Morrill v. Tilney

• Decision Date: 05 December 1986
• Docket Number: No. 85-524,85-524
• Citation: 519 A.2d 293,128 N.H. 773
• Parties: Steven D. MORRILL v. Robert W. TILNEY, M.D.
• Court: New Hampshire Supreme Court

Page 293

519 A.2d 293

128 N.H. 773

Steven D. MORRILL v.Robert W. TILNEY, M.D.

No. 85-524.

Supreme Court of New Hampshire.

Dec. 5, 1986.

Cooper, Fauver & Deans P.A., North Conway (Randall F. Cooper, on brief and orally), for plaintiff.

Sulloway Hollis & Soden, Concord (Michael P. Lehman and Stephen E. Woodbury, on brief, and Lehman orally), for defendant.

JOHNSON, Justice.

This is an appeal from a jury verdict for the plaintiff and the denial by the Trial Court(Goode, J.) of the defendant's motions for nonsuit, directed verdict, and judgment notwithstanding the verdict or new trial.The defendant contends that the trial court erred in denying these motions because no reasonable person could have believed the plaintiff's evidence at trial, and because the alleged malpractice was merely a mistake in professional judgment.We reject these contentions, and affirm the rulings of the trial court.

On October 11, 1981, the plaintiff, a self-employed logger, injured the tip of his left middle finger while sawing wood on a radial arm power saw.He immediately sought treatment by the defendant, Dr. Robert Tilney, M.D., at the emergency room of Memorial Hospital in North Conway.Dr. Tilney is a board certified general surgeon.

X-rays revealed that the injury involved the last, or distal interphalangeal joint, on the radial side of the finger.In view of the apparent severity of the wound, the plaintiff, who was anxious to return to work as quickly as possible, requested that Dr. Tilney simply amputate the damaged portion of the finger.Instead, Dr. Tilney, believing that there was a reasonable chance the finger could be saved, persuaded the plaintiff to undergo a more complex procedure in an effort to reconstruct the finger.Dr. Tilney believed that he had an ethical duty to his patient, who was in "a lot of pain," to explain the procedure that could possibly save the finger.The plaintiff agreed to undergo the reconstruction surgical procedures explained by the defendant.

The wound itself measured four by four centimeters.Within the site of the injury, all skin was destroyed, between thirty and fifty percent of the bone was missing, as well as between thirty and fifty percent of the joint surface itself.There remained a functioning artery and a partially functioning nerve to the tip.The entire finger was alive.

Rejecting more conservative alternatives, Dr. Tilney elected to attempt cosmetic reconstruction while preserving mobility of the finger.Using a local anesthetic, Dr. Tilney sewed the severed tendons of the finger back together with a running suture.This was accomplished by drilling a hole through the bone and placing a suture through, pinning it on the top of the finger with an ordinary shirt button.Dr. Tilney then "closed" the wound by using a full-thickness skin graft.The finger was then splinted and wrapped in a sterile dressing.

The plaintiff returned for office visits on October 12, 15, 22, 26, November 9 and 23.On October 22, two weeks after the surgery, the splint was removed.The plaintiff eventually regained function in the bottom two joints of the finger, but never regained function in the repaired joint.

In mid-February, 1982, the plaintiff first noticed that the tip of the finger had begun to deviate toward the thumb.He discussed this development with Dr. Tilney in an office visit on March 8.Believing that the deviation was the result of contraction of the skin graft, Dr. Tilney prescribed skin cream as a remedial measure.The plaintiff returned on May 13 with a greater deviation of the fingertip, and at that time it became clear to Dr. Tilney that his procedure had failed and that amputation was necessary.

The plaintiff brought a malpractice suit in superior court, alleging that Dr. Tilney negligently failed to recognize the significance of the bone injury in his finger, and negligently chose a course of treatment which could not but have resulted in the deformity that in fact occurred.

At trial, each side's expert witness agreed that at the time of the injury, the control of infection was the chief concern.The experts disagreed, however, as to the appropriate medical course of treatment under the circumstances.Based upon the X-rays, emergency room documents and a personal examination of the patient, Dr. Walter Garger, M.D., an orthopedic surgeon, testified for the plaintiff that the bone loss was so great that the procedure employed by the defendant was doomed from the outset, and that the finger should have been amputated, thus saving the plaintiff much pain, lost wages and mental anguish.The defendant's expert, Dr. H. James Forbes, a hand specialist, disagreed.While Dr. Forbes never personally examined the patient, he testified that the procedure employed by the defendant was appropriate under the circumstances, and that his work represented "the finest and best and most appropriate level of care."When asked whether he had "seen or observed or been where a doctor has made a mistake," Dr. Forbes responded that he could not "think of anything that just pops right out as being a mistake."

The defendant moved for a nonsuit at the close of the plaintiff's case.This motion was denied by the trial court.At the close of all the evidence, the defendant moved for a directed verdict.After the denial of this motion, the defendant filed a request for specific jury instructions on the issue of professional judgment.The court did not adopt the defendant's proposed charge specifically, but addressed the question of professional judgment in the context of modern statutory and case law dealing with malpractice.

The case was submitted to the jury.After approximately two and one-half days of deliberation, the jury remained deadlocked at 11-1.The parties then agreed to accept the unanimous verdict of 11 members of the jury, which resulted in a verdict for the plaintiff in the amount of $28,000.Along with a motion to reduce damages, the defendant filed a motion for judgment notwithstanding the verdict or new trial.The trial court denied both motions.The defendant has withdrawn from his appeal the issue of the reduction of damages motion, and appeals only the denial of his motions for nonsuit, directed verdict, and judgment notwithstanding the verdict or new trial.

In ruling on a motion for nonsuit, the question before the trial court is whether the plaintiff has introduced sufficient evidence to make out a prima facie case.R. Wiebusch, 5 New Hampshire Practice, Civil Practice and Procedure§ 1579, at 294(1984).Such evidence must be "sufficient as a matter of law to sustain a verdict in [the plaintiff's] favor,"id. at § 1591, at 302, and is to be construed in the light most favorable to the party seeking relief.Bonin v. Howard, 115 N.H. 86, 88, 333 A.2d 450, 451(1975).In this case, the plaintiff's evidence included Dr. Garger's expert medical opinion that the deviation of the finger tip was the inevitable consequence of the defendant's failure to surmise the degree of bone loss, and his decision to attempt cosmetic reconstruction while preserving mobility.Dr. Garger had himself examined the patient.He is a board certified orthopedic surgeon, and there was no question as to his qualifications as an expert.The plaintiff himself testified extensively as to the amount of income he lost, allegedly as a result of the defendant's treatment of his injury.Under these circumstances, "[v]iewing the evidence in a light most favorable to the plaintiff, as a court is required to do on a motion for nonsuit,"id., we find no error in the denial of the motion for nonsuit.

It is proper to grant a motion for directed verdict only if, considering all of the evidence in a way most favorable to the opponent, no reasonable person could conclude that the moving party's opponent was entitled to any relief.Wiebusch, supra§ 1585, at 297.The test is whether "all of the evidence ... so overwhelmingly favors the moving party that no contrary verdict based upon that evidence could ever stand."Stock v. Byers, 120 N.H. 844, 848, 424 A.2d 1122, 1125(1980)(quotingAmabello v. Colonial Motors, 117 N.H. 556, 561, 374 A.2d 1182, 1185(1977)).We think that the evidence in this case, when viewed in a light most favorable to the plaintiff, does not overwhelmingly favor the defendant, and that a reasonable juror "might ... conclude that the allegation of negligence is sustained."Brann v. Exeter Clinic, 127 N.H. 155, 158, 498 A.2d 334, 336(1985)(quotingPaine v. Railway, 58 N.H. 611, 614(1879)).The trial court was faced with a plaintiff who had supported his case with expert testimony.This testimony was offset by the defendant's own testimony, and of his own expert, Dr. Forbes.The jury was free to accept or reject this testimony, in whole or in part.Gowen v. Brothers, 121 N.H. 377, 380, 430 A.2d 159, 161(1981).Under such circumstances, "[t]he evidence ... could support a jury verdict in [the plaintiff's] favor," and the issue must go to the jury.Welch v. Fitzgerald-Hicks Dodge Inc., 121 N.H. 358, 361, 430 A.2d 144, 146(1981).

Further, it is well established that a motion for directed verdict must be denied if the evidence is conflicting on a material issue.Merchants Mutual Casualty Co. v. Smith, 91 N.H. 204, 206, 17 A.2d 88, 90(1940).In this case, the plaintiff's expert testified that due to the amount of bone loss in connection with the plaintiff's injury, the defendant should have elected to either amputate the finger or fuse the joint.The defendant's expert, however, testified that Dr. Tilney's course of treatment was correct, and represented "the finest and best and most appropriate level of care."Under these circumstances, ...