Hunt v. Methodist Hosp.

• Decision Date: 05 June 1992
• Docket Number: No. S-89-444,S-89-444
• Citation: 485 N.W.2d 737,240 Neb. 838
• Parties: Audrey HUNT, Appellant and Cross-Appellee, v. METHODIST HOSPITAL and John Smith, M.D., Appellees, and James M. Horrocks, M.D., Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 737

485 N.W.2d 737

240 Neb. 838

Audrey HUNT, Appellant and Cross-Appellee, v. METHODIST HOSPITAL and John Smith, M.D., Appellees and James M. Horrocks, M.D., Appellee and Cross-Appellant.

No. S-89-444.

Supreme Court of Nebraska.

June 5, 1992.

Syllabus by the Court

1. Pleadings. The decision as to whether to allow or deny amendments to the pleadings after a trial has begun is a matter for the discretion of the trial court.

2. Pleadings. Pleadings may not be amended at certain stages of the trial so as to change the issues.

3. Trial: Witnesses. The extent to which a witness on redirect examination may explain testimony elicited on cross-examination lies primarily in the discretion of the trial court.

4. Trial: Evidence: Rules of Evidence. Evidence which does not have any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence is not relevant.

5. Trial: Evidence: Rules of Evidence. Summaries may be allowed into evidence when the volume of documents being summarized is so large as to make their use impractical or impossible.

6. Verdicts: Jurors: Rules of Evidence. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.

7. Verdicts: Juries. A juror may testify as to whether the jury considered prejudicial information emanating from sources extraneous to the evidence presented at trial, but a juror's testimony may not be used to establish the effect of such information upon the jury or its influence on the jury or jury motives, methods, misunderstanding, thought processes, or discussions during deliberations which entered into the verdict.

8. Constitutional Law: Jury Trials. Under the constitutional guarantee of jury trial, a party litigant is entitled, unless he or she waives the right, to have his or her case tried by 12 impartial qualified jurors. Implicit in "trial" by 12 impartial qualified persons is the concept that there be consideration of the issues and the evidence and deliberation thereon upon the part of all 12.

9. Trial: Juries. It is improper for jurors to discuss a case among themselves until all the evidence has been presented, counsel have made final arguments, and the case has been submitted to them after final instructions by the trial court.

10. New Trial: Jury Misconduct: Proof. In order for a new trial to be ordered because of juror misconduct, the party claiming the misconduct has the burden to show by clear and convincing evidence that prejudice has occurred.

11. Verdicts: Jury Misconduct: Proof. Proof of mere indiscretion in the conduct of a juror is not sufficient to avoid a verdict unless the proof establishes that the juror's conduct was of such character that prejudice may be presumed.

12. Verdicts: Jury Misconduct. Juror misconduct complained of must relate to a matter in dispute relevant to the issues in the case, and the misconduct must have influenced the jurors in arriving at a verdict.

13. Jury Misconduct: Trial. When an allegation of juror misconduct is made and is supported by a showing which tends to prove that serious misconduct occurred, the trial court should conduct an evidentiary hearing to determine whether the alleged misconduct actually occurred. If it occurred, the trial court must then determine whether it was prejudicial to the extent the defendant was denied a fair trial. If the trial court determines that the misconduct did not occur or that it was not prejudicial, adequate findings should be made so that the determination may be reviewed.

Daniel B. Cullan and Virginia L. Cullan, of Cullan & Cullan, Omaha, for appellant.

Thomas J. Shomaker and Clark J. Vanskiver, of Sodoro, Daly & Sodoro, Omaha, for appellee Methodist Hosp.

Fredric H. Kauffman and Kathleen A. Jaudzemis, of Cline, Williams, Wright, Johnson & Oldfather, Omaha, for appellee Smith.

William M. Lamson, Jr., and Lyman L. Larsen, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee Horrocks.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

The plaintiff, Audrey Hunt, was admitted to the defendant Methodist Hospital on July 11, 1984, by the defendant Dr. James M. Horrocks, an internist, for treatment of an ulcer on her left foot. After consultation with the defendant Dr. John Smith, a vascular surgeon, it was determined that an arteriogram should be performed to determine whether an arterial bypass operation might improve the blood flow to the plaintiff's leg.

