Maxwell v. Powers

• Decision Date: 01 March 1994
• Docket Number: No. D015368,D015368
• Court: California Court of Appeals Court of Appeals
• Parties: David MAXWELL, Plaintiff and Appellant, v. Louis H. POWERS, Defendant and Respondent.

Page 62

28 Cal.Rptr.2d 62

22 Cal.App.4th 1596

David MAXWELL, Plaintiff and Appellant, v. Louis H. POWERS, Defendant and Respondent.

No. D015368.

Court of Appeal, Fourth District, Division 1, California.

March 1, 1994.

Review Denied March 29, 1994.

[22 Cal.App.4th 1599] Janice R. Mazur, San Diego, for plaintiff and appellant.

Ault, Deuprey, Jones & Gorman and Alan H. Schonfeld, San Diego, for defendant and respondent.

TODD, Associate Justice.

David Maxwell appeals a judgment of $44,100 in his favor and against Louis H. Powers, M.D., after a jury determined Powers, a trauma surgeon, was negligent in the diagnosis, care and treatment of Maxwell, who had been in a motorcycle accident and eventually lost a kidney. Maxwell contends the trial court erred by failing to send the jury back for further deliberations with additional instructions after receiving an erroneous verdict form. Alternatively, Maxwell contends the trial court erred in refusing to consider juror affidavits for purposes of correcting the verdict or for granting a new trial. Maxwell also argues the trial court's

refusal to give BAJI No. 14.66 was reversible error.

FACTS

On November 11, 1987, Maxwell was involved in a motorcycle accident and suffered a number of traumatic injuries. He and the other person on the motorcycle were transported to the trauma unit at Scripps Hospital. The other person was dead on arrival. Maxwell was assessed and treated for injuries in Scripps's trauma unit by Powers, who has been on the hospital's staff since 1963.

Maxwell had possible brain injuries as evidenced by garbled speech and lack of orientation, four fractured ribs, internal hemorrhage in the abdominal cavity, an open-type injury and ligament damage to his right knee, a cracked and bleeding pelvis, a broken arm and a cracked incisor tooth.

Following a CAT scan, Powers performed emergency surgery on Maxwell in his peritoneal cavity to stop bleeding there. Powers suspected possible kidney injury and ordered an intravenous pyelogram (IVP) during the surgery. Although the IVP was not technically adequate, it confirmed that Maxwell had two kidneys and showed no gross extravasation of dye on the left kidney. Powers chose not to repeat the IVP because he was confident the kidney would heal itself since he did not detect any trauma to the kidney and he was in the midst of operating on the aorta.

A radiologist's report interpreting the IVP indicated the IVP showed serious injury to the left kidney. Powers did not review the report until Maxwell had been transferred to another hospital.

Maxwell was transferred to Kaiser Hospital on November 14, 1987. Powers recommended to a Kaiser physician that Kaiser conduct an additional IVP after the transfer to assure the kidney was all right. The recommendation was not followed. Maxwell was discharged from Kaiser Hospital on December 1, 1987. One week later, he was readmitted to Kaiser Hospital with rigidity of the left abdomen, vomiting and inability to eat. Surgeons at Kaiser removed Maxwell's left kidney.

Marshall Orloff, M.D., plaintiff's expert, testified it was below the standard of care for Powers to fail to review the radiology report on the kidney. Additionally, a repeat IVP could have been performed without danger to Maxwell. Orloff also testified that despite the technical flaws in the IVP, Powers should have realized from the IVP there was kidney damage. Orloff opined there was a better than 90 percent probability, to a reasonable medical certainty, that the kidney could have been saved had kidney surgery been performed on the day Maxwell was admitted to Scripps Hospital. Orloff opined it is medically probable the kidney could have been saved had surgery been performed on the day after Maxwell's admission to Scripps Hospital. It was also probable the kidney could have been saved had surgery been performed the following day, but less likely. With each passing day, the likelihood of saving the kidney lessened, Orloff testified.

Vital Haynes, M.D., the defense expert, testified Powers met the standard of care required of a trauma surgeon in his treatment of Maxwell.

On January 23, 1989, Maxwell filed a complaint for personal injuries against Powers, another doctor, and Kaiser Foundation Health Plan, Inc., alleging medical malpractice against each defendant. ¹ On February 14, 1989, Powers filed a general denial, in which he asserted several affirmative defenses, including comparative negligence by Maxwell and assumption of risk. On March 29, 1989, Maxwell and Kaiser filed a stipulation to stay the superior court action pending arbitration pursuant to Code of Civil Procedure section 1280 et seq.

