Domann v. Vigil

• Citation: 261 F.3d 980
• Decision Date: 16 August 2001
• Docket Number: No. 00-2270,00-2270
• Parties: (10th Cir. 2001) KEN DOMANN and CYNTHIA DOMANN, Plaintiffs - Appellants, v. DEBBIE VIGIL, M.D., Defendant - Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 980

261 F.3d 980 (10th Cir. 2001)

KEN DOMANN and CYNTHIA DOMANN, Plaintiffs - Appellants, v. DEBBIE VIGIL, M.D., Defendant - Appellee.

No. 00-2270

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Aug. 16, 2001.

Appeal from the United States District Court for the District of New Mexico (D. Ct. No. CIV-99-192-LH/LFG) Daniel R. Swiss (Turner W. Branch, Margaret Moses Branch, and James P. Lyle, with him on the briefs), The Branch Law Firm, Albuquerque, NM, for Plaintiffs-Appellants.

Alice Tomlinson Lorenz (Jennifer L. Stone, with her on the brief), Miller, Stratvert & Torgerson, P.A., Albuquerque, NM, for Defendant-Appellee.

Before TACHA, Chief Judge, HENRY, and LUCERO, Circuit Judges.

TACHA, Chief Judge.

In this medical malpractice case, appellants Ken and Cynthia Domann challenge the jury verdict below as incomplete and inconsistent. The Domanns further appeal the district court's refusal to instruct the jury on one of their theories of negligence as well as the district court's exclusion of the Domanns' medical bills from evidence. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I. Background

The Domanns moved to New Mexico in the spring of 1996. At the time, Mrs. Domann was pregnant. Upon arrival in New Mexico, she began receiving obstetrical care from the appellee, Dr. Debbie Vigil, M.D. On October 31, 1996, Dr. Vigil admitted Mrs. Domann to St. Vincent's Hospital after she had developed symptoms consistent with mild preeclampsia. Labor was induced and the following morning, a healthy baby girl was delivered. However, following delivery, Mrs. Domann's placenta did not deliver spontaneously. After Dr. Vigil and a consulting doctor, Dr. Cleveland Pardue, attempted unsuccessfully to remove the placenta manually, they made the decision to move Mrs. Domann to the operating room, place her under a general anesthesia, and further explore her uterus. Still, the placenta could not be removed and the doctors began to discuss the possibility of a hysterectomy.

At 10:35 a.m., Mrs. Domann suffered an unexpected cardiac arrest. After stabilizing Mrs. Domann's heart rate, Dr. Vigil decided to perform an immediate hysterectomy assisted by a second consulting physician, Dr. Lance Mikkelsen. During the operation, due to high levels of blood loss during and following the delivery, Mrs. Domann's blood pressure could not be stabilized.

Following the hysterectomy, Dr. Vigil called for a further consultation with Dr. Bruce Shaffer. Dr. Shaffer examined Mrs. Domann in the operating room and diagnosed her with amniotic fluid emboli and systemic inflammatory response syndrome.¹ Amniotic fluid emboli can result in disseminated intravascular coagulopathy ("DIC"), a condition where the body's clotting system goes awry and microscopic clots are formed throughout the body blocking the blood supply to vital organs. At approximately 1:15 p.m., Dr. Shaffer ordered Heparin to treat what he believed was DIC induced by amniotic fluid emboli. Fresh frozen plasma was ordered but withheld from Ms. Domann while the Heparin was administered. Mrs. Domann received four units of fresh frozen plasma later that afternoon. Mrs. Domann remained hospitalized until February 10, 1997, when, after a stormy hospital course, she was released to a rehabilitation center. She continues to suffer peripheral nerve impairment and is still progressing in her recovery.

Following Mrs. Domann's release from the hospital, the Domanns filed suit against Dr. Vigil. The Domanns alleged that Dr. Vigil was negligent in the following ways: (1) by failing to properly recognize and manage extensive hemorrhaging during Mrs. Domann's post-partum course; (2) by failing to perform the hysterectomy soon enough to prevent Mrs. Domann's DIC; and (3) by failing to give the fresh frozen plasma soon enough and instead approving the decision of Dr. Shaffer to administer Heparin. Evidence was presented at trial by medical witnesses that Mrs. Domann had suffered an amniotic fluid embolism complicated by DIC and placental accreta² and that nothing could have been done by any doctor to improve her outcome.

On the other hand, the Domanns' medical expert, Dr. Richard Luciani, testified that Dr. Vigil was negligent in underestimating the amount of blood Mrs. Domann had lost leading to Mrs. Domann's cardiac arrest, in failing to immediately give Mrs. Domann fresh frozen plasma, and in allowing Dr. Shaffer to administer Heparin. However, at no point did Dr. Luciani testify that Dr. Vigil had a duty to perform the hysterectomy earlier than she did.

Following testimony, the Domanns submitted a special verdict form which was accepted by the district court. The special verdict form included two preliminary questions. The first asked the jury to determine whether Dr. Vigil had been negligent, and the second asked the jury to determine whether any negligence of Dr. Vigil had been the proximate cause of any of the Domanns' injuries. The Domanns also submitted jury instruction 28, which was subsequently given to the jury. Instruction 28 states:

After considering the evidence and these instructions as a whole the preliminary questions presented for you to answer on the special verdict form are as follows:

1. Was Dr. Debbie Vigil negligent?

2. Was any negligence of Dr. Debbie Vigil a proximate cause of Ken and Cynthia Domann's injuries and damages?

If you answer "no" to either question 1 or 2 on the special verdict form, you shall return the special verdict for Dr. Debbie Vigil and against Ken and Cynthia Domann.

If, on the other hand, you answer "yes" to question 1 and 2, you shall determine the amount of money that will compensate Ken and Cynthia Domann for the injuries and damages, and you will otherwise answer the questions required of you on the special verdict form which I will hand to you at the conclusion of these instructions.

After the district court had read the instructions to the jury, the court asked counsel if there were any objections to the manner in which they were read. The Domanns' counsel stated that there were none.

After deliberations, the jury informed the court that it had reached a unanimous verdict. Upon reading the verdict, the district court noted that the first question on the special verdict form had been left blank. The jury foreman confirmed that the first question had not been filled out and subsequently explained that the jury had been unable to reach a unanimous answer to the first question, but had unanimously answered "no" to the second question. Based on the jury's unanimous answer to the second question and on instruction 28, the trial judge accepted the verdict for Dr. Vigil and denied the Domanns' motion for a new trial.

II. Jury Verdict

The Domanns now appeal the district court's denial of their motion for a new trial, arguing that the jury verdict was inconsistent and incomplete. We review a district court's refusal to grant a new trial based on a finding that the jury verdict is not inconsistent for abuse of discretion. Harvey ex rel. Harvey v. General Motors Corp., 873 F.2d 1343, 1346 (10th Cir. 1989) (holding that, when plaintiffs argue an inconsistent jury verdict this court will "not disturb the trial court's denial of a motion for a new trial absent a showing of abuse of discretion"); see also Harris Mkt. Research v. Marshall Mktg. & Communications, Inc., 948 F.2d 1518, 1522 (10th Cir. 1991). It is the additional burden of the appellant to show that any verdict inconsistency demonstrates "either confusion or abuse on the jury's part." Global Van Lines, Inc. v. Nebeker, 541 F.2d 865, 868 (10th Cir. 1976). In determining whether there is any inconsistency, we must accept any reasonable explanation that reconciles the jury's verdict. Harvey, 873 F.2d at 1348; Heno v....