Harding v. Deiss

• Decision Date: 27 June 2000
• Docket Number: No. 99-213.,99-213.
• Citation: 300 Mont. 312,3 P.3d 1286,2000 MT 169
• Court: Montana Supreme Court
• Parties: Marsha HARDING, natural mother and personal representative of the Estate of Candice Jamie Jane Shuck, deceased, Plaintiff and Appellant, v. Zachory DEISS, M.D. and Glenn Sublette, M.D., Defendants and Respondents.

3 P.3d 1286

2000 MT 169

300 Mont. 312

Marsha HARDING, natural mother and personal representative of the Estate of Candice Jamie Jane Shuck, deceased, Plaintiff and Appellant, v. Zachory DEISS, M.D. and Glenn Sublette, M.D., Defendants and Respondents.

No. 99-213.

Supreme Court of Montana.

Submitted on Briefs January 13, 2000.

Decided June 27, 2000.

John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, MT, for Appellant.

Larry Riley, Susan P. Roy, Garlington, Lohn & Robinson, Missoula, MT, for Respondents.

HUNT, Justice.

¶ 1 Marsha Harding (Appellant) appeals from the denial by the Third Judicial District Court, Deer Lodge County, of her motion for a mistrial, and its issuance of a jury instruction on comparative negligence. We reverse.

¶ 2 We restate Appellant's issues on appeal as follows:

I Did the District Court err in allowing Respondents to present argument and jury instructions on comparative negligence?

II Did the District Court err in preventing Appellant from addressing the issue of comparative negligence in her closing argument?

III Were statements made by defense counsel in the jury's presence sufficiently objectionable to warrant a mistrial?

STATEMENT OF FACTS

¶ 3 On August 3, 1994, Appellant's daughter, Candice Shuck (Candice), went horseback riding at the Fairmont Stables near Anaconda, Montana. Candice had asthma, was allergic to horses, and had a long medical history of breathing difficulties. During the ride she began to have trouble breathing and eventually collapsed. Two of the stables' employees administered CPR at the scene and Candice was transported by ambulance to the Anaconda Hospital emergency room where she was placed under the care of Dr. Zachory Deiss (Dr. Deiss). The next day she was transported to St. James Hospital in Butte, Montana, and placed under the care of Dr. Glenn Sublette (Dr. Sublette). Candice's family then brought in neurosurgeon Dr. Pius Baggenstos who cared for Candice until her death on August 11, 1994.

¶ 4 Following Candice's death, Appellant brought a wrongful death and survivor action alleging medical negligence by Dr. Deiss and Dr. Sublette (Respondents). A jury returned a verdict in Respondents' favor.

¶ 5 Did the District Court err in allowing the Respondents to present argument and jury instructions on comparative negligence?

¶ 6 The issue before the jury in this medical malpractice case was whether Candice's irreversible brain injury occurred before or after she arrived at the Anaconda hospital. Appellant argued Respondents were negligent in their treatment of Candice by failing to intubate her immediately upon her arrival at the hospital, and that their negligence caused Candice's injury and death. Respondents claimed that Candice had already suffered a severe brain injury due to oxygen deprivation brought on by her asthma attack and it was her own negligence, not the negligence of Respondents, which caused her death.

¶ 7 Appellant asserts that the conduct of a patient can never be an issue in a claim of medical malpractice, and the issue of whether Candice was negligent should not have been submitted to the jury; whether Candice did something wrong before she was rendered unconscious is irrelevant to whether the Respondents were later negligent in her medical care. Appellant specifically argues that Court Instructions Nos. 11 and 12 should not have been given to the jury. Court Instruction No. 11 stated:

[n]egligence on the part of Candice Shuck does not bar recovery of the estate of Candice Shuck unless Candice Shuck's negligence was greater than the combined negligence of the defendants. However, the total amount of damages that the estate of Candice Shuck would otherwise be entitled to recover will be reduced by the court in proportion to the amount of negligence you attribute to Candice Shuck.

Court Instruction No. 12 read:

[t]he defendants have the burden of proving that the Plaintiff Candice Shuck was negligent. As to this defense, the defendants have the burden of proving the following:

(1) That the plaintiff (Candice Shuck) was negligent.

(2) That plaintiff's (Candice Shuck) negligence was the cause of Plaintiff's injury.

¶ 8 Appellant claims that these two instructions "in essence put before the jury the notion that they could determine whether Candice Shuck was legally negligent and then compare her negligence to the negligence of the [Respondents]." Appellant asserts that giving comparative negligence instructions in a medical malpractice case presents an opportunity to nullify every possible case against a physician for malpractice.

¶ 9 Respondents assert that a jury instruction on comparative negligence is appropriate in this action because it was Candice's negligence which caused her injury. They further claim that the jury never reached the issue of Candice's negligence because they concluded that Respondents were not negligent, and therefore, the issue of the jury instruction is moot.

¶ 10 We review jury instructions in a civil case for abuse of discretion. Federal Mutual Insurance Co. v. Anderson, 1999 MT 288, ¶ 44, 297 Mont. 33, ¶ 44, 991 P.2d 915, ¶ 44. Furthermore,

[a] district court has broad discretion in deciding whether to give or refuse a party's proposed jury instruction. In reviewing whether a particular jury instruction was properly given or refused, we must consider the instruction in its entirety, as well as in connection with the other instructions given and with the evidence introduced at trial.

In re Estate of Lande, 1999 MT 162, ¶ 44, 295 Mont. 160, ¶ 44, 983 P.2d 308, ¶ 44 (citing Moore v. Imperial Hotels Corp., 1998 MT 248, ¶ 21, 291 Mont. 164, ¶ 21, 967 P.2d 382, ¶ 21).

¶ 11 Appellant states, "[w]e urge that this issue of comparative negligence in a case like this because of some prior acts by the Plaintiff has simply never come up before or if it did it was simply rejected and never got appealed." While Appellant correctly asserts that this issue has not been directly addressed in Montana, other jurisdictions have given the matter significant consideration, often in the context of the related defense of contributory negligence. We find other jurisdictions' analyses of the defenses of contributory and comparative negligence in medical malpractice actions helpful in resolving this issue.

¶ 12 According to one author, "[c]ase law is replete with instances where the physician charged the plaintiff with contributory negligence for behavior that occurred before the patient sought treatment, but courts generally agree that the prior conduct should not be considered in assessing damages." Madelynn R. Orr, Comment, Defense of a Patient's Contribution to Fault in Medical Malpractice Actions, 25 Creighton L.Rev. 665, 667, (1992). Courts have, however, acknowledged the propriety of the defense of contributory or comparative negligence in certain circumstances. In an action for medical malpractice, the improper diagnosis of a patient's medical condition coupled with improper treatment resulted in the amputation of the patient's foot. Durphy v. Kaiser, 698 A.2d 459, 466 (D.C.1997). Defendants raised the defense of contributory negligence claiming that the patient had failed to cooperate in his treatment. In discussing the standard for contributory negligence the court stated, "[i]n medical malpractice cases, contributory negligence is a valid defense if the patient's negligent act occurs with that of the physician and creates an unreasonable risk of improper medical treatment." Durphy, 698 A.2d at 467. See also Champs v. Stone 74 Ohio App. 344, 58 N.E.2d 803 (1944) (patient was contributorily negligent when he allowed a "grossly intoxicated" physician to give him an injection which resulted in the patient's injury).

¶ 13 Courts have noted that in assisting a jury to decide a case involving the patient's fault as a defense in medical malpractice cases, it is necessary to first clarify the sequence of events in relation to the interwoven doctrines of contributory or comparative negligence, proximate cause, and avoidable consequences. Bryant v. Calantone, 286 N.J.Super. 362, 669 A.2d 286, 288 (1996). In Bryant, a patient with a heart condition was advised by his cardiologist that he must be given antibiotics upon having any type of dental work performed. According to the patient, when he arrived to have his teeth cleaned, the Dentist handed him a dose of medication and said "this is all you need." Bryant, 669 A.2d at 287-88. Within two weeks of treatment, the patient became very ill and required several serious heart surgeries. In addressing the defendant's claim that the district court erred in not issuing a jury instruction on comparative negligence, the court stated "the patient's conduct must be divided into three categories in determining whether the patient shares any fault and if so, what principles of law to apply to that fault." Bryant, 669 A.2d at 288.

¶ 14 "The three temporal headings under which the patient's conduct is to be examined are 1) the pre-treatment period 2) the treatment period during which the alleged malpractice occurred, and 3) the post-malpractice period." Bryant, 669 A.2d at 288. The Bryant court noted

[t]he pre-treatment health habits of a patient are not to be considered as evidence of fault that would have otherwise been pled in bar to a claim of injury due to the professional misconduct of a health professional. Such matters are germane to the issue of proximate cause exclusively.

Bryant, 669 A.2d at 289.

The Durphy court held similarly, stating

where the patient's negligent act merely precedes that of the physician and provides the occasion for medical treatment, contributory negligence is not a permissible defense. Where that occurs, the doctor's negligent act is considered an intervening cause which does not bar the patient from recovering.

Durphy, 698 A.2d at 467.

¶ 15 In Whitehead v. Linkous, M.D., 404 So.2d 377 (Fla.Dist.Ct.App.1981) patient Whitehead consumed...