keeping with the general principle of pleading laid down by this court in 1950: "Pleadings ought to be simple, concise and indicate the...