Heitz v. Carroll

• Court: Idaho Supreme Court
• Writing for the Court: BAKES; BISTLINE
• Citation: Heitz v. Carroll, 117 Idaho 373, 788 P.2d 188 (Idaho 1990)
• Decision Date: 27 February 1990
• Docket Number: No. 17355,17355
• Parties: Richard H. HEITZ, as surviving spouse and Personal Representative of the Estate of Mary Jane Heitz, deceased; Richard H. Heitz, Jr., Russel Todd Heitz and Robin Irene Heitz, children and heirs of deceased, Plaintiff-respondents, v. E.G. CARROLL, M.D., and Mrs. E.G. Carroll, husband and wife, Defendant-appellants.

Page 188

788 P.2d 188

117 Idaho 373

Richard H. HEITZ, as surviving spouse and Personal Representative of the Estate of Mary Jane Heitz, deceased; Richard H. Heitz, Jr., Russel Todd Heitz and Robin Irene Heitz, children and heirs of deceased, Plaintiff-respondents, v. E.G. CARROLL, M.D., and Mrs. E.G. Carroll, husband and wife, Defendant-appellants.

No. 17355.

Supreme Court of Idaho.

Feb. 27, 1990.

Quane, Smith, Howard & Hull, Boise, for appellants. Kathryn A. Sticklen argued.

Smith & Peart, Fruitland, and Richter-Wimberley, Spokane, Wash., for respondents. F.G. Fancher argued.

BAKES, Chief Justice.

Plaintiffs/respondents sued defendants/appellants to recover for medical malpractice and for the wrongful death of Mary Heitz. The case was tried, and the jury rendered a verdict for defendants. Plaintiffs then moved for a j.n.o.v. or, in the alternative, for a new trial. The j.n.o.v. motion was denied, but the new trial motion was granted. Defendants appeal the grant of a new trial, alleging, inter alia, that the trial court's post-verdict rulings regarding the special verdict form were legally erroneous. We reverse and remand for further proceedings.

I

Mary Heitz had been a patient of Dr. Eugene Carroll since 1965. On June 3, 1981, Mary went to Dr. Carroll for a physical examination and pap smear. At that time, upon a routine urinalysis, a microscopic trace of blood was discovered which Dr. Carroll attributed to menstrual bleeding. Almost a year later, on April 19, 1982, Mary returned with complaints of lower abdominal pain. A second urinalysis showed microscopic moderate blood in the urine, and Dr. Carroll diagnosed it as diverticulitis.

Almost fifteen more months passed and on July 7, 1983, Mary went to Dr. Carroll's office with complaints of burning on urination for two days. Her urinalysis again showed microscopic blood, as well as white blood cells. Dr. Carroll diagnosed a urinary tract infection and treated Mary with antibiotics. He also, by routine practice, would have advised Mary to return upon completion of the medication, but his notes do not indicate that he did. Mary did not return, but instead appeared on August 5, 1983, for an unrelated reason and did not mention any urinary complaints.

The next time Mary complained of urinary symptoms was March 8, 1984. An antibiotic was again prescribed. She returned on March 30, and again on April 23, 1984, for an unrelated reason, but expressed no urinary complaints. Then, on April 26, 1984, she returned with complaints of urination frequency and burning upon urination. A microscopic evaluation revealed a few red blood cells and numerous white blood cells. An antibiotic was again prescribed.

On July 19, 1984, Mary returned complaining of urinary tract symptoms over the summer. At that time there was less microscopic blood in the urine than had been present in April, but many white blood cells were still present. An antibiotic was again prescribed. Mary came back on August 1, 1984, with continuing urinary complaints and was placed on a different antibiotic for one week. Mary, however, did not return for a follow-up.

On October 11, 1984, Mary went to the emergency room at Holy Rosary Hospital in Ontario, Oregon, with visible blood in her urine. The doctor there did an exam, performed some tests, gave her an antibiotic and a pain killer, and instructed her to follow up with Dr. Carroll. Instead of returning to Dr. Carroll, Mary consulted Dr. Bockenstette, a urologist in Nampa, Idaho, on October 16, 1984. Dr. Bockenstette treated her for a urinary infection by prescribing antibiotics and asked her to return for a follow-up visit.

On October 18, 1984, Mary went back to Dr. Carroll complaining of pain in her right arm above the elbow. Dr. Carroll's records make no note of any urinary tract problem. Dr. Carroll does not remember whether he inquired as to the hospitalization, though he was aware of it because the hospital had reported Mary's visit to him earlier.

Mary returned to Dr. Bockenstette when the urinary tract problem did not resolve itself, and Dr. Bockenstette performed X-rays of Mary's bladder (IVP's) on November 6, 1984, and discovered a tumor. Subsequently, a cystoscopy and biopsy was performed and the tumor was diagnosed as bladder cancer. There was also evidence of spread, or metastasis, to the bone in the right arm, causing the pain for which Mary had seen Dr. Carroll earlier.

