Holecek v. Janke

• Decision Date: 23 September 1969
• Docket Number: No. 8538,8538
• Citation: 171 N.W.2d 94
• Parties: Art HOLECEK, Plaintiff and Respondent, v. Frederick Gust JANKE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 94

171 N.W.2d 94

Art HOLECEK, Plaintiff and Respondent, v. Frederick Gust JANKE, Defendant and Appellant.

Civ. No. 8538.

Supreme Court of North Dakota.

Sept. 23, 1969.

Syllabus by the Court

1. In an action for damages for personal injury, it is proper to receive evidence from a treating medical expert as to the options of treatment available to the patient to show the course of treatment normal to a known condition.

2. In order to recover estimated expenses for future surgery the plaintiff has burden of showing by competent medical tstimony a reasonable certainty or probability that future surgery will be required.

3. Admission in evidence of estimated costs of possible future surgery in a personal injury action was error as it was not based on reasonable certainty or probability that the surgery would be performed and this evidence, coupled with an instruction that the jury could allow the reasonable value of future surgery, which it may find reasonably certain to be required as damages, makes the error prejudicial.

4. Upon appeal from an order denying a motion for a new trial made on ground of excessive damages, appearing to have been given under the influence of passion or prejudice, and it appearing that the passion or prejudice affected only the amount of damages allowed and did not influence the findings of the jury on other issues in the case, the Supreme Court has the power to order a reduction of the verdict in lieu of a new trial. Rule 59(b)(5), N.D.R.Civ.P.

5. The qualifications of an expert witness are primarily for determination by the trial court and its determination with respect thereto will not be reversed unless it appears that court abused its discretion.

Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for plaintiff and respondent.

Wattam, Vogel, Vogel & Peterson, Fargo, for defendant and appellant.

TEIGEN, Chief Justice.

The defendant has appealed from an order denying his motion for a new trial. The plaintiff was awarded damages in the amount of $22,000 by a jury for personal injuries sustained in an automobile accident. The defendant does not claim the jury's finding of liability is not supported by the evidence. It is his claim that erroneous reception of evidence and erroneous instructions induced a verdict that is excessive as a matter of law.

The plaintiff, age 51, was seated in his automobile which was parallel parked on Fifth Street in the city of Breckenridge, Minnesota. This street is also known as U.S. Highway No. 75. The defendant's automobile, operated by the defendant, collided with the rear end of the plaintiff's automobile and, as a result, the plaintiff was injured. The collision also caused damage to the plaintiff's automobile but the plaintiff does not seek damages therefor in this action.

The defendant, in his motion for a new trial, has set forth a number of specifications of claimed error, four of which he has abandoned on this appeal. The remaining specifications have been grouped according to subject matter for purposes of argument. Specifications of Error II, IV, VI, VIII, X and XI are grouped claiming prejudicial error occurred in the court's ruling on the evidence and the instructions to the jury with regard to possible future surgery. The plaintiff received flexion extension injury to the back and neck. Dr. Covey, an orthopedic surgeon, testified that in his opinion the plaintiff's injury resulted in a 25 to 30 per cent disability to his spine and neck and 20 per cent disability to his body. He testified the injury was permanent and progressive and that the plaintiff will continue to suffer pain. The defendant argues the court erred in permitting the plaintiff's witness, Dr. Covey, to testify concerning the possibility of future surgery as follows:

'Q So far as the future is concerned, and based on your profession, what option, if any, is open to Mr. Holecek, so far as receiving some relief from that pain is concerned?

'MR. BRIGHT: I am going to object to that. That's speculative.

'MR. HANSEN: It's the doctor's opinion.

'THE COURT: Overruled.

'THE WITNESS: He can continue to use the heat on his neck and the aspirin for pain. He can use the physical therapy or chiropractic treatments as necessary for his pain.

'There is one other procedure which I thought might be worthwhile, to obtain an opinion about, and that was the possibility of spinal fusion in the area of the osteoarthritis of his neck. 'Q And, Doctor, this other option you have mentioned--in other words, Mr. Holecek can continue treating as he is now. That's one thing open to him.

'A Yes.

'Q And another is spinal fusion?

'A Yes.

'Q Doctor, would you explain how a spinal fusion would give Mr. Holecek any relief.

'MR. BRIGHT: I'm going to object to that. It is speculative and a possibility.

'MR. HANSEN: It's an option.

'MR. BRIGHT: It is a possibility.

'THE COURT: I'll let him testify.

'THE WITNESS: The object of the spinal fusion is to remove motion from the painful joints, and the procedure is to put a bone graft across the arthritic, the painful joints. It would be necessary to--in my opinion--fuse at least three, and possibly four, joints in his neck.

