Byerly v. Madsen, No. 6178-III-7

• Court: Court of Appeals of Washington
• Writing for the Court: McINTURFF; CORBETT; THOMPSON
• Citation: 41 Wn.App. 495,704 P.2d 1236
• Parties: Marion Jacqueline BYERLY, individually and as the Personal Representative of the Estate of William Byerly; Becky M. Byerly; Paula C. Byerly; Robin J. Byerly; and Joseph P. Gagliardi, Attorney, as Next Friend for Wendy K. Byerly, a minor, Respondents, v. Arthur J. MADSEN, M.D., Sacred Heart Medical Center, a nonprofit corporation; Max Allen, M.D., Appellants, and Physicians Anesthesia Group, P.S., Defendants.
• Docket Number: No. 6178-III-7
• Decision Date: 15 August 1985

Page 495

41 Wn.App. 495 704 P.2d 1236 Marion Jacqueline BYERLY, individually and as the Personal
Representative of the Estate of William Byerly; Becky M.
Byerly; Paula C. Byerly; Robin J. Byerly; and Joseph P.
Gagliardi, Attorney, as Next Friend for Wendy K. Byerly, a
minor, Respondents,
v.
Arthur J. MADSEN, M.D., Sacred Heart Medical Center, a
nonprofit corporation; Max Allen, M.D., Appellants,
and
Physicians Anesthesia Group, P.S., Defendants. No. 6178-III-7. Court of Appeals of Washington,
Division 3. Aug. 15, 1985.
Review Denied Oct. 18, 1985.

Page 496

[704 P.2d 1237] Michael Hemovich, Carl Oreskovich, Hemovich & Nappi, Spokane, for appellant (Madsen).

Frank Johnson, Patrick Connelly, MacGillivray & Jones, Spokane, for appellant (Sacred Heart).

Terence Whitten, Clark Richards, Lukins & Annis, Spokane, for appellant (Allen).

Ronald Mullin, Mullin, Etter & Cronin, P.S., Spokane, for respondents.

McINTURFF, Acting Chief Judge.

Defendants, Drs. Arthur Madsen and Max Allen and Sacred Heart Medical Center (hospital), appeal the Superior Court order vacating a jury verdict in their favor in a malpractice action and granting a new trial to the plaintiffs, Marion Byerly and her four daughters (Byerlys). The Byerlys cross-appeal from the court's denial of their motion for a directed verdict against the hospital on the issue of negligence. We affirm the order for a new trial, but reverse the denial of the Byerlys' motion for a directed verdict on the issue of negligence.

In September 1980, William Byerly, who was 50 years old, visited Dr. Arthur Madsen and advised him of physical complaints which Dr. Madsen diagnosed as symptomatic of gallbladder disease. Dr. Madsen scheduled surgery at the hospital on September 19, 1983, to remove Mr. Byerly's gallbladder. In order to perform surgery at Sacred Heart, Dr. Madsen was required to obtain a second surgeon to

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consult and assist him. Dr. Madsen asked Dr. Max Allen to perform this role.

On the eve of surgery, Dr. Madsen took Mr. Byerly's physical history and ordered an E.K.G. Dr. Allen visited Mr. Byerly the morning of surgery, took his physical history, and noted that the results of an E.K.G. were not on the chart. Neither Drs. Madsen and Allen nor the anesthesiologist reviewed the E.K.G. prior to surgery. That E.K.G. was abnormal. ¹

While under anesthesia for the removal of his gallbladder, Mr. Byerly experienced irregular pulse and blood pressure and died shortly thereafter of a massive heart attack. The Byerlys subsequently brought this action against Drs. Madsen and Allen, Physicians Anesthesia Group and the hospital. Their complaint alleged negligence by the doctors and the hospital with respect to, inter alia, the E.K.G. Prior to trial, the Byerlys settled with Physicians Anesthesia Group for $100,000.