After consultation with Dr. Donald Skinner, professor of surgery and chairman of the Division of Urology at the U.S.C. School of Medicine, a treatment program was set up. It consisted of (1) a series of chemotherapy and radiation treatments, and (2) surgery in May, 1985, to remove the anterior pelvic organs, including the bladder, the urethra portion of the vagina, the right kidney and ureter, and the lymph nodes. In addition, an artificial bladder was constructed from part of Mary's intestine.

In the fall of 1985, Mary developed headaches and was diagnosed as having a brain tumor. There was expert testimony that the tumor was a metastasis from the bladder cancer. She had surgery to remove the tumor and subsequently underwent radiation therapy until January 21, 1986.

Mary died 28 days later. Following Mary's death, an autopsy was performed by Dr. Donndelinger. The autopsy indicated that the cause of death was a large blood clot that plugged the arteries from the right side of the heart to the lungs.

Plaintiffs brought this action to recover for the wrongful death of Mary Heitz, allegedly caused by Dr. Carroll's negligence. At trial Dr. Donndelinger testified that Mary's blood clots were due to her inactivity occasioned by the treatment of her brain tumor. Both Dr. Donndelinger and Dr. Skinner testified that in their opinion Mary's death was a result of complications arising out of her bladder cancer. The defendants presented no witnesses to testify on the cause of death, although through cross examination, they established that Mary's obesity may have been a factor.

The case was submitted to the jury on interrogatories contained in a special verdict form. At issue here is the first question on the special verdict form which reads:

QUESTION NO. 1: Was there negligence, as a health care provider, on the part of the defendant E.G. Carroll, M.D., which was a proximate cause of the death of Mary Heitz?

Answer: YES NO

After some deliberation, the jury submitted the following written question to the trial judge:

Your Honor!

Can you clarify Question No. 1 as to whether Dr. Carroll can be negligent without being responsible for her death?

A.J. Hendricks

Foreman

The district judge, Hon. Wayne P. Fuller, answered the question as follows:

Question No. 1 requires you to decide two things:

1. Was there negligence, as a health care provider, on the part of Dr. Carroll,

2. Which was a proximate cause of the death of Mary Heitz.

Please review the applicable instructions and make your decision in accord with your factual findings.

November 18, 1987

5:50 p.m.

Wayne P. Fuller

District Judge

Within a short period of time the jury returned its special verdict, in which only three jurors answered "yes," and nine jurors answered "no," to Question No. 1 of the Special Verdict Form. Accordingly, the trial judge entered judgment in favor of the defendants.

Five days later, plaintiffs moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial. A hearing was held on the motions. The court found, based upon an analysis of all the evidence presented, that there was substantial evidence upon which the jury could have found in favor of the defendants as it did. Accordingly, the motion for j.n.o.v. was denied. The court, however, took under advisement the alternative motion for a new trial. Defendants' counsel then lodged a memorandum in opposition to granting a new trial. Plaintiffs did not submit any additional written arguments. The district judge ultimately filed a memorandum decision and order granting plaintiffs' motion for a new trial because, inter alia, he found that the verdict was against the clear weight of the evidence, and, alternatively, "[t]he special verdict form was erroneous in that it did not permit the jury to consider awarding damages to the Plaintiffs for the medical expenses incurred prior to death caused by the spread of the cancer; these medical expenses would be recoverable without finding a proximate cause between any negligence and the death of MH [Mary Heitz]." Defendants/appellants now appeal from the trial court's order granting a new trial.

II

Appellant raises several issues regarding the propriety of the trial judge's ruling on the plaintiff-respondent's motion for new trial. Appellant alleges that the trial court made an error in law when it concluded, in the post trial proceedings, that the interrogatories in the special verdict form, "did not permit the jury to consider awarding damages to the Plaintiffs for the medical expenses incurred prior to death," irrespective of the jury's finding that there was no negligence on the part of the defendant, Dr. Carroll, which was a proximate cause of the death of the plaintiff Mary Heitz. The trial court sua sponte concluded that the jury had been improperly instructed, and that conclusion figured into the trial court's analysis in granting the new trial. ¹ However, we conclude that the trial court erred in its conclusion that the interrogatories in the special verdict were grounds for granting a new trial.

This Court has long recognized that "the parties to an action are bound by the theory on which they try it." Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 776, 22 P.2d 147, 150 (1933); Aetna Casualty & Surety Co. v. Wedgwood, 57 Idaho 682, 687, 69 P.2d 128, 129 (1937). In this case both parties submitted the case to the jury with requested instructions and proposed special verdict interrogatories which advised the jury that in order for the...