Hoffer v. Shappard

• Decision Date: 28 September 2016
• Docket Number: Docket No. 42087
• Citation: 160 Idaho 868,380 P.3d 681
• Court: Idaho Supreme Court
• Parties: Randy HOFFER and Galyena Hoffer, husband and wife, as guardians of the minor child plaintiff, J.S.H., Plaintiffs–Respondents, v. Scott A. SHAPPARD, D.O.; Saint Alphonsus Regional Medical Center, dba Saint Alphonsus Medical Group; and Genesis Medical Center, P.A., Defendants–Appellants, and Stanley J. Waters, M.D; Stanley J. Waters, dba Americana Orthopaedics ; Shana L. Tubach, M.D.; and Saint Alphonsus Physicians, P.A., an Idaho corporation, Defendants.

160 Idaho 868
380 P.3d 681

Randy HOFFER and Galyena Hoffer, husband and wife, as guardians of the minor child plaintiff, J.S.H., Plaintiffs–Respondents,
v.
Scott A. SHAPPARD, D.O.; Saint Alphonsus Regional Medical Center, dba Saint Alphonsus Medical Group; and Genesis Medical Center, P.A., Defendants–Appellants,
and
Stanley J. Waters, M.D; Stanley J. Waters, dba Americana Orthopaedics ; Shana L. Tubach, M.D.; and Saint Alphonsus Physicians, P.A., an Idaho corporation, Defendants.

Docket No. 42087

Supreme Court of Idaho, Boise, September 2015 Term.

Filed: September 28, 2016

Powers Tolman Farley, PLLC, Boise, for appellants Scott A. Shappard, D.O. and Genesis Medical Center, P.A. Raymond D. Powers argued.

Brassey Crawford, PLLC, Boise, for appellant Saint Alphonsus Regional Medical Center. Andrew C. Brassey appeared.

Rossman Law Group, PLLC, Boise, for respondents. Eric S. Rossman argued.

HORTON, Justice.

160 Idaho 871

Scott Shappard, D.O., Genesis Medical Center, P.A., and St. Alphonsus Regional Medical Center (collectively "Providers") appeal from an $847,974.46 judgment entered against them after a jury trial. Randy and Galyena Hoffer brought this action on behalf of their minor child, J.H. The jury found that Dr. Shappard negligently and recklessly failed to diagnose J.H.'s medical condition. The district court denied Providers' post-trial motions seeking to correct the verdict, a new trial, and judgment notwithstanding the verdict (JNOV). Providers appeal from the denial of these motions and further assert that the district court erred at trial by refusing to send an exhibit back to the jury room for deliberations and in its jury instructions. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case relates to J.H.'s developmental dysplasia of the hip (DDH), which is an abnormality involving a joint dislocation at the hip. Early diagnosis of DDH in children is important because early treatment is much easier, less invasive, less complicated, and more effective. Risk factors for a child to develop DDH include: breach birth, female gender, premature birth, first-born child, and high birth weight. In order to diagnose DDH, a physician examines the child, looking for palpable hip instability, unequal leg lengths, asymmetrical skin folds, and irregular gait.

J.H., a female child, was born five weeks short of full term in September of 2008. She was Galyena's first child. Various doctors who examined J.H. during the first six weeks of her life did not observe signs of DDH.

Between November 13, 2008, and October 5, 2009, Dr. Shappard saw J.H. for five well-baby examinations. Evidence presented at trial indicated that J.H. had an asymmetrical skin fold at all five examinations. Galyena repeatedly asked Dr. Shappard, through verbal and written questions, about the fold but Dr. Shappard did not recognize the fold as a concern. Galyena repeatedly expressed concern, both verbally and in writing, that J.H.'s legs were not the same length. Dr. Shappard did not find a difference in leg length. At J.H.'s final examination by Dr. Shappard, Galyena asked Dr. Shappard about J.H. walking tip-toe on only one leg. Galyena's testimony and notes regarding her questions reflect that Dr. Shappard responded that such tip-toe walking was normal for children until age two. Galyena also testified that Dr. Shappard never asked to see J.H. walk with parental assistance.

One of the Hoffers' expert witnesses, Dr. David Butuk, opined that Dr. Shappard failed to comply with the community standard of health care practice because of his disregard for the presence of an obvious asymmetrical skin fold, a difference in leg length, and repeated expressions of parental concern. Dr. Butuk testified that: "Any parent complaint that comes on repeated visits of any concern like that, it's a big red flag.