Maxwell's lawsuit against Powers proceeded to trial on April 24, 1991. The jury began deliberating on May 1. On May 3, the jury sent a note to the court stating it was deadlocked seven to five. The court instructed the jury to resume deliberations. On May 6, the jury sent another note to the court stating it was deadlocked at six to six. The jury was polled and reinstructed to continue deliberations.

On May 7, the jury returned a verdict in Maxwell's favor by a vote of nine to three "It is the intention of this jury to reflect a total compensation package of $692,222 with Dr. Powers apportioned 9% of the total responsibility in total payment resulting in a payment to Mr. Maxwell of $62,300.

finding Powers was negligent in the diagnosis, care and treatment of Maxwell and such negligence was a legal cause of Maxwell's injury. The verdict also specified Maxwell sustained $10,000 in damages for past pain and suffering and $10,000 in damages for future pain and suffering. The verdict specified Maxwell's future medical care would be $777,474 and found the present cash value of the future medical care was $42,300. The verdict also attributed nine percent of the fault for Maxwell's injury to Powers and ninety-one percent to others. Under the foreman's signature, at the end of the verdict form, the words "See Jury Intention on Separate Paper" were interlineated in longhand. Accompanying the verdict form was a jury request form on which the foreman had written:

"We have added answer 3, 4 and 5b to obtain our total."

The jury was excused following the reading of the verdict, and counsel and the court discussed the verdict and the jury's note. No decision was made at that time and the court recessed for the evening. The following morning, Maxwell's counsel requested the jury be sent back for further deliberations with an instruction that its note could not be considered, the figures on the verdict form should not be reduced by the amount of fault allocated to other parties and the court would make any appropriate apportionment. The court refused to return the jury for further deliberations. The court ruled the verdict form was proper, the separate note would not be considered and it accepted the verdict form as written. The jury was discharged.

On June 13, 1991, Maxwell moved to correct the verdict or for a new trial on damages based on the misconduct of the jury in reducing the total damage award by ninety-one percent. Maxwell filed several juror affidavits as part of his motion. The trial court ruled the affidavits inadmissible and denied the motion.

On July 10, 1991, the trial court entered judgment in favor of Maxwell and against Powers in the amount of $44,100.

DISCUSSION

I

To the extent that Maxwell argues the trial court should have sent the jury back for further deliberations with additional instructions after receiving the verdict form and attached note, we agree. We, however, reject Maxwell's alternative arguments that the trial court should have corrected the erroneous verdict form or that this court should order correction of the verdict without remand for a new trial in large part because we find the post-trial juror affidavits were inadmissible. We shall take up these arguments seriatim.

A.

Here, the trial court chose to ignore the jury's note attached to the verdict form. For the reasons that follow, we find that was error.

The note, which was incorporated by reference on the verdict form, disclosed the jury, in contravention of its duty, apportioned the damages awarded against Powers to reflect what it found was his relative fault. While as trier of fact, the jury was instructed to determine the relative fault of Powers, it was not instructed or authorized to perform any apportionment of the damages. "A verdict which goes beyond the issues of the case as stated in the instructions on the law given by the court to the jury, is not in conformity with the instructions and is therefore 'insufficient' " within the meaning of section 619 of the Code of Civil Procedure. (Crowe v. Sacks (1955) 44 Cal.2d 590, 596, 283 P.2d 689.) Section 619 of the Code of Civil Procedure states: "When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out."

In Phipps v. Superior Court (1939) 32 Cal.App.2d 371, 374, 89 P.2d 698, the Court of Appeal stated:

"The court retains control of the jury until it is discharged and has the authority to return the jury to the jury room for further deliberation in an effort to obtain a verdict conforming to statutory provisions. When the court's attention is called to an improper verdict, it is the court's duty to further instruct the jury upon the subject of the legal limitation of the verdict under consideration [citation]...."

In view of the jury note, it was obvious that the jury had misconstrued and improperly carried out its mission. The trial court implicitly stated it would not consider the jury note because to do so would be an impermissible invasion of the province of the jury. Such treatment would have been proper had the jury note been an affidavit by a juror presented post trial to explain the jury's mental processes in an effort to...