Peterson v. Gray

• Decision Date: 02 July 1993
• Docket Number: No. 92-340,92-340
• Citation: 628 A.2d 244,137 N.H. 374
• Parties: Gertrude M. PETERSON v. Lawrence N. GRAY, M.D.
• Court: New Hampshire Supreme Court

Page 244

628 A.2d 244

137 N.H. 374

Gertrude M. PETERSON v. Lawrence N. GRAY, M.D.

No. 92-340.

Supreme Court of New Hampshire.

July 2, 1993.

Nixon, Hall & Hess, P.A., Manchester (David L. Nixon on the brief, and Francis G. Murphy orally), for plaintiff.

Ransmeier & Spellman Professional Corp., Concord (Steven E. Hengen, on the brