Loeffel v. Dash

• Citation: 468 P.3d 676
• Decision Date: 27 July 2020
• Docket Number: S-19-0244
• Parties: Elaine Joyce LOEFFEL, Appellant (Plaintiff), v. Eric M. DASH, M.D., personally, individually and vicariously for any person or entities for whom he may be legally responsible; and Board of Trustees of the Memorial Hospital of Carbon County, a body corporate and their employees, agents, and/or ostensible agents, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

468 P.3d 676

Elaine Joyce LOEFFEL, Appellant (Plaintiff),

v.Eric M. DASH, M.D., personally, individually and vicariously for any person or entities for whom he may be legally responsible; and Board of Trustees of the Memorial Hospital of Carbon County, a body corporate and their employees, agents, and/or ostensible agents, Appellees (Defendants).

S-19-0244

Supreme Court of Wyoming.

July 27, 2020

Representing Appellant: Earl Landers Vickery of Vickery & Shepherd, LLP, Houston, Texas; Frederick J. Harrison of Frederick J. Harrison, P.C., Cheyenne, Wyoming

Representing Appellee Memorial Hospital of Carbon County: Scott E. Ortiz and David E. Shields of Williams, Porter, Day & Neville, P.C., Casper, Wyoming

Representing Appellee Eric M. Dash, M.D.: No appearance

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] Elaine Loeffel filed a complaint alleging negligence against Eric M. Dash, M.D. and negligent credentialing and vicarious liability against the Board of Trustees of the Memorial Hospital of Carbon County ("the Hospital"). Dr. Dash failed to answer or otherwise defend, and the district court entered a default judgment against him. A two-phase jury trial was then scheduled on the negligent credentialing claim against the Hospital. The first phase tried the question of Dr. Dash's negligence, and the jury returned a verdict finding no negligence. The district court found that the negligence of Dr. Dash was a prerequisite to liability against the Hospital for negligent credentialing and entered judgment in its favor. On appeal, Ms. Loeffel claims that the default judgment against Dr. Dash estopped the Hospital from contesting his negligence, and that the credentialing claim should not have been bifurcated. We affirm.

ISSUES

[¶2] Ms. Loeffel presents two issues on appeal, which we restate as:

1. Did the district court err when it found the default judgment against Dr. Dash was not binding on Memorial Hospital of Carbon County on the basis of collateral estoppel or issue preclusion?

2. Did the district court abuse its discretion when it granted Memorial Hospital of Carbon County's request to bifurcate the issue of Dr. Dash's negligence from the negligent credentialing claim against Memorial Hospital of Carbon County?

FACTS

[¶3] In the fall of 2013, Elaine Loeffel saw Kenneth Schulze, M.D., an orthopedic surgeon at the Hospital, regarding complaints with the big toe on her right foot. Per Dr. Schulze's order, radiographs of her right foot/toe were taken on October 23, 2013 and reviewed by radiologist David Hansen, M.D. Based on the x-rays, Dr. Schulze advised Ms. Loeffel that correction would likely involve a first metatarsal osteotomy and that she would have to be non-weight bearing for a period of time. She responded that she would not be able to stay off her foot, and Dr. Schulze referred her to Eric M. Dash, a podiatrist, for possible conservative care.¹

[¶4] During Ms. Loeffel's initial visit with Dr. Dash, he recommended an Austin-Aiken bunionectomy surgery and used a diagram to demonstrate how the procedure would help her. She agreed to the outpatient surgery, and on December 10, 2013, she reported to the Hospital for the bunionectomy. Dr. Dash began the procedure at approximately noon, and Ms. Loeffel was discharged that same afternoon.

[¶5] Approximately one week after the surgery, Ms. Loeffel had a post-operative appointment with Dr. Dash. Ms. Loeffel was scheduled to have two follow-up appointments with him, but Dr. Dash failed to attend the second scheduled appointment. Ms. Loeffel did not receive any further care from Dr. Dash.

[¶6] Following the surgery, Ms. Loeffel complained of even greater pain than before the surgery. She further complained that her right toe was now "in a fixed cock-up deformity with the great toe at 20-30º" extension. On February 9, 2016, she filed suit against Dr. Dash and the Hospital. She alleged that Dr. Dash was negligent in selecting the surgery to be performed and in performing that surgery. She also alleged that the Hospital was vicariously liable for Dr. Dash's negligence, and that it had negligently credentialed Dr. Dash to perform the surgery.

[¶7] On March 15, 2016, the Hospital answered the Complaint, setting forth affirmative defenses and demanding a jury trial. On April 1, 2016, Dr. Dash was personally served with the Complaint at his home in Las Vegas, Nevada, but seven months after service, he had not answered, and Ms. Loeffel filed a Motion for Entry of Default Against Defendant Dash for Failure to Answer Complaint and for Evidentiary Hearing to Determine Damages . On December 7, 2016, the district court granted Ms. Loeffel's motion and entered default against Dr. Dash. On April 5, 2017, Ms. Loeffel requested that the clerk of court also enter a default against Dr. Dash pursuant to W.R.C.P. 55(a), and the clerk did so.² On that same date, the district court held a default judgment hearing on damages pursuant to W.R.C.P. 55(b)(2).