At trial, the Byerlys presented the expert testimony of Dr. Ward Kennedy, Professor of Medicine at the University of Washington, with a specialty in cardiology, and of Dr. Eugene Strandness, Professor of [704 P.2d 1238] Surgery at the University of Washington. Their opinions were that Drs. Madsen's and Allen's failure to review the E.K.G. violated the standard of care and that the attending physicians could not rely on the anesthesiologist in this regard. Dr. Strandness further stated the standard of care would have required Dr. Madsen to refer Mr. Byerly to a cardiologist in light of the abnormal E.K.G. Both doctors also were of the opinion the hospital breached the standard of care when it failed to place the E.K.G. on Mr. Byerly's chart. On cross examination by the hospital's counsel, Dr. Kennedy agreed that any violation by the hospital would have been cured had one of the

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physicians requested to see the E.K.G.

On his own behalf, Dr. Madsen said Mr. Byerly's physical history did not indicate heart disease. Although he admitted ordering the E.K.G., he stated he was not qualified to read the test. If the E.K.G. suggested postponement of the surgery, then he expected to be notified of this fact by the "reader of the month," one of several cardiologists employed by the hospital on a monthly rotating basis to overread all the computer analyzed E.K.G.s performed in the hospital. He also depended on the anesthesiologist to notify him if there was an abnormality. Dr. Allen agreed. Dr. Otto Penna, a Spokane surgeon testifying as an expert, said both Dr. Madsen and Dr. Allen had met the standard of care of a prudent surgeon.

The jury returned a special verdict finding Drs. Madsen and Allen and the hospital free of any negligence. In the Byerlys' motion for judgment N.O.V. or, in the alternative, a new trial, they cited jury misconduct. They attached the affidavit of Douglas E. Helm, the jury foreman, who attested that both before and during deliberations one of the jurors stated in the presence of the other jurors that the anesthesia group had been a defendant and had settled for $100,000. In response, the doctors and the hospital submitted the affidavits of eight of the jurors who stated that while they recalled some mention of the anesthesiologists, they did not recall any specifics and it was not considered by them during deliberations.

In a written decision, the Superior Court found that there had been jury misconduct which probably affected the verdict and, therefore, warranted a new trial. The court noted:

The jury misconduct did not occur in a vacuum. One of the chief theories of defendants', especially Madsen's, case was that the negligence of someone other than the named parties defendant at the time of trial was the proximate cause of Mr. Byerly's death. Physician's Anesthesia Group was named as one of the parties who should bear responsibility. They were named repeatedly in the opening statements of defendants, the testimony of the

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witnesses and again in closing arguments. Couple that accusation with the jury misconduct regarding the settlement with Physician's Anesthesia Group and one can discern a situation in which the misconduct could and probably did affect the jury's verdict. THE APPEAL

The doctors and the hospital contend the trial court abused its discretion when it ordered a new trial. We disagree.

First, and most fundamental, a motion for a new trial is directed to the sound discretion of the trial court, and a stronger showing of abuse of discretion is needed to set aside an order granting a new trial than one denying a new trial. Gardner v. Malone, 60 Wash.2d 836, 846, 376 P.2d 651 (1962). As stated in State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971):

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable,[704 P.2d 1239] or exercised on untenable grounds, or for untenable reasons.

(Citations omitted.) See also Davis v. Globe Machine Mfg. Co., 102 Wash.2d 68, 77, 684 P.2d 692 (1984). Stated differently, a trial court's discretionary decision will be affirmed unless no reasonable judge would have reached the same conclusion. In re Marriage of Landry, 103 Wash.2d 807, 809, 699 P.2d 214 (1985).

It also is established that the trial court, in ruling on a motion for new trial based on jury misconduct, may consider jurors' affidavits insofar as they state "the facts showing misconduct, but not as showing the effect of such misconduct on the verdict". (Italics ours.) Gardner, 60 Wash.2d at 842, 376 P.2d 651 (quoting Maryland Cas. Co. v. Seattle Elec. Co., 75 Wash. 430, 134 P. 1097 (1913)). Under Gardner, "[i]t is for the court to say whether the remarks made by the juror ...

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probably had a prejudicial effect upon the minds of the other jurors." Gardner, 60 Wash.2d at 840, ...