'Q So far as the future is concerned, is this one of the choices that is open to Mr. Holecek, so far as his neck is concerned?

'A Yes.

'Q And, Doctor, when you refer to a fusion, would you step down here to the diagram and indicate to the jury and court what you would do as a orthopedic surgeon? First of all, are you qualified to carry out that type of operation?

'A Yes.

'Q Do you do fusions in your practice every month?

'A Yes.

'Q Explain what this fusion would involve as far as Mr. Holecek is concerned, if he elected to have it carried out.

'MR. BRIGHT: Now just a minute. would like to ask just a question or two, Doctor.

'Q BY MR. BRIGHT: There are no plans at present for a fusion; is that correct?

'A None that I plan to do.

'Q As a matter of fact, as far as any further thing, you wanted or you suggested that he might go to Mayo for possibly another opinion.

'A Yes.

'MR. BRIGHT: I am going to object to this line of questioning as completely speculative, not within the realm of reasonable medical certainty.

'MR. HANSEN: Now just a moment. I'd like to ask a couple of additional questions.

'Q BY MR. HANSEN: Doctor, have you explained to Mr. Holecek what the options are, so far as the future is concerned, with respect to his nect?

'A Yes.

'Q Have you discussed with him what your opinion is on the matter?

'A Yes, I have.

'Q And have you suggested that he obtain another opinion on the same subject?

'A Yes.

'Q And would you state what you have told Mr. Holecek your opinion is, so far as the future is concerned and this elective process is concerned.

'A Do you mean in regard to the possibilities?

'Q Yes, and what would happen.

'A I told Mr. Holecek that the fusion, if it were to be done, would be a rather extensive procedure. It would involve at least three, and possibly four, joints and, for that reason, I was rather hesitant to perform it myself without some further consultation. If there were just one or two joints involved, the procedure would not be as major a one, or as subject to failure as a fusion over three or four vertebrae.

'Q So you have left it up to Mr. Holecek as to what he wants to do, whether he will elect surgery or not?

'A Yes.

'Q Would you explain, if he elects to have this procedure, what would be done.

'MR. BRIGHT: Same objection--speculative.

'MR. HANSEN: It's an option that this man faces. If he elects surgery, certainly we are entitled to show what he must undergo.

'MR. BRIGHT: No foundation.

'MR. HANSEN: It's a matter of option.

'THE COURT: Overrule the objection; he may answer.

'Q BY MR. HANSEN: Explain now what this fusion would involve, Doctor.

'A There are two main ways of doing a fusion. One is to approach the neck from in front, remove the discs from the vertebrae that are involved, and replace them with a piece of bone so as to make the vertebrae grow together. The piece of bone is usually obtained from the pelvic bone.

'The other procedure which is done is a posterior fusion which involves bone grafts along the back side of the vertebrae, and you also obtain bone from the pelvic bone.

'Q In other words, when you say 'pelvic' bone, you would actually remove bone from one of Mr. Holecek's hips and take it and graft it into his neck?

'A Yes.

'Q How many areas of the neck would you recommend be covered in this fusion, Doctor?

'MR. BRIGHT: I'd like a continuing objection to this line of testimony.

'THE COURT: You may have.

'MR. HANSEN: You may answer.

'THE WITNESS: I would think at least, certainly three--and possibly four--levels should be fused.

'Q BY MR. HANSEN: If this operation were carried out, could you tell the jury how long Mr. Holecek would be hospitalized?

'MR. BRIGHT: Same objection--speculative, not with reasonable medical certainty, and it is not admissible.

'THE COURT: He may answer.

'THE WITNESS: He would be in the hospital approximately two weeks.

'Q BY MR. HANSEN: And you are pretty certain it would take at least that long, based on experience in cases of this type?

'A Yes.

'Q After he has been in the hospital two weeks, would there be any further period of time for recovery?

'MR. BRIGHT: Speculative.

'THE COURT: He may answer.

'THE WITNESS: He'd have to wear a brace on his neck for at least three months.

'Q BY MR. HANSEN: What type of brace would that be, Doctor, could you briefly describe it?

'A The usual type is what we call a 'four-poster' brace involving a collar around the jaw and around the base of the skull, and another collar fits around the shoulders and between this are metal uprights which hold the neck and keep it from bending and turning.

'Q He would have to wear that how long?

'A Three months.

'Q What would he do at night?

'A He would wear it at night.

'Q And so far as the surgical cost of the type of elective procedure that you have just described, how much would the...