[¶8] On April 25, 2017, the court entered a Default Judgment Against Eric M. Dash, M.D. , finding that "Ms. Loeffel's claims and allegations against Dr. Dash are deemed to be admitted, and Dr. Dash is liable for the injuries she has suffered from the surgery."

[¶9] At the evidentiary hearing, the Hospital appeared by telephone and asserted that its alleged negligence and vicarious liability were not at issue in the proceeding, and the district court agreed. Based on the testimony of Dr. Richard Southwell, an orthopedic surgeon and podiatrist, and that of Ms. Loeffel, the district court awarded damages for: (1) past and future medical expenses; (2) past and future pain, suffering and mental anguish; and (3) past and future loss of enjoyment of life. The court awarded Ms. Loeffel damages against Dr. Dash in the amount of $1,185,800.00.

[¶10] For more than a year, the remaining parties moved towards trial, completing discovery, filing dispositive motions, and designating expert witnesses. The claims against the Hospital were scheduled for a jury trial to begin on March 4, 2019. On July 31, 2018, the Hospital filed a motion for summary judgment on both the vicarious liability and negligent credentialing claims. The district court dismissed the vicarious liability claim based on Ms. Loeffel's concession that the claim was precluded by the Wyoming Governmental Claims Act.³ The court denied summary judgment on the negligent credentialing claim, finding that issues of fact remained for jury trial.

[¶11] The Hospital also filed Defendant Memorial Hospital of Carbon County's Motion for Judgment on the Pleadings and/or Motion to Dismiss , by which it sought to dismiss the claims against it on the basis that the default judgment against Dr. Dash allotted one hundred percent of the fault to Dr. Dash. The court observed that the Hospital "argue[d] that the default judgment now applies to [the Hospital], while in earlier pleadings [the Hospital] sought to prevent the use of the default judgment to determine negligence or damages," and it denied the motion.

Since, the default judgment against Dr. Dash is not binding on [the Hospital] with regards to negligence or damages, and the claim for negligent credentialing is wholly independent, the Court finds that [the Hospital's] potential negligence or comparative fault [sic] has yet to be determined. Therefore, there are still issues outstanding for which relief can be granted.

[¶12] On August 21, 2018, Ms. Loeffel filed Plaintiff's Motion in Limine RE: Collateral/Res Judicata Attacks on This Court's Judgment . In her motion, she argued that Dr. Dash's malpractice was previously determined in the default judgment, and that it was not subject to collateral attack by the Hospital. The district court denied the motion and held:

As discussed above in ... the motion to dismiss, [the Hospital] is entitled to the defense that Dr. Dash was not negligent in performing surgery on Plaintiff. [The Hospital] is not precluded from asserting Dr. Dash was not negligent and as such [the Hospital] was not negligent in credentialing Dr. Dash simply by the entry of default judgment against Dr. Dash.

[¶13] Before trial, the Hospital filed Defendant Memorial Hospital of Carbon County's Rule 42(b) Motion for Separate Trials pursuant to W.R.C.P. 42(b), requesting that the district court bifurcate the trial into two phases. The Hospital argued that the negligent credentialing claim was predicated on a determination of Dr. Dash's negligence. Accordingly, it requested a two-phase trial in which the jury would first determine whether Dr. Dash performed the procedure on Ms. Loeffel negligently, followed by a trial to determine whether the Hospital negligently credentialed Dr. Dash. The district court noted that at oral argument Ms. Loeffel did not object so long as the same jury heard both phases, and it granted the motion. The court ordered the trial to proceed, with the first phase to determine whether Dr. Dash was negligent in performing the surgery, and the second to determine whether the Hospital acted negligently in credentialing Dr. Dash and the amount of its fault.

[¶14] On February 28, 2019, Ms. Loeffel filed Plaintiff's Motion to Reconsider Bifurcation . She argued that bifurcation "would work a substantial hardship" on her and would not result in judicial economy. The district court orally denied the motion on March 4, 2019.

[¶15] From March 4 to 6, 2019, a jury trial was held to determine whether Dr. Dash was negligent. The jury returned a verdict finding no negligence and therefore awarded no damages. Accordingly, the district court entered a Judgment on Jury Verdict in favor of the Hospital because a finding of negligence by Dr. Dash was a prerequisite to the Hospital's liability for negligent credentialing. The second phase of the trial was thus not conducted.

[¶16] During the jury trial, Ms. Loeffel filed two motions pursuant to W.R.C.P. 50. First, on March 6, 2019, she requested that the district...