Hake v. DeLane, 17644

• Decision Date: 06 June 1990
• Docket Number: No. 17644,17644
• Citation: 793 P.2d 1230,117 Idaho 1058
• Parties: Howard Lyle HAKE, Plaintiff-Respondent, v. Larry R. DeLANE, M.D., Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1230

793 P.2d 1230

117 Idaho 1058

Howard Lyle HAKE, Plaintiff-Respondent, v. Larry R. DeLANE, M.D., Defendant-Appellant.

No. 17644.

Supreme Court of Idaho.

June 6, 1990.

Quane, Smith, Howard & Hull, Boise, for defendant-appellant. Jeremiah A. Quane argued.

Aherin & Rice, P.A., Lewiston, for plaintiff-respondent. Anthony C. Anegon argued.

JOHNSON, Justice.

This is a medical malpractice case in which the jury awarded the patient $300,000.00. The most significant issue presented is whether there was substantial evidence upon which the jury could have found that any breach of care by the doctor proximately caused the patient's damages. We conclude that there was.

We also hold that the trial court did not abuse its discretion (1) by not granting a new trial on the ground that some jury members were aware of a newspaper article pertaining to the case or on the ground that the trial court permitted a copy of the newspaper from which the article had been excised to be placed in the jury room, (2) by not granting a new trial on the grounds that a juror knew the patient better than she had admitted on voir dire and that she was accused of introducing into the jury deliberations evidence concerning blood pressures that she had taken from nursing books, and (3) in concluding that the finding of liability by the jury was not against the clear weight of the evidence.

We hold that the trial court should not have excluded evidence of the doctor's habit of referring patients to other doctors, but that this exclusion was harmless error.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Lyle Hake (the patient) was fourteen years old in December 1980, when his mother first took him to see Larry R. DeLane, M.D. (the doctor), a family physician. During the preceding four years, the patient had not grown as much as other children his age, had become obese and had experienced headaches and fatigue. A physical examination by the doctor revealed that the patient was in the fifth percentile for height and the fiftieth percentile for weight compared to other boys his age. He had elevated blood pressure and a trace of protein in his urine.

During the following two years, the patient visited the doctor for examination and treatment approximately thirty times. The doctor treated the patient for various symptoms, including severe headaches, high blood pressure, obesity, kidney stones, acne, lack of growth, depression and low self-image. In late November 1982, the patient was seen in the hospital emergency room for a possible kidney stone. Four days later, the patient consulted with the doctor concerning the kidney stone. The doctor immediately referred the patient to a urologist, who reported that the patient's bones were abnormal and that the patient should be given a metabolic evaluation. The evaluation indicated that the patient had Cushing's syndrome, a hormonal disorder caused by an excess of cortisol in the body.

The urologist referred the patient to the Oregon Health Sciences University for further diagnosis and treatment. There he was seen by a pediatric endocrinologist, who diagnosed the patient as having Cushing's disease, which is caused by a tumor of the pituitary gland. The tumor causes the pituitary gland to produce too much ACTH, which in turn causes the adrenal gland to produce too much cortisol. In February 1983, surgery was performed to remove the tumor. After the surgery the patient began to grow and lost weight. The other symptoms of Cushing's disease also resolved.

The patient sued the doctor, alleging that the doctor had negligently failed: (1) to diagnose the patient's condition as Cushing's syndrome, (2) to recommend or prescribe proper treatment for the patient's physical problems, (3) to refer the patient to another physician qualified to diagnose the patient's medical condition, (4) to perform or have others perform tests that would have made it possible to diagnose the patient's medical condition, and (5) to use due care and circumspection in treating the patient.

On the second day of the trial, while jury selection was continuing, a local newspaper published an article concerning the case. This article stated that the patient claimed in the lawsuit that a medical prelitigation screening panel had found that the doctor had negligently failed to meet medical standards of the community by failing to diagnose, treat or refer the patient. Although the trial court had admonished the prospective jurors the day before not to read the newspaper, the trial court allowed a copy of the newspaper to be placed in the jury room with the article concerning the case having been excised.

Three days later, the doctor's attorney learned of the newspaper article for the first time and moved for a mistrial. The trial court questioned all of the jurors about their knowledge of the article. They all denied having read the article. All but three denied having heard anything about its contents. These three admitted having heard of the article, but stated that they did not know anything about its contents. The trial court then denied the motion for mistrial.

