Newberry v. Martens

• Decision Date: 30 December 2005
• Docket Number: No. 30967.,30967.
• Citation: 142 Idaho 284,127 P.3d 187
• Parties: Frank C. NEWBERRY, Plaintiff-Respondent, v. Laurence L. MARTENS, M.D., Defendant-Appellant, and Twin Falls Clinic and Hospital, and John Doe and Jane Doe, husband and wife, I through X, and Business Entities I through X, Defendants.
• Court: Idaho Supreme Court

127 P.3d 187

142 Idaho 284

Frank C. NEWBERRY, Plaintiff-Respondent, v. Laurence L. MARTENS, M.D., Defendant-Appellant, and Twin Falls Clinic and Hospital, and John Doe and Jane Doe, husband and wife, I through X, and Business Entities I through X, Defendants.

No. 30967.

Supreme Court of Idaho, Twin Falls, November 2005 Term.

December 30, 2005.

COPYRIGHT MATERIAL OMITTED

Tolman Law Office, Twin Falls; Gjording & Fouser, PLLC., and Bobbi K. Dominick, of Counsel, Boise, for appellants. Bobbi K. Dominick argued.

Pedersen and Jackson, Twin Falls, for respondent. Kenneth L. Pederson argued.

BURDICK, Justice.

Laurence Martens, M.D. (Dr. Martens) appeals from a district court judgment ordering him to pay damages to Frank C. Newberry (Newberry) for medical malpractice. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

One night while repairing an automobile, Newberry, who was hammering metal on metal, felt something strike his right eye. Newberry immediately felt a burning sensation and saw spots in his field of vision. He was driven to an emergency room in Twin Falls where Dr. Martens, a family practice physician, was on duty. Dr. Martens examined Newberry's eye, but was unable to locate any foreign matter. Dr. Martens determined that most likely an object struck Newberry's eye, causing a superficial laceration, but deflected away without penetrating. Dr. Martens prescribed Newberry antibiotics and sent him home with instructions to return the next day.

When Newberry returned the following day, Dr. Martens again examined his eye. Newberry reported that the spots in his vision remained but that the burning sensation was less severe. Seeing nothing of concern, Dr. Martens again sent Newberry home.

The day after this second visit, Newberry experienced extreme pain in his eye and increasing disturbances of his vision. Later that day, he lost all vision in his right eye. Newberry sought medical treatment from Dr. David Leach, (Dr. Leach) an ophthalmologist. Dr. Leach located a small piece of metal deep in Newberry's eye, and sent Newberry to Salt Lake City for specialized treatment not available in Twin Falls. Doctors performed surgery on Newberry's eye, but were unable to return his vision. It was later determined that Newberry lost his eyesight due to the introduction of a virulent bacteria known as Bacillus-Cereus along with the metal shard.

Newberry sued Dr. Martens and the Twin Falls Clinic and Hospital for medical negligence and other related claims. Twin Falls Clinic and Hospital was dismissed by stipulation, but Newberry and Dr. Martens proceeded to trial. At trial, Dr. Martens objected to two jury instructions discussing proximate cause, and he also objected to the admission of expert testimony presented by Dr. Leach suggesting that Dr. Martens breached the applicable standard of care for a health care provider. After an eight-day trial, a jury returned a verdict in favor of Newberry and awarded him $250,000 in economic damages and $500,000 in non-economic damages. Following post-trial motions, the district court adjusted the economic damages from $250,000 down to $39,843.05, resulting in a total judgment of $539,843.05. Dr. Martens filed a timely appeal from that judgment which is now before this Court.

II. STANDARD OF REVIEW

"The standard of review for issues concerning jury instructions is limited to a determination of whether the instructions, as a whole, fairly and adequately present the issues and state the law. When the instructions, as a whole, do not mislead or prejudice a party, an erroneous instruction does not constitute reversible error." Bailey v. Sanford, 139 Idaho 744, 750, 86 P.3d 458, 464 (2004) (quoting Silver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 882, 42 P.3d 672, 675 (2002)).

The decision whether to admit expert testimony is within the sound discretion of the trial court and will not be overturned absent a showing the trial court abused that discretion. Kolln v. St. Luke's Reg'l Med. Ctr., 130 Idaho 323, 327, 940 P.2d 1142, 1146 (1997).

III. ANALYSIS

On appeal, Dr. Martens presents two issues. First, he argues the jury instructions given below were in error. Second, he contends the district court erred in permitting one of Newberry's experts, Dr. Leach, to present expert testimony that Dr. Martens breached the applicable standard of care.

A. Jury Instructions

It is Dr. Martens' position that two jury instructions in particular were in error. At trial, these instructions were numbered 10 and 11, and both dealt with proximate cause. The instructions at issue were not identical to the standard pattern jury instructions, but a court may diverge from those instructions if a "different instruction would more adequately, accurately or clearly state the law." I.R.C.P. 51(a)(2). Instruction number 10 stated:

When I use the expression "proximate cause," I mean a cause which, in natural or probable sequence, produced the damage complained of. It need not be the only cause. It is sufficient if it is a substantial factor concurring with some other cause acting at the same time, which in combination with it, causes the damage.

Instruction number 11 read:

A cause can be a substantial contributing cause even though the injury, damage or loss would likely have occurred anyway without that contributing cause. A substantial cause need not be the sole factor, or even the primary factor in causing the plaintiff's injuries, but merely a substantial factor therein.

From Dr. Martens' perspective, the problem with these instructions is that they permitted the jury to assign liability if the plaintiff met the "substantial factor" test, rather than the arguably stricter "but for" test. While the "substantial factor" test inquires into whether the defendant's conduct substantially contributed to the plaintiff's injury, the "but for" test asks whether the complained of injury would have occurred "but for" the defendant's alleged negligence — in other words, what would have transpired in a hypothetical world absent the defendant's alleged negligence. See Doe v. Sisters of the Holy Cross, 126 Idaho 1036, 1040, 895 P.2d 1229, 1233 (Ct.App.1995).

At trial, Dr. Martens advanced as his theory of the case that he was not liable for Newberry's loss because Newberry would have lost his eye even without Dr. Martens' negligence. In sum, Dr. Martens argued to the jury that his alleged negligence was not a "but for" cause of Newberry's injury. Dr Martens contends the district court erred in permitting the jury to assign liability based on the substantial factor test and that so instructing the jury precluded it from considering his theory of the case. Additionally, Dr. Martens argues the "but for" test is properly used in place of the "substantial factor" test in cases such as this where there is only one allegedly negligent cause of the plaintiff's injury.

In discussing proximate cause, it should first be noted that it contains two components. First there is actual cause, and second there is true proximate cause, sometimes known as "legal cause." Munson v. State, Dept. of Highways, 96 Idaho 529, 531, 531 P.2d 1174, 1176 (1975); Sisters of the Holy Cross, 126 Idaho at 1039-40 n. 1, 895 P.2d at 1232-33 n. 1. Actual cause is the factual question of whether a particular event produced a particular consequence. Sisters of the Holy Cross, 126 Idaho at 1039-40 n. 1, 895 P.2d at 1232-33 n. 1. True proximate cause "focuses upon legal policy in terms of whether responsibility will be extended to the consequences of conduct which has occurred." Munson, 96 Idaho at 531, 531 P.2d at 1176 (quoting Henderson v. Cominco American, Inc., 95 Idaho 690, 695, 518 P.2d 873, 878 (1973)). Phrased differently, it is the defendant's conduct (actual cause) that inflicts the harm, but it is the law (legal cause or true proximate cause) that determines whether liability for that conduct attaches. Id. In this case, the question in dispute concerns actual cause.

Under Idaho law, in a medical malpractice action where there is evidence of two or more possible causes of the plaintiff's injury, rather than using the "but for" test the jury must be instructed that the doctor's negligence "was a proximate cause of the injury if it was a substantial factor in bringing about the damage."¹ Fussell v. St. Clair, 120 Idaho 591, 591, 818 P.2d 295, 295 (1991). This Court has "specifically reject[ed]" the inclusion of the "but for" test where more than one cause could have brought about the injury. Id. "The but for instruction and the substantial factor instruction are mutually exclusive." Le'Gall v. Lewis County, 129 Idaho 182, 187, 923 P.2d 427, 432 (1996). In short, the "but for" test may be employed when there is a single possible cause, but when there are multiple possible causes of the plaintiff's injury a "substantial factor" instruction must be given instead. Id. at 186-87, 923 P.2d at 431-32.

In Fussell, the plaintiffs were the parents of a child who suffered brain damage as the result of a difficult birth. 120 Idaho at 592, 818 P.2d at 296. At trial, the parties presented evidence of two possible causes of the baby's injury: the parents indicated the harm was caused by the defendant doctor's negligence, and the doctor argued that the injury resulted from a prolapsed umbilical cord that occurred naturally and without negligence on anyone's part. Id. at 593, 818 P.2d at 297. The trial court in Fussell gave instructions to the jury that included the "but for" test, but because there were multiple possible causes of the baby's injury, this Court determined that instructing the jury on the "but for" test under those circumstances was reversible error. Id. at 593-94, 818 P.2d at 297-98.

In this case the district court determined that as in Fussell, more than one cause was advanced at trial as a possible cause of the Plaintiff's damages. At trial, Newberry stressed as possible causes Dr. Martens' negligence in failing to locate...