Patrick v. Sedwick
| Decision Date | 21 April 1966 |
| Docket Number | 602,Nos. 587,s. 587 |
| Citation | 413 P.2d 169 |
| Parties | Mary E. PATRICK, Appellant, v. Dr. Jack D. SEDWICK, Appellee. Jack D. SEDWICK, Appellant, v. Mary E. PATRICK, Appellee. |
| Court | Alaska Supreme Court |
Robert A. Parrish, Fairbanks, for Mary E. Patrick.
Arthur D. Talbot, Anchorage, for Dr. Jack D. Sedwick.
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
These consolidated appeals are taken from a $45,000.00 judgment entered by the trial court on January 12, 1965, in favor of Mary Patrick against Dr. Jack Sedwick.
This is the third occasion that this cause has been before this court. A brief recapitulation of the history of this litigation is necessary.
On July 10, 1957, Dr. Sedwick (hereinafter referred to as appellee) performed a subtotal thyroidectomy operation upon Mary Patrick (hereinafter referred to as appellant). Thereafter, on July 3, 1959, appellant filed a personal injury action against appellee. During the first week in October 1961, a five day nonjury trial was held. On February 1, 1962, the trial court filed a memorandum decision in which it found appellee negligent in regard to his postoperative treatment of appellant. At the time the lower court rendered this decision, it also ordered counsel to file briefs on the question of damages. 1
The trial court's memorandum decision and order of February 1, 1962, resulted in motions by both parties to amend the court's findings as to liability and by appellant for a new trial. Thereafter, on October 11, 1962, the trial court entered an order which denied the parties' respective motions for a new trial 'on all issues of liability' but granted a new trial on the issue of damages. 2 Apparently the trial court was of the opinion that the damage issues were not adequately presented due to the various theories of liability upon which the case was tried and also because of the trial court's conclusion that appellee was only postoperatively negligent.
Appellant then appealed to, this court from the trial court's order of October 11, 1962. In regard to this initial appeal, it was held that neither the memorandum decision of February 1, 1962, nor the subsequent order of October 11, 1962, constituted 'a final judgment from which an appeal may be taken under our rules.' 3 The appeal was dismissed due to its prematurity and the case was remanded to the trial court for further proceedings. 4
After this court's mandate had been filed in the superior court, the parties stipulated to the entry of a judgment in appellee's favor, nunc pro tunc as of February 1, 1962. The trial court then entered judgment for appellee pursuant to this stipulation. 5
Appellant then again appealed to this court. In this second appeal, this court held that appellant had established a prima facie case of negligence as to the manner in which appellee had performed the subtotal thyroidectomy surgery. 6 The trial court's findings and judgment in favor of appellee on the issue of liability were set aside, and the case was remanded
with directions to enter findings for the plaintiff on the issue of liability and then to proceed to determine the damage issue. 7 (Emphasis furnished.)
Subsequent to this court's remand, 8 counsel for appellee, on November 20, 1964, moved the superior court for an order permitting further discovery. 9 In this motion appellee sought to have appellant examined by three physicians and allowance of such further depositions as might be indicated by the results of the requested medical examinations of appellant. Appellee grounded his motion on the fact that over three years had elapsed since the matter was tried to the court and that 'justice' would require that he 'be allowed to discover and show how plaintiff has fared since her case was originally tried.' Appellee also based his motion for additional discovery on the fact that Dr. Robert B. Lewy of Chicago, in May of 1963, had perfected a
quick and painless technique for restoring acceptable voice and breathing to many patients who have suffered the paralysis of one vocal cord following the loss of a recurrent laryngeal nerve.
Appellee also contended that if appellant's paralyzed vocal cord is treatable by the Lewy technique, this fact would constitute newly discovered evidence of the utmost importance in assessing plaintiff's damages.
During oral argument on appellee's motion for further discovery, the trial court had occasion to allude to its October 11 1962, order in which a new trial on the issues of damages had been granted. In explaining the basis of his grant of a new trial as to damage issues, the trial judge stated:
I had rejected the grounds of liability on the basis that the doctor was negligent in the course of his operation * * * but I had found liability on the grounds that the doctor in his postoperative treatment had abandoned the partient. I had felt that the damages which might flow from * * * his obligation in this connection, might not have been anticipated by attorneys representing the parties here, and I was unsure as to what the major damages ought to be in this connection; so I had, for that reason decided to at least investigate to determine what damages should be * * *. I have in mind now to defer any action on this motion until I review the transcript to find out and inquired into it; and at least refreshed my recollection, as to what the testimony is that may bear on damages. I suppose that if I found it were necessary or desirable to investigate the possibilities of treatment, I might grant your motion. If, on the other hand, I find that on the basis of the present record that I can adequately impose-or reach-find sufficient evidence to render any judgment on damages, and that the uncertainties in the procedure suggested by you, outweigh any benefits far beyond reasonable mitigation, then I would deny your application and enter a judgment. (Emphasis furnished.)
After oral argument the trial court took appellee's discovery motion under advisement and then on January 12, 1965, filed 'Findings of Fact,' 10 'Memorandum on Damage Issues,' and a 'Judgment' in the amount of $42,500.00, plus $2,500.00 in attorney's fees.
In his conclusions of law, the trial judge stated in part:
As a result of the defendant's negligence, plaintiff suffered physical impairment, loss of earning capacity, and mental suffering.
Plaintiff is entitled to recover damages from the defendant for (a) physical impairment; (b) loss of earning capacity; (c) mental suffering including anquish, embarrassment, humiliation, fear and the like.
In his 'Memorandum on Damage Issues,' the trial judge concluded that the evidence adduced at the trial in October 1961, was 'sufficient to arrive at a determination on damage issues.' The trial judge in this same memorandum also held that appellee's motion for further discovery should be denied. In reaching this conclusion, the trial judge stated in part:
So far as I can ascertain the injection of Tantalum glycerine or Teflon-glycerine (the substances recommended) into the lateral portion of a vocal cord is a practical and safe procedure. Its use is indicated to increase the substance of a paralyzed, lateral lying, vocal cord toward the midline, to cooperate tonally and vocally with its active fellow. There is no assurance, however, that any improvement is permanent.
Under the circumstances, defendant's application for additional discovery is denied. The only certain result would be an additional delay. Even if improvement might be noted, there is no assurance that it would be permanent. (Emphasis furnished.)
As to the damages to which appellant was entitled, the trial court, in its Memorandum on Damage Issues, found appellant should recover:
(1) $6,000 for physical impairment of the plaintiff from the time of the operation, July 10, 1957, up until the time of the trial, October 2, 1961, and an additional $15,000 for future physical impairment.
(2) $3,000 for loss of time arising out of plaintiff's inability to perform her ordinary pursuits, such as housework and the like, and an additional $10,000 for future loss of earning capacity reduced 20% to $8,000 estimated present cash value.
(3) $3,000 for mental suffering including embarrassment, anguish, humiliation, fear and the like, and $7,500 for future mental suffering.
Costs shall be assessed by the Clerk and an attorney's fee in the amount of $2,500 is allowed.
Judgment was entered on January 12, 1965, and on January 22, 1965, appellee moved for a new trial on the grounds of newly discovered evidence. 11 Thereafter, the trial court denied appellee's motion for a new trial and appellant and appellee (cross-appellant) both appealed from the trial court's entry of judgment of January 12, 1965.
Before considering the issues relating to damages in these consolidated appeals, we think it appropriate to discuss appellee's contention that 'the decision of this court on plaintiff's second appeal, holding the defendant liable, is clearly erroneous and should be reconsidered.' Appellee concedes that 'an appellate court ordinarily will not reconsider questions which have been definitely determined on a former appeal.' 12 Appellee further contends that in 'exceptional circumstances and when cogent reasons therefor exist' questions decided on a former appeal may be reconsidered and reversed. 13
It is a well settled rule of law that whatever issues have been decided on a first appeal will not be re-examined on a second appeal in the same case. Downie v. Pritchard, 309 F.2d 634, 636 (8th Cir. 1962); Pyramid Life Ins. Co. v. Curry, 291 F.2d 411, 414 (8th Cir. 1961); Midland Valley R. R. v. Jones, 115 F.2d 508, 509 (10th Cir. 1940); Vangel v. Vangel, 51 Cal.2d 510, 334 P.2d 863, 870 (1959); Davis v. Payne & Day, Inc., 12 Utah 2d 107, 363 P.2d 498, 499 (1961). In Woodworkers Tool Works v. Byrne, 202 F.2d 530, 531 (9th Cir. 1953), the policy considerations underlying the doctrine of the law of the case were said...
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