An arteriogram was performed by the defendant Smith on July 13, 1984. An arterial bypass operation was performed on July 16, 1984. This malpractice action is concerned only with complications which developed following the arteriogram procedure and resulted in serious injury to the plaintiff's arm.

The arteriogram was performed by introducing a catheter into the patient's right axillary artery. Bleeding at the site where the artery is punctured is the most common risk of an arteriogram, and the plaintiff was monitored for this complication. No nurse, doctor, or medical student noted any bleeding at the puncture site during the first 6 hours following the procedure, which is the critical time period following the arteriogram.

On July 17, 1984, a large ecchymotic area was noted by a nurse on the plaintiff's posterior right upper arm. An ecchymosis is evidence of blood in the tissue and is very common following puncture of an artery or vein.

The plaintiff was monitored by Horrocks, Smith and his associate, Dr. Eugene A. Waltke, and by medical students and nurses. From July 17 through 21, 1984, there were no significant findings relating to Hunt's right arm. On July 21, the physicians diagnosed a venous thrombosis in the plaintiff's right arm because of massive swelling in her arm. The physicians then treated her arm for this condition.

From July 21 to 25, there was no evidence of permanent paresis in the plaintiff's arm, and it appeared that she was responding to the treatment. On July 25, the plaintiff's condition changed in that her right arm became pale and cool, and there was no pulse. Following these changes, Dr. Waltke performed surgery on the arm and discovered that the plaintiff was bleeding from the axillary artery. Dr. Waltke performed that surgery because Dr. Smith was out of town.

The blood from the leaking puncture site compressed the artery, so that the blood flow to the nerves in the lower part of the arm and hand was inadequate. As a result, some of the nerves in the lower extremity died, and the plaintiff now has a claw hand and has lost the use of her right arm.

The case was finally tried in 1989. The jury returned a verdict for the defendants, and the plaintiff has appealed.

In the plaintiff's first assignment of error, she alleges that the trial court erred in refusing to give a requested instruction that Dr. Waltke was the agent of Dr. Smith and that if the jury found that Dr. Waltke was negligent, it should find that Dr. Smith was negligent. In her brief, the plaintiff does not argue why it was error for the trial court to refuse her requested instruction. Instead, she argues that the trial court erred by refusing to allow her to amend her petition to conform to the evidence that Waltke was the agent of Smith. No error was assigned regarding the refusal of the trial court to permit the amendment, which was not requested until the fourth day of testimony, just before the plaintiff rested.

Dr. Waltke was not a party to the action and is not mentioned in any place in the third cause of action in the sixth amended petition, which is the cause of action in which the specifications of negligence alleged against Smith were made. Specifically, the plaintiff alleged that Smith was negligent in failing to properly monitor the plaintiff, in failing to timely diagnose the complications resulting from the angiography, in failing to utilize ultrasound, and in failing to pursue conservative treatment of the plaintiff.

In the order on the pretrial conference made on February 17, 1989, the trial court noted that the issues had been framed and the plaintiff's specifications of negligence as to each defendant had been narrowed and that the plaintiff's claim against each defendant was based upon specific acts of negligence. The order set out both the "Uncontroverted Facts" and the "Issues of Fact, and No Others, Remaining To Be Litigated upon the Trial." (Emphasis supplied.) This order was effective as a limitation of issues and was approved "as to form and consent [sic]" by all counsel, including the counsel for the plaintiff.

The instruction requested by the plaintiff went further than merely instructing that Waltke was the agent of Smith. It also submitted the issue of negligence by Waltke to the jury, and there was no evidence to support a submission of that issue to the jury. There was no testimony by any of the plaintiff's expert witnesses to the effect that Waltke had deviated from the standard of care.

The trial court refused to give the requested instruction because there was no evidence that Dr. Waltke had violated the applicable standard of care and because the issue of respondeat superior had never been pled. The trial court refused to allow the plaintiff to amend the petition at the...