During the trial the patient filed a motion to exclude testimony regarding the doctor's patterns of referring patients to other doctors or regarding the referral of other patients to other doctors. The trial court granted the motion on the ground that the evidence was inadmissible as a character trait.

The jury found that the doctor had negligently caused damage to the patient in the amount of $300,000.00. The doctor moved for judgment n.o.v. and for a new trial. The doctor relied in part on the affidavit of a juror stating that one of the other jurors knew the patient better than she had admitted during voir dire and that the same juror had consulted a nursing text regarding blood pressures and had used the information during deliberations. The patient submitted affidavits by the juror accused of misconduct and another juror denying the substance of the juror's affidavit presented by the doctor. The trial court ruled that the affidavits submitted by the patient were more credible.

The trial court also concluded that there was substantial evidence to support the verdict and that the verdict was not against the weight of the evidence. Following the denial of the doctor's motions, the doctor appealed.

II.

THERE WAS SUBSTANTIAL EVIDENCE THAT THE DOCTOR'S NEGLIGENCE WAS THE PROXIMATE CAUSE OF DAMAGES TO THE PATIENT.

The doctor asserts that the trial court should have granted judgment n.o.v. on the grounds that there was no evidence to establish a causal connection between the doctor's alleged negligence and the patient's damages. We disagree.

It is well established in this state that in medical malpractice cases the plaintiff must prove not only that the defendant was negligent, but also that the negligence was the proximate cause of the plaintiff's damages. Flowerdew v. Warner, 90 Idaho 164, 171, 409 P.2d 110, 114 (1965); Hall v. Bacon, 93 Idaho 1, 3, 453 P.2d 816, 818 (1969); Conrad v. St. Clair, 100 Idaho 401, 404, 599 P.2d 292, 295 (1979); Pearson v. Parsons, 114 Idaho 334, 339, 757 P.2d 197, 202 (1988). This Court has also said that in these cases negligence must be established by expert medical testimony, "because the causative factors are not ordinarily within the knowledge or experience of laymen composing the jury." Walker v. Distler, 78 Idaho 38, 47, 296 P.2d 452, 457 (1956).

In deciding whether to grant a motion for judgment n.o.v., "the trial judge must view all of the evidence and all inferences drawn therefrom in favor of the non-moving party, and decide if there was substantial evidence to justify submitting the case to the jury." Quick v. Crane, 111 Idaho 759, 764, 727 P.2d 1187, 1192 (1986). This is the same standard we are to apply in determining whether the trial court properly decided the motion. Id.

Here, the doctor argues that there is no expert medical evidence in the record from which the jury could have found that any negligence of the doctor was the proximate cause of the patient's damages. In denying the motion for judgment n.o.v., the trial court ruled that from the evidence presented on behalf of the patient, the jury could have drawn reasonable inferences as to the damages the patient suffered because of the doctor's failure to diagnose Cushing's syndrome earlier. Using the standard set out in Quick v. Crane, we conclude that there was substantial expert medical evidence in the record to support the submission of the question of proximate cause and damages to the jury.

The record here contains the testimony of a family medical practitioner who stated that by the use of a simple and commonly used test the patient's Cushing's disease should have been diagnosed and treated in July 1981. This was sixteen months before the doctor referred the patient to a urologist.

A specialist who is board certified in both pediatrics and pediatric endocrinology and who specializes in hormonal disorders of children testified that the patient had Cushing's disease for at least several years prior to December 1982. This witness also testified that a person whose height placed them in the same percentile as the patient would ordinarily grow five inches between the ages of fourteen and sixteen, roughly the period that the patient was under the care of the doctor. This witness stated that if the patient's Cushing's disease had been diagnosed and treated earlier, the patient would have grown taller. The evidence here indicates that the patient grew only slightly, if at all, during the time he was under the care of the doctor, but that he began growing again after the surgery in February 1983.

A pediatric endocrinologist at the Oregon Health Sciences University testified that the sooner the diagnosis of Cushing's disease is made the better the growth potential of the individual, unless the individual has already finished his growing.

A clinical psychologist...