MEMORANDUM DECISION CONCERNING MOTION FOR NEW TRIAL
CHRISTENSEN, District Judge.
This is a suit for alleged malpractice. The defendant as a physician and surgeon had performed an operation on plaintiff's knee during which he had maintained a tourniquet on plaintiff's leg to assure a blood-free field for the operation. Thereafter a cast was applied and maintained on the leg of the patient, and it was in connection with the cast that the claim of negligence arose. The trial occurred November 21 to November 23, 1966, and resulted in a verdict in favor of the defendant and against the plaintiff, "No Cause of Action".
The plaintiff filed timely motion for new trial on the alleged grounds of insufficiency of the evidence to justify the verdict and errors in law.
The ground first mentioned has not been argued. Since clearly there was adequate, although sharply conflicting, evidence tending to support the verdict, we pass to the second ground of the motion.
The basis for the second claim is that the court committed prejudicial error in failing to advise the jury that there could be more than one proximate cause of the damages in question and that if defendant's negligence was a proximate cause, even though not the sole proximate cause, there could be recovery. We assume that in this contention there is recognition that irrespective of whether the defendant's negligence were the sole proximate cause or only one of several proximate causes of injury to the plaintiff, she could recover only for such injuries and related damage as were proximately caused by defendant's negligence, if any. And there is no contention that the court instructed the jury that negligence had to be the sole proximate cause of injury in order to be actionable, except to the extent that it is argued the reference in the instructions to "the proximate cause" would warrant or lead to such an inference.
As background for the following discussion it should be noted that during the pre-trial proceedings plaintiff's counsel disaffirmed any claim that the initial operation on her knee by the defendant was negligently performed or that the application of the tourniquet in connection with such operation was negligent. The position of both parties during the trial on this point was the same, so that the claims of negligence against the defendant related solely to his application of the cast following the operation and his failure to loosen it, remove it or window it thereafter. In this same connection, however, it should also be noted that defendant's position was that there was no negligence on the defendant's part but that any difficulty or injury plaintiff experienced was the proximate result of the non-negligent application of the tourniquet in connection with the operation. Finally, as background, it should be noted that there was no claimed negligence on the part of anyone other than the defendant involved in the case.
Following the court's instructions to the jury, before the jury had retired but out of its hearing, the following proceedings occurred among others:
"THE COURT: Without going into detail about any exceptions, are there any matters that I have overlooked or that you think should be immediately corrected?
"MR. BLACK (of counsel for the plaintiff): I don't think so, your Honor. I do have three small matters that I would take exception to.
"THE COURT: On exceptions? But they're not matters that you should like me to instruct the jury on?
"MR. BLACK: No."
After the jury had retired to commence its deliberations, Mr. Black stated the exception upon which the plaintiff now relies as follows:
"MR. BLACK: * * * Comes now the plaintiff and excepts to the Court's instructions as follows:
"1. Excepts to the failure of the Court to instruct the jury that there can be more than one proximate cause of an injury. It is our position that this was somewhat prejudicial in view of the fact that under the facts of the case two things could have acted in combination.
"THE COURT: Did you request such an instruction?
"MR. BLACK: No, I did not, your Honor. One being the matter of the tourniquet, and the other being the matter of the cast. * * *"
Mr. Black then added a further exception not germane here and thereupon the following was stated:
"THE COURT: I certainly would have given that instruction and debated about it, if it had been requested; but to call the jury back now at this time I think would give undue emphasis to it and involve us in a rather bottomless problem out of context.
"MR. BLACK: I understand, your Honor."
The court had instructed the jury as follows with reference to the question of proximate cause:
"It is a general rule of law—and I think I should explain this general rule before we get down to the particular application of the rules of law specifically applicable to this case, so that you can consider my further instructions in context—it is a general rule of law that if a person is injured as a proximate result of the negligence of another, the negligent party is required by the law to pay damages, if any, proximately caused by such negligence, provided that the claimant prove the case in a court of law by a preponderance of the evidence; and in this case, in view of that general principle, but relying particularly upon the specific principles within the ambit of the general principle, the plaintiff Kay H. Faulkner has brought suit against the defendant Charles M. Swindler. * * *
"Now, in a suit such as this against a physician and surgeon for acts done in his professional capacity, in order to recover, the plaintiff must show by a preponderance of the evidence that in treating her, the doctor did not exercise such reasonable care and diligence as is ordinarily exercised by skilled physicians and surgeons doing the same type of work in the vicinity, and that the want or failure of such reasonable care, if any, was the proximate cause of injury to the plaintiff.
"You are further instructed that the proximate cause of an injury is that cause which in actual and continuous sequence, unbroken by any efficient intervening cause, produces injury and without which the result would not have occurred. * * *
"It must also be remembered that in a malpractice case it is not necessary to demonstrate conclusively and beyond the possibility of doubt that the negligence of a defendant physician resulted in injury to the patient. It is, therefore, not required in the trial of such cases that the negligence of the defendant as the proximate cause of an injury be established with such absolute certainty that any other conclusion is excluded, it being sufficient if on all essential elements of plaintiff's case there is proof in favor of the plaintiff by a preponderance of the evidence.
"Now, I think I have given you in various forms the governing rules and the standards for your application, and I summarize them in reference to this particular case and the salient issues of the case in this way. If the proof in your judgment does not show by a preponderance of the evidence both that the defendant was negligent in failing to conform with the standard of care that I have explained, and that such negligence, if any, proximately caused injury and damage to the plaintiff, then the plaintiff has not established her case, and your verdict should be no cause of action.
"If, on the other hand, you find from a preponderance of the evidence in your judgment that in the application of the cast in question or in the failure to remove or otherwise loosen the cast at an earlier time the defendant did not reasonably exercise that degree of skill, care, and diligence generally exercised by such surgeons in the vicinity in which the treatment was furnished by the defendant, and that he was thus negligent and if you further find by a preponderance of the evidence that such negligence proximately caused injuries and damage to the plaintiff, then you should return a verdict in favor of the plaintiff and against the defendant and assess damages in accordance with the rules as to measure of damages which I shall now give you.
"If you find the issues in favor of the plaintiff and against the defendant, it will be your duty to award plaintiff such damages as you may find from a preponderance of the evidence will justly and fairly compensate her for any injury and damage she has sustained as a proximate result of the defendant's negligence. * * *
"You will bear in mind, of course, even with regard to special damages, that if you find for the plaintiff, but find that only a part of these expenses by way of special damages were incurred as a proximate result of negligence on the part of the defendant, then you will fix what part was incurred, being a part of this
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