380 P.3d 685

160 Idaho 872

The standard of care is that you have to address that and start moving forward with other ways."

J.H. subsequently had problems while learning to walk that appear to have resulted from DDH. Because of these problems, the Hoffers took her to an orthopedic specialist, Dr. Stanley Waters, for two visits in February and December of 2010. Dr. Waters recognized that J.H. had DDH, but did not tell the Hoffers that she needed immediate treatment. Galyena testified that Dr. Waters told her that "God and nature will take care" of J.H.'s hip.

In May of 2012, the Hoffers took J.H. to Dr. Larry Showalter. Dr. Showalter identified an inch and a half leg difference and the presence of an asymmetrical skin fold. Dr. Showalter immediately ordered x-rays and subsequently performed open reduction surgery in August of 2012, when J.H. was four years old. He testified that the results of the surgery have "so far" been good, but there are risks of "big complications" in the future.

The jury received evidence for nearly two weeks. In addition to medical testimony, the jury heard testimony about J.H.'s future damages. The Hoffers' vocational rehabilitation expert, Douglas Crum, testified that J.H. would need two to three hip replacement surgeries during her lifetime, each resulting in about a 15% loss of function. The Hoffers' economic expert, Dennis Reinstein, testified as to the present value of an individual's expected earning capacity based on four different levels of education.

By special verdict, the jury found that Dr. Shappard had failed to meet the applicable standard of health care practice and that Dr. Shappard's conduct was reckless. The jury apportioned 20% fault to Dr. Waters¹ and the remaining 80% to Dr. Shappard. The jury awarded $289,000 in non-economic damages and $750,000 in economic damages. Providers' counsel received permission from two jurors to speak with them. The two jurors told Providers' counsel that the jury had inadvertently switched the numbers for the non-economic and economic damages award on the special verdict form, but the figures were otherwise correct. Affidavits to this effect from both jurors were filed. The other ten jurors, including the presiding juror, did not speak with Providers' counsel.

The district court entered judgment against Providers. Providers moved for JNOV, a new trial, and to correct the verdict. The district court denied these motions. Providers timely appealed.

II. STANDARD OF REVIEW

"A trial court has broad discretion in ruling on a motion for a new trial." Blizzard v. Lundeby , 156 Idaho 204, 206, 322 P.3d 286, 288 (2014). When considering a challenge to a discretionary decision by the trial court, we consider:

(1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standard applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason.

Id. (quoting Burggraf v. Chaffin , 121 Idaho 171, 173, 823 P.2d 775, 777 (1991) ). "The trial court is in a far better position to weigh the demeanor, credibility, and testimony of witnesses, and the persuasiveness of all the evidence. Appellate review is necessarily more limited." Quick v. Crane , 111 Idaho 759, 770, 727 P.2d 1187, 1198 (1986). "Although this Court necessarily must review the evidence, it primarily focuses on the process by which the district court reached its decision, not on the result of the district court's decision." Karlson v. Harris , 140 Idaho 561, 568, 97 P.3d 428, 435 (2004).

This Court reviews jury instructions to determine "whether the instructions as a whole fairly and adequately presented the issues and stated the law." Schmechel v. Dillé , 148 Idaho 176, 187, 219 P.3d 1192, 1203 (2009). "Whether the jury instructions fairly and adequately present the issues and state the applicable law is a question of law over

380 P.3d 686

160 Idaho 873

which this Court exercises free review." Perry v. Magic Valley Reg'l Med. Ctr. , 134 Idaho 46, 51, 995 P.2d 816, 821 (2000). "Reversible error occurs if an instruction misleads the jury or prejudices a party." Id.

"[T]he interpretation of a rule of evidence, like the interpretation of a statute, is reviewed de novo." State v. Moore , 131 Idaho 814, 821, 965 P.2d 174, 181 (1998).

This Court employs the same standard of review as the district court when reviewing a decision to grant or deny a motion for JNOV. April Beguesse, Inc. v. Rammell , 156 Idaho 500, 509, 328 P.3d 480, 489 (2014).

A jury verdict must be upheld if there is evidence of sufficient quantity and probative value that reasonable minds could have reached a similar conclusion to that of the jury. In reviewing a grant or denial of a motion for JNOV the court may not reweigh evidence, consider witness credibility, or compare its factual findings with that of the jury. The court reviews the facts as if the moving party had admitted any adverse facts, drawing reasonable inferences in favor of the non-moving party.

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