Johnston v. Lerwick

• Decision Date: 23 December 1986
• Docket Number: No. 50654,50654
• Parties: Lena M. JOHNSTON and Robert J. Johnston, Plaintiffs/Respondents, v. Everett R. LERWICK, M.D., Defendant/Appellant, and Missouri Baptist Hospital, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 868

738 S.W.2d 868

Lena M. JOHNSTON and Robert J. Johnston, Plaintiffs/Respondents, v. Everett R. LERWICK, M.D., Defendant/Appellant and Missouri Baptist Hospital, Defendant/Respondent.

No. 50654.

Missouri Court of Appeals,

Eastern District,

Division One.

Dec. 23, 1986.

Motion for Rehearing and/or Transfer Denied Jan. 27, 1987.

Case Transferred to Supreme Court March 17, 1987.

Case Retransferred to Court of Appeals Nov. 10, 1987.

Original Opinion Reinstated Nov. 18, 1987.

Morris E. Stokes, St. Charles, for Lerwick.

Gary P. Paul, Brinker, Doyen & Kovacs, Clayton, for Missouri Baptist Hosp. and Johnston.

CRIST, Judge.

Appellant (doctor) appeals from a judgment apportioning fault, 80 percent to doctor and 20 percent to respondent (hospital), in a jury-tried medical malpractice case. We affirm.

Plaintiffs sued both doctor and hospital alleging joint responsibility for negligently leaving a metal clamp in plaintiff-wife's body after surgery. Both doctor and hospital filed answers denying any liability to plaintiffs; neither doctor nor hospital filed any pleadings or claims for apportionment of fault between themselves. The jury was given instructions and verdict forms, M.A.I. 4.12 modified, requiring them to apportion fault between doctor and hospital in the event both were found to be negligent.

Doctor asserts instructing the jury to apportion damages is error where none of the parties requested apportionment in their pleadings because (1) apportionment was not an issue absent a request for such, and (2) he was denied an opportunity to introduce evidence relevant to apportionment.

We need not decide the merits of doctor's assertions because he failed to preserve his objections. The record indicates that after an off the record instruction conference and prior to the reading of the instructions doctor made "an objection to each and every instruction given and verdict form given." Plaintiff made the same general objection, and so did hospital. Hospital in addition to its general objection made reference to specific "suggestions, changes and improvements to the instructions" it had made at the instruction conference. Doctor made no such record, and there are no specific objections in the record before us.

On appeal, doctor moved to file a supplemental record consisting of the transcript of doctor's request to the trial court for an affidavit concerning the instruction conference. That motion was remanded to the trial court and the trial court was "directed to enter an order pursuant to Rule 81.14(e) settling whether objections were made" to the apportionment instructions and verdict forms. The trial court's order found simply "that objections were made."

Doctor did not specifically object, on the record, to the apportionment instructions before they were given; nor did he specifically object to the verdict forms, either before they were given to the jury or when the verdict was returned.

Objections at trial to the instructions are not required to preserve the issue for appeal; however, the lack of a specific objection is a factor in determining if there is prejudice and thus reversible error. Cornell v. Texaco, Inc., 712 S.W.2d 680, 682 (Mo. banc 1986); and Hudson v. Carr, 668 S.W.2d 68, 71-2 (Mo. banc 1984). There is less leniency in objecting to verdict forms; specific objections must be made at the time the verdict forms are given to the jury. Turley Martin Co. v. American Can Co., 661 S.W.2d 79, 82 (Mo.App.1983).

Doctor asserts he did make specific objections at the instruction conference. But where his alleged specific objections were not on the record; he had opportunity to object on the record either when he made his general objection before the instructions were given, or when the verdict was returned; he made no further objections to the verdict form; he filed an answer denying each and every allegation of negligence and unskillfulness; and he was found 80 percent at fault doctor was not prejudiced by the instructions. We cannot condone trial tactics whereby the trial court is not specifically alerted to possible errors in the instructions or verdict forms and is not given an opportunity to correct an error if one exists. Ideker, Inc. v. Missouri State Highway Com'n, 654 S.W.2d 617, 623-24 (Mo.App.1983). Doctor made a decision to accept the apportionment instructions and it is too late to complain. See Fowler v. Park Corp., 673 S.W.2d 749, 756 (Mo. banc 1984).

Judgment affirmed.

KELLY, J., concurs.

SATZ, P.J., dissents.

SATZ, Presiding Judge, dissenting.

I respectfully dissent.

The record before us consists of a two page transcript and legal file. ¹ The record shows respondent hospital failed to file a cross-claim against the appellant doctor. Nevertheless, the trial court instructed the jury to apportion fault between the hospital and the doctor. The doctor made a general objection to the instructions, objecting "to each and every instruction given."

This record creates the two issues before us: (1) did the hospital's failure to plead a cross-claim against the doctor prohibit the trial court from instructing the jury to apportion fault between the hospital and the doctor, and (2) if so, is the doctor now precluded from questioning the giving of the apportionment instruction because he failed to make a specific objection prior to or contemporaneous with the instruction being given.

The majority addressed the latter issue. I will address it first. The resolution of this issue depends upon the present viability of Rule 70.03, and the viability of this Rule, in turn, depends upon how the Rule has been affected by Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984), Fowler v. Park, 673 S.W.2d 749 (Mo. banc 1984) and their progeny. The majority, I believe, finds the effect was fatal. I believe the effect was less serious. Rule 70.03 is not quite dead. See Cornell v. Texaco, 712 S.W.2d 680 (Mo. banc 1986).

Rule 70.03 provides:

Counsel need not object to any instructions to be given at the request of any other party or by the court on its own motion or to the refusal of any instructions requested by such party. ²

This language seems to be clear and straightforward. Under it, the doctor had no duty to object to any instruction prior to or contemporaneous with the instruction being given to the jury. The obverse would also seem to be true. The doctor had the privilege to remain silent. Thus, it would seem the doctor could suffer no adverse consequences from exercising this privilege. Not quite so.

In Hudson v. Carr, 668 S.W.2d 68, 71 (Mo. banc 1984), the Court acknowledged that "[c]ontemporaneous objections to instructions are not required to preserve claims of legal error (Rule 70.03)", but the Court warned:

[the] failure to raise the issue during trial or to request a modification may be considered in determining whether a variation from MAI is prejudicial. This is especially so when the court gives a text instruction in express terms and the deviation consists in a failure to modify it. If a defect is not readily apparent to alert counsel preparing to argue the case, there is very little likelihood that the jury will be confused or misled." Id. at 71-72.

Then, in Fowler v. Park, supra, the Supreme Court again addressed Rule 70.03 and acknowledged its viability. As interpreted by the Eastern District, Fowler

set forth a series of considerations for the courts to utilize in determining whether a variation from the mandates of MAI is prejudicial. Included as one basis for a finding of non-prejudice is 'sandbagging' in which counsel remains silent at the instruction conference in the hope that his opponent will request an erroneous instruction. Points v. Dzur, 713 S.W.2d 634, 635 (Mo.App.1986).

As to the effect of Hudson v. Carr and Fowler v. Park, we, in the Eastern District, said these cases effectively reversed

the presumption of prejudice from MAI deviations where no objection is raised at trial. This is based upon the reasoning in those cases [Hudson and Fowler ] that if counsel failed to detect the error its prejudicial impact must be minimal, and if counsel noted the error and remained silent he has waived any objection he may have to a correctly instructed jury. Points v. Dzur, supra at 635.

We even questioned the continuing viability of Rule 70.03 in light of Hudson and Fowler. Koenig v. Babka, 682 S.W.2d 96, 99-100 (Mo.App.1984). Our colleagues in the other District Appellate Courts and members of the bar have also attempted to find the true meaning and effect of Hudson and Fowler. See, e.g., McCarter and Behr, MAI Error After Fowler v. Park Corp; Prejudicial Or Not?, 41 Mo.Bar Jnl. 308 (July/Aug.1985). Although I am not persuaded by the reasoning in Hudson or Fowler, I am constrained to follow and apply it. Thus, I add my own interpretation of Hudson and Fowler to the growing list of interpretations.

Hudson v. Carr simply warned the failure of counsel to specifically object to an instruction may be used to determine whether a variation from the MAI was prejudicial. Thus, the total protection previously perceived to have been afforded by Rule 70.03 was no longer total. The exact dimensions and reach of this warning, however, were not defined.

Fowler v. Park, as I understand it, did not increase the dimensions or extend the reach of Hudson v. Carr. In Fowler, the trial court "improperly" defined the standard of care in terms of the "highest degree of care" rather than "ordinary care." On appeal, the majority of the Supreme Court characterized defense counsel's failure to object to this impropriety as "a patent illustration of 'sandbagging', in which counsel remains silent at the instruction conference in the hope that his opponent will request an erroneous instruction." Id. at 756. But the majority specifically acknowledged the continuing viability of Rule 70.03 by stating:

"In most instances the law requires counsel to speak out in time to permit correction of trial...