Nelson v. Trinity Medical Center

• Decision Date: 11 February 1988
• Docket Number: No. 870084,870084
• Parties: Orlan NELSON, Diane Nelson, and Kristen C. Nelson, a minor, and Orlan Nelson as guardian ad litem for Kristen C. Nelson, a minor, Plaintiffs, Appellees, and Cross-Appellants, v. TRINITY MEDICAL CENTER, Defendant, Appellant, and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 886

419 N.W.2d 886

Orlan NELSON, Diane Nelson, and Kristen C. Nelson, a minor,

and Orlan Nelson as guardian ad litem for Kristen

C. Nelson, a minor, Plaintiffs, Appellees, and Cross-Appellants, v. TRINITY MEDICAL CENTER, Defendant, Appellant, and Cross-Appellee.

Civ. No. 870084.

Supreme Court of North Dakota.

Feb. 11, 1988.

Richard H. McGee II, of McGee, Hankla, Backes & Wheeler, P.C., Minot, for plaintiffs, appellees, and cross-appellants.

William P. Studer (argued), Michael J. Vanselow, and Michael C. Connelly, of Oppenheimer, Wolff & Donnelly, St. Paul, Minn., and Robert S. Rau, of Bosard, McCutcheon & Rau, Ltd., Minot, for defendant, appellant, and cross-appellee.

William P. Zuger, of Zuger, Kapsner & Blazer, Bismarck, for amici curiae Michael T. Vandall, M.D., David MacDonald, M.D., P.C., and St. Paul Fire and Marine Ins. Co.

VANDE WALLE, Acting Chief Justice.

Trinity Medical Center (Trinity) appealed from a judgment and a judgment on remittitur awarding damages to Orlan Nelson, Diane Nelson, and Kristen Nelson (plaintiffs) pursuant to a jury verdict. The plaintiffs have also filed a cross-appeal. We affirm.

This is a medical negligence suit arising from the birth of Kristen Nelson in Trinity Medical Center of Minot, North Dakota. Kristen Nelson was born on November 20, 1982. She is the daughter of Diane Nelson and Orlan Nelson, who also acts as her guardian ad litem.

Diane Nelson's labor began with the onset of contractions at approximately 12:45 p.m. on November 20, 1982. The Nelsons left their home in Beulah, North Dakota, for Minot approximately one hour later. Diane Nelson testified that during the drive to Minot the frequency of her contractions increased in a rapid manner, and that she began to experience severe abdominal pain and tightness in her stomach.

Upon arriving at Trinity at approximately 4 p.m. the Nelsons informed the nursing staff of what had occurred during the drive to Minot. Diane Nelson was then placed in a room. From the time she was placed in a room until shortly after 5 p.m. when an emergency Caesarean section was performed, Diane Nelson was under the supervision of Trinity's nurse, Susan Orr.

Diane Nelson's pregnancy was managed by Dr. Michael Vandall and Dr. David MacDonald. They had left standing orders that all their patients were to be placed on a continuous fetal heart-rate monitor. Such a monitor was not placed upon Diane Nelson until approximately 5:07 p.m. This occurred even though Dr. Vandall had discussed the use of such a monitor with Nurse Orr. Nurse Orr testified that she did not place a monitor upon Diane Nelson because she believed both of Trinity's monitors to be in use. Nurse Orr admitted that she did not look for a monitor. There was evidence offered that one of the monitors was not in use during that time. When a monitor was placed upon Diane Nelson it indicated that the child was in fetal distress and an emergency Caesarean section was then performed.

Kristen Nelson was born by the emergency Caesarean section. She was born severely brain-damaged. There was evidence that she will require extensive therapy and nursing-home care, that she will achieve an IQ of only 10 or 15, that she will always have to be fed through a stomach tube, and that she will never gain control over even her basic bodily functions.

It was the theory of the plaintiffs that the brain damage was caused by a placental abruption--a separation of the placenta from the uterine wall causing a loss of oxygen via the blood supply to the child. There was evidence that a placental abruption could have been diagnosed by a fetal heart-rate monitor or through the physical manifestations of Diane Nelson.

The original complaint included Doctors Vandall and MacDonald as defendants in this suit. However, an out-of-court settlement was reached between them and plaintiffs, prior to trial.

The case went to trial with Trinity as the sole defendant. The jury returned a verdict awarding the plaintiffs $7,080,454.18. Trinity then filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court refused to grant a judgment n.o.v., but agreed to grant a new trial unless the plaintiffs entered a remittitur of certain damages. The plaintiffs entered a remittitur and a judgment was issued awarding them $5,680,454.18.

Trinity has appealed, alleging that the trial court committed certain errors during the course of the trial. The plaintiffs have filed a cross-appeal to challenge the trial court's award of a new trial unless the plaintiffs entered a remittitur of certain damages.

I

Initially we note that although Trinity appealed from the judgment and the judgment on remittitur, prior to this appeal Trinity moved for a new trial. By moving for a new trial Trinity restricted itself on appeal to those issues raised in its motion for a new trial. As we stated in Andrews v. O'Hearn, 387 N.W.2d 716, 728 (N.D.1986):

"Plaintiffs' objection to the instruction is also waived because they failed to raise this issue in their motion for a new trial. 'It is well settled that where a motion for a new trial is made in the lower court the party making such a motion is limited on appeal to a review of the grounds presented to the trial court.' Zimbelman v. Lah, 61 N.D. 67, 237 N.W. 207, 208 (1931). This restriction of appealable issues applies not only to review of a denial of the motion for a new trial, but also to the review of the appeal from the judgment itself or from a denial of a motion for judgment notwithstanding the verdict." [Footnote omitted.]

Thus, when Trinity moved for a new trial it restricted itself on any later appeal to those issues raised in the motion.

In this case one of the issues Trinity attempts to raise was not raised in its motion for a new trial. This issue is whether error was committed by the trial court in not disclosing the terms of the physicians' settment agreement to the jury.

In attempting to raise this issue Trinity points out language from our opinion in Davis v. Davis, 268 N.W.2d 769, 771 (N.D.1978). Therein we stated:

"When a party appeals from an order denying a new trial, the review in this court is limited to those grounds which were presented to the district court. However, when there is an appeal from the judgment, the appeal is not limited to those issues raised in a motion for a new trial. All issues which were properly preserved at the trial and raised on appeal are reviewable."

It must be noted that in making this statement we cited no prior decisions of this court supporting this conclusion. However, as we stated in Andrews, the rule that a party moving for a new trial is restricted on appeal to the issues raised in that motion has been applied throughout, and prior to, our Statehood:

"This long-standing rule is derived from our Territorial laws. 1887 Dakota Territory Sess. Laws ch. 21, codified at 1887 Territory of Dakota Code of Civil Procedure Sec. 5094. The statute has been subject to subsequent recodification and changes in language, but its essence, as well as its application, has remained constant over the years. See, e.g., Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965); Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897 (1951); State v. Empting, 21 N.D. 128, 128 N.W. 1119 (1910)." 387 N.W.2d at 728 (footnote 18).

Thus the law in this State is that a party who moves for a new trial is restricted on appeal to those issues raised in the motion for new trial. Therefore, insofar as our decision in Davis v. Davis stands for the proposition that a party who moved for a new trial may raise issues on appeal other than those made in the motion for new trial, it is overruled.

Because Trinity failed to raise the above-specified issue in its motion for new trial, it may not raise it on appeal. However, even if Trinity had properly raised the issue of whether the trial court erred in not disclosing the terms of the physicians' settlement agreement to the jury, we believe the issue is without merit. Just prior to trial the trial court ruled that neither party was to refer to the settlement agreement without first consulting with the court. But the trial court also indicated that reference to the settlement agreement could be made at appropriate times in the trial. The trial court stated:

"Let's do it this way. I will make a ruling that without further specific authority from the Court that neither party is to refer to the fact that the doctors have settled out of the case. Now this isn't an absolute ban because obviously that can change when you get to the appropriate place in the trial such as your cross-examination of the doctor or if there is some other place where you feel, either of you feel it might be appropriate to bring it up then let's take a break and talk about it. So understand that it's not an absolute ban but before it's brought up let's discuss it out of the presence of the jury."

Thus it is clear that the trial court did not prohibit Trinity from introducing evidence concerning the settlement agreement; it only restricted the use of such evidence to an appropriate time during the trial. The fact that Trinity failed to later seek to introduce evidence of the settlement agreement at an appropriate time does not equate with a failure of the trial court to disclose the terms of the settlement agreement.

II

Trinity also claims that the trial court erred in refusing to submit a special verdict form to the jury directing it to determine the respective negligence of the physicians, who had reached an out-of-court settlement with the plaintiffs prior to trial. Plaintiffs urge us to not consider this issue, arguing that Trinity failed to raise this issue in its motion for a new trial and is therefore precluded from raising it on appeal. Plaintiffs do acknowledge that Trinity argued in its motion for new trial that the trial court erred in not giving special verdict forms and interrogatories to the jury in...