Nelson v. Peterson
| Decision Date | 26 November 1975 |
| Docket Number | No. 13803,13803 |
| Citation | 542 P.2d 1075 |
| Parties | Betty J. NELSON, Plaintiff and Appellant, . Perry A. PETERSON, M.D., and Valley West Hospital Development Corporation, A Utah corporation, dba Valley West Hospital, Defendants and Respondents. |
| Court | Utah Supreme Court |
W. Eugene Hansen and G. Richard Hill of Hansen & Orton, Raymond A. Hintze of Walker, Hintze & Anderson, Inc., Salt Lake City, for plaintiff and appellant.
John H. Snow of Worsley, Snow & Christensen, Salt Lake City, for Perry Peterson.
Ray R. Christensen of Christensen, Gardiner, Jensen & Evans, Salt Lake City, for Valley West Hospital.
This is an appeal from an adverse judgment based in an action for the wrongful death of a full-term fetus together with damages for the pain and suffering allegedly caused by the negligent care of plaintiff in connection with the delivery of her stillborn baby. She assigns three grounds of error, viz.:
1. The verdict was against the manifest weight of the evidence.
2. The court erred in allowing testimony concerning the child's father and the plaintiff's status as a welfare recipient.
3. The court refused to permit recovery for the wrongful death of a full-term viable fetus.
The jury had before it the following evidence which was credible:
The plaintiff went to the hospital with false labor pains on August 28 and was discharged after the defendant doctor examined her. She was examined by the doctor on September 2 in his office, and at that time the membrane was thin, but the water had not broken. The doctor ordered her to go to the hospital so that labor could be induced. She went to the hospital and was examined externally by a nurse who detected the heartbeat of the fetus. The nurse caused her to wear a hospital gown and put her to bed. Because of a complicated delivery in the obstetrics room, plaintiff was left in bed with her sister in attendance. She had no labor pains, and she made no call for assistance although there was a call button for her convenience. After approximately two hours the other delivery was completed and the delivery room made ready for service. The nurses then undertook to induce labor for the appellant but experienced some difficulty in getting the equipment to function properly. Just as the machine was ready for service, the defendant doctor arrived at the hospital and made an examination of the plaintiff and discovered that the umbilical cord was protruding from the vagina. He was not able to detect any fetal heartbeats and attempted to relieve the pressure on the cord but was not able to restore life to the fetus. The nurses had not made a vaginal examination prior to the arrival of the doctor. Labor was induced, and the dead fetus was thereafter delivered.
As to the first assignment of error, there was evidence that some hospitals in the vicinity require a vaginal examination by a nurse upon arrival of a pregnant patient for delivery of the child. The evidence does not clearly preponderate that the requirement is in general use in this area, and this is especially true in this case where the patient was examined by the doctor immediately before she entered the hospital. Whether the failure to so examine by the nurses would be negligence would also be determined in the light of all the surrounding circumstances. The patient in this case had come immediately from the doctor's office. She made no statement that her water had broken during the trip. There was nothing to indicate that it had. She was not in labor. The nurses were busy with a complicated emergency delivery at the time. Whether the nurses should have ceased their work with the emergency case and examined the appellant internally was a factual question which the jury was required to decide. We do not change the findings of a jury where there is competent evidence to sustain them, and in this case we cannot say that the actions of the doctor and the lack of action of the nurses were so clearly negligent that we should reverse the judgment which was based on the jury verdict.
The appellant claims error because the court did not grant a mistrial after testimony was given by the defendant doctor while being cross-examined by the attorney for the hospital. The testimony concerned the doctor's record of the patient and was as follows:
Q. And I note it says 'Name: Billie Jean Rex.' Is that the name under which she came to you for treatment initially?
A. Yes, it is.
Q. Then, above it is written the name 'Betty Nelson.' When did you get the name of Betty Nelson?
A. The patient came to me first in the wintertime. The first I note of her name was different than Billie Jean Rex was in June at which time she had applied for welfare and was required to give her proper identification and at this time I learned that her name was Betty Nelson and we had an illegitimate pregnancy as well.
Because the pregnancy was due to an illegitimate relationship, the plaintiff apparently gave her maiden name so as to avoid embarrassment.
Although the court pursuant to a pretrial motion had ordered counsel not to mention illegitimacy and welfare, the doctor seemed to be trying to explain the reason why his medical chart showed that the original name was other than that of the plaintiff.
The court had originally thought that the two subjects had no relevancy to the case and so made the order above mentioned. In denying the motion for a new trial, the judge stated:
The appellant had seven other children, and her mental anguish might not be so acute at the loss of an illegitimate fetus as would be if she had no children and the one expected was legitimate. Many women undergo abortions in such a situation, and the jury was entitled to know all the circumstances if they were to fairly appraise the quantum of mental anguish which appellant suffered. We do not think the court erred in refusing to grant a mistrial.
The third assignment of error is without merit and was decided to be so in the case of Webb v. Snow. 1 There the plaintiff, a married lady, was pregnant and suffered a miscarriage as a result of an assault and battery by the defendants. She sought damages for the wrongful death of her child and caused the trial court to instruct the jury to the effect that if she recovered, she would be entitled to 'money damages for the loss of her unborn child as a result of said miscarriage.' In setting aside the verdict for the plaintiff, this court stated:
. . . While injuries resulting in a miscarriage are actionable, and compensation may be awarded for the physical and mental sufferings experienced by a woman who has a miscarriage by reason of injuries caused by the wrongful acts of others, damages are not awarded for 'loss of the unborn child' itself. . . . (Emphasis added.)
In the case now before us, the trial judge gave an instruction which contained the following: '(C)ompensation may be awarded for mental suffering experienced by a woman undergoing such an experience.' The plaintiff cannot complain about the instruction, as it allowed recovery for her mental distress even though the death of the fetus was not caused by a battery or by wilful misconduct. The question of damages is moot since the jury found by general verdict for each de...
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... ... Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966); Hamby v. McDaniel, 559 S.W.2d 774 (Tenn., 1977); Nelson9 S.W.2d 774 (Tenn., 1977); Nelson v. Peterson ... ...
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... ... 177, 365 A.2d 748 (1976) ("person" includes fetus); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) ("person" includes viable fetus); Nelson v. Peterson, 542 P.2d 1075 (Utah 1975); Vaillancourt v. Medical Center Hospital, 139 Vt. 138, 425 A.2d 92 (1980) ("person" includes viable fetus); ... ...
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... ... Haralson, Kinerk & Morey by Carter Morey, Denneen L. Peterson, Tucson, for amicus curiae: Erickson ... FELDMAN, Justice ... This case presents the question of whether a ... Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Nelson v. Peterson, 542 P.2d 1075 (Utah 1975); Vaillancourt v. Medical Center Hosp., 139 Vt. 138, 425 A.2d 92 (1980); Moen v. Hanson, 85 Wash.2d 597, 537 ... ...
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Practice Pointers
...(Utah 1980). [8] See, e.g., Hill v. Dickerson, 839 P2d 309 (Utah 1992) (precluding use of late-designated witnesses); Nelson v. Peterson, 542 P.2d 1075 (Utah 1975) (references to plaintiff's welfare status and illegitimacy of her child). The possibilities are endless: subsequent remedial me......
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...of Motions in Limine 1. The ruling is interlocutory and may be changed at any time during the proceedings. In Nelson v. Peterson, 542 P.2d 1075, 1076-78 (Utah 1975), the trial court had granted plaintiff's motion in limine to exclude mention of illegitimacy and welfare in a wrongful death a......