Howe v. Thompson, 20101

• Decision Date: 05 November 1991
• Docket Number: No. 20101,20101
• Citation: 186 W.Va. 214,412 S.E.2d 212
• Court: West Virginia Supreme Court
• Parties: Carroll R. HOWE, as Administrator of the Estate of Florence J. Howe, Plaintiff Below, Appellant, v. James THOMPSON, M.D., Defendant Below, Appellee

Page 212

412 S.E.2d 212

186 W.Va. 214

Carroll R. HOWE, as Administrator of the Estate of Florence J. Howe, Plaintiff Below, Appellant, v. James THOMPSON, M.D., Defendant Below, Appellee

No. 20101.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 24, 1991.

Decided Nov. 5, 1991.

Syllabus by the Court

1. "Even if a requested instruction is a correct statement of the law, refusal to grant such instruction is not error when the jury was fully instructed on all principles that applied to the case and the refusal of the instruction in no way impeded the offering side's closing argument or foreclosed the jury's passing on the offering side's basic theory of the case as developed through the evidence." Syllabus point 2, Shia v. Chvasta, 180 W.Va. 510, 377 S.E.2d 644 (1988).

2. " 'It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given.' Syl. Pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966)." Syllabus point 3, Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986).

3. "A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident." Syllabus point 3, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).

4. It is unnecessary for a trial judge to require a jury to resume deliberations to assess damages where the jury, which had been instructed to return both general and special verdict forms, returns a partial verdict which does not assess damages, but clearly indicates that a defendant's liability may not result in damages because the fault allocated to the plaintiff by the jury equals or exceeds 50%.

James A. McKowen, Hunt & Wilson, Charleston, for appellant.

Herbert G. Underwood, Steptoe & Johnson, Clarksburg, for appellee.

BROTHERTON, Justice:

This appeal involves a suit resulting from the death of Mrs. Florence Howe, who died on April 21, 1985. Her husband, Mr. Carroll Howe, claims that the treatment rendered by her physician, James Thompson, M.D., actually increased her risk of having a heart attack, the condition of which she eventually died. Mrs. Howe had several medical problems, including obesity, diabetes, hypertension, high cholesterol and triglycerides, in addition to a prior myocardial infarction.

Following Mrs. Howe's death, Mr. Howe filed a complaint in the Circuit Court of Harrison County on April 16, 1987, naming Dr. Thompson, Ronald Meredith, R.Ph., and Lumberport Pharmacy, Inc. as defendants. Mr. Meredith and the pharmacy were dismissed from the case following settlement. The case against Dr. Thompson went to trial on October 3, 1989.

At trial, testimony was given that Mrs. Howe's diabetes was not controllable by medication and that she refused to take insulin injections. Dr. Thompson advised her that if she would lose weight, she would probably not need any insulin. However, Mrs. Howe did not lose any appreciable amount of weight. Dr. Thompson also testified that at one time, he had considered by-pass surgery for Mrs. Howe but that her obesity precluded her as a candidate for the surgery. Expert opinions from cardiologists were presented by both the plaintiff and the defendant, and it was noted at trial that occasionally, Mrs. Howe did not take her medicine.

The jury retired on October 12, 1989, following the instructions and closing arguments. The plaintiff requested that a specific instruction on the "eggshell plaintiff" be given, which was refused by the court. At that time, over the objection of the plaintiff, the jury was given a general verdict form and a special verdict form, allowing the jury to allocate percentage of fault to the plaintiff's decedent, Florence Howe, the defendant, and, if necessary, to the settling defendants.

During its deliberations, the jury returned to the judge to ask a question regarding the allocation of negligence. They stated:

We are all in agreement that Dr. Thompson was negligent in some areas of care. However we do not feel this contributed more than 20% to Mrs. Howe's injuries (death).

We don't feel the pharmacy/Mr. Meredith contributed to her death.

We don't feel that Mrs. Howe contributed to her own death.

We do feel however that all her medical problems, (heart disease, diabetes, high blood pressure, high cholesterol, obesity), prior to Dr. Thompson's care of this patient were the major contributing factors to her death.

Question: Can we assign a major portion of the % of fault to her complicated medical conditions prior to her care by Dr. Thompson? We do not want to assign fault to her personally but don't feel Dr. Thompson contributed significantly to her death.

The plaintiff requested that the jury be instructed to return its verdict for the plaintiff and against the defendant and proceed to determine the amount of damages. The court responded negatively to the jury's last question, stated above, and instructed the jury to complete the general verdict form.

The jury returned a second time to ask two questions of the court:

Do we have to answer only the general verdicts # 1 and # 2?

or

Can we still use the special verdict sheet to proportion the % of fault?

The plaintiff then requested that the jury be instructed that it was to complete only the general verdict form and not use the special verdict form, which would allocate negligence among the parties. At this point, the court instructed the jury that they must complete both the general verdict and special verdict forms.

Shortly thereafter, the jury returned to deliver its verdict. In its verdict, the jury found for the plaintiff, but allocated 60% of the fault to the plaintiff's decedent, Mrs. Howe, 40% to the defendant, Dr. Thompson, and none to Ronald Meredith or Lumberport Pharmacy.

The plaintiff again requested that the jury be instructed that it was to complete only the general verdict form and not the special verdict form. The court then instructed the jury to return to its room and proceed to determine the amount of damages which the plaintiff had suffered as a proximate result of the defendant's negligence.

The jury again returned with a question:

We were confused about our instructions. We understand that if we assigned only a portion of the blame (less than 50%) to Dr. Thompson then no $ damages would be awarded.

We were in agreement that Dr. Thompson was not 100% at fault. Since we agreed that he was 40% at fault it seemed that the only verdict we could come up with was for the plaintiff (as per instructions); we thereafter had to assign a % to Mrs. Howe as no other choices were available.

We awarded for the plaintiff since that was the only way we could assign any portion of fault to Dr. Thompson. We do not think he was over 50% at fault.

Please advise about our confusion.

Also, can we award no $ amount?

The court instructed the jury, over the objection of the plaintiff, that it could award no money damages but that it should recall there were medical expenses and burial expenses that had been stipulated by the parties. The plaintiff attempted to have the jury recalled so that it could be instructed to consider "uncontroverted" evidence as to lost earnings of the plaintiff's decedent and loss of comfort, society, and companionship by the plaintiff's decedent's family members. The court refused.

The jury then returned with a verdict for the plaintiff and against the defendant in the amount of $10,000. The allocation of fault on the verdict form remained the same. Thereafter, Mr. Howe moved for a judgment notwithstanding the verdict on the issue of liability in accordance with the jury's findings of fact and for a new trial on the issue of damages. On November 7, 1989, the court entered an order which stated that:

In accordance with said verdict, it is ORDERED that the plaintiff, Carroll R. Howe, administrator of the estate of Florence J. Howe, recover nothing of the defendant, James Thompson, M.D., and it is further ORDERED that the defendant, James Thompson, M.D., shall recover of the plaintiff, Carroll R. Howe, as administrator of the estate of Florence J. Howe, the costs of this civil action as taxed by the clerk of this court, to all of which the plaintiff, by counsel, objects and excepts.

The Circuit Court of Harrison County denied the plaintiff's motion for a judgment notwithstanding the verdict, a motion for relief from judgment on the issue of liability, and a motion for a new trial on the issue of damages on February 1, 1990. This proceeding is an appeal by the appellant, the plaintiff below, from that final ruling.

The appellant, Mr. Howe, alleges numerous errors resulting from the trial below. The first error revolves around the court's refusal to give an instruction defining negligence which was proffered by the plaintiff. Secondly, the appellant complains that the court also refused to give an instruction proffered by the appellant which stated that the defendant took the plaintiff as he found her, also known as the "eggshell plaintiff" instruction. Next, the appellant argues that the court should not have allowed the jury to consider negligence on the decedent's part in allocating fault when "there was not scintilla of evidence to support a finding of negligence on her part." Finally, the appellant maintains that the court erred in refusing to grant a new trial on the issue of damages. We find the remaining assignments of error to be meritless and accordingly, do not address them.

The first assignment of error deals with the lower court's refusal to give appellant's instruction defining negligence. The instruction proffered by the plaintiff reads as follows:

Since the allegations in this case are based, in main, upon negligence, it is necessary that you know what...