Kelly v. Northwest Hospital, No. 54944-8-I (WA 5/1/2006)
| Decision Date | 01 May 2006 |
| Docket Number | No. 54944-8-I.,54944-8-I. |
| Parties | KELLY and STAN PARK, Respondents, v. NORTHWEST HOSPITAL, GABRIELLE COULON, M.D., Appellants, PAMELA H. McDONALD, M.D. and SEATTLE FAMILY MEDICINE, and ROBERT L. HOWISEY, M.D., Defendants. |
| Court | Washington Supreme Court |
Appeal from Superior Court of King County. Docket No: 02-2-08218-1. Judgment or order under review. Date filed: 08/20/2004. Judge signing: Hon. Sharon Armstrong.
Counsel for Appellant(s), Katharine Witter Brindley, Helsell Fetterman LLP, 1001 4th Ave Ste 4200, Seattle, WA 98154-1154.
Kristen Dorrity, Helsell Fetterman LLP, 1001 4th Ave Ste 4200, Seattle, WA 98154-1154.
William Robert Hickman, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Pamela A. Okano, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Sherry Hemming Rogers, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Counsel for Respondent(s), Jenny Anne Durkan, Attorney at Law, 411 University St Ste 1200, Seattle, WA 98101-2519.
After the jury returned a defense verdict in a medical malpractice trial, the plaintiffs moved for a new trial. The trial court granted a new trial in this case on three grounds: (1) an irregularity in the proceedings deprived the plaintiff of a fair trial under CR 59(a)(1), (2) an error of law occurred at trial justifying a new trial under CR 59(a)(8) and (3) substantial justice was not done under CR 59(a)(9). We reverse.
Kelly Park spent some time standing on a ladder painting in March 1999. Shortly thereafter, her feet started to hurt. Park went to see her family doctor, Pamela McDonald, in March and again on May 3. At the second visit, McDonald set up an appointment for Park with a rheumatologist for May 11. Before that appointment, however, Park experienced more pain and could not get her feet warm.
On May 9 she went to the emergency room of Northwest Hospital where she was examined by Dr. Gabrielle Coulon. Park told Coulon her history. Coulon examined Park, and called McDonald to discuss Park's history and symptoms.1 Coulon ordered a Doppler test, which is an ultrasound vascular study that looks at circulation. The test provides the ankle brachial index (ABI), a comparison of the blood pressure in the arm to the blood pressure in the ankle on the same side. Park's ABI was 1.06 in the right leg and 0.25 in the left leg. An ABI of 0.25 is severely abnormal. It indicated severe restricted blood flow to Park's left leg.
Coulon called Dr. Howisey, the on-call vascular surgeon. Coulon testified that she told Howisey Park's history, symptoms and signs in the ER, the ABI numbers from the Doppler study, and the finding of arterial insufficiency. She asked Howisey whether anything more should be done, but Howisey did not feel any additional tests were needed.
Howisey testified that Coulon answered his questions and told him that there was an abnormal Doppler reading and that some of Park's arteries appeared to have vascular insufficiency. Coulon described the Doppler technician's verbal impression of the study to him and asked him if he wanted further testing done while Park was in the ER. Combined with Park's history and symptoms, including that Coulon could feel Park's pedal pulses, Howisey did not think further tests would be beneficial or that Park should be immediately admitted. He concluded that Park should keep her scheduled rheumatology appointment. Howisey testified that Coulon did not tell him that the Doppler test showed severe arterial insufficiency, and he did not recall being told Park's ABI numbers. If he had that information, he would have instructed Coulon to admit Park and he would have come in to begin treatment immediately.2
After consulting with Howisey, Coulon called McDonald to discuss the Doppler results and Howisey's comments. McDonald agreed with the plan to discharge Park.3 Park was discharged with instructions to keep her rheumatology appointment on May 11. That day, Park went to see the rheumatologist. Park reported increasing pain and the rheumatologist noted that her left foot was cold. The rheumatologist admitted Park to the hospital for an arteriogram, which revealed a clot in the abdominal aorta that was sending smaller clots into the arteries in Park's legs. Howisey assumed primary care and initiated therapy. After seven days of treatment, Park's left leg was amputated below the knee. After 16 days of treatment, Park's right leg was amputated below the knee.
Park4 brought an action against Coulon, Howisey, McDonald, Seattle Family Medicine (McDonald's employer) and Northwest Hospital. Park settled with Howisey, McDonald, and Seattle Family Medicine four months before trial. At that point, Coulon and Northwest Hospital moved to amend their answers and assert the affirmative defense of nonparty negligence, naming Howisey and McDonald as the nonparties. The trial court granted the defendants'5 motion on March 23. Park had not yet deposed any defense experts. Trial started on June 21. The jury returned a unanimous defense verdict on July 14. Park moved for a new trial on July 22. The trial court granted the motion and the defendants appeal.
When a new trial is granted on the ground of an error of law, no element of discretion is involved and this court's review is de novo. Detrick v. Garretson Packing Co., 73 Wn.2d 804, 812-13, 440 P.2d 834 (1968); Jazbec v. Dobbs, 55 Wn.2d 373, 347 P.2d 1054 (1960). Otherwise, a trial judge generally has broad discretion in granting motions for a new trial and its decision will not be disturbed on appeal absent an abuse of discretion. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). The trial court abuses its discretion if its decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Because the denial of a new trial concludes the parties' rights, a "much stronger showing of abuse of discretion will be required to set aside an order granting a new trial than an order denying one." Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997).
In all cases where a new trial is granted based upon the record, the trial court must set forth in its order "definite reasons of law and facts" for granting the new trial. CR 59(f). If the order is based on matters outside the record, the trial court must state the facts and circumstances on which it relied. CR 59(f).
The grounds for a new trial are set forth in CR 59(a). The trial court granted a new trial in this case on three grounds: (1) an irregularity in the proceedings deprived the plaintiff of a fair trial under CR 59(a)(1), (2) an error of law occurred at trial justifying a new trial under CR 59(a)(8) and (3) substantial justice was not done under CR 59(a)(9). For each ground, the first inquiry is to determine the standard of review by establishing whether the ground involves an exercise of discretion or is predicated on a question of law. See Detrick, 73 Wn.2d at 813.
A new trial is available under CR 59(a)(1) if an "{i}rregularity in the proceedings of the court . . . prevented {the moving party} from having a fair trial." A new trial granted on this ground is reviewed for abuse of discretion. See Storey v. Storey, 21 Wn. App. 370, 375, 377, 585 P.2d 183 (1978). When "the claimed grounds for a new trial involve the assessment of occurrences during the trial and their potential effect on the jury, we will accord great deference to the considered judgment of the trial court in ruling on such a motion." Levea v. G.A. Gray Corp., 17 Wn. App. 214, 226, 562 P.2d 1276 (1977).
On the third day of trial, the trial court pointed out to the parties with the jury absent that the case caption on the trial schedule it gave the jury included the words "et al." In its order granting a new trial, the trial court also noted that the juror seating chart posted in the jury room had contained the same error. The trial court replaced both documents with copies containing the correct caption, and notified the parties two days later that it had done so. Park did not raise any objection at trial to the erroneously included words, and did not raise the issue in her new trial motion until a footnote in her reply brief.6 In its order granting a new trial, the trial court stated that "this administrative error gave the jurors notice that other defendants had previously been parties to the lawsuit, and they were free to speculate that other defendants had settled with plaintiffs before trial." The trial court also noted that the jurors submitted several questions during deliberations seeking information about Howisey's relation to the lawsuit and the consequences of finding Coulon not negligent but finding Howisey negligent. The trial court noted that its error made it "evident that other parties had once been in the case," and that the "jury could have assumed that Dr. Howisey had already paid the plaintiff substantial damages." The trial court further noted that while "the court does not meet with jurors after a verdict is taken, court staff overheard jurors asking plaintiffs' counsel how much Dr. Howisey had already paid the plaintiffs." The trial court held that its error "contributed to this problem" and justified a new trial under CR 59(a)(1).
A complaining party may be precluded by waiver from seeking a new trial on the ground of irregularity:
Unless inadequate to remedy the irregularity or misconduct complained of, the aggrieved party must request appropriate court action to obviate the prejudice before the case is submitted to the jury. He is not permitted to speculate upon the verdict by awaiting the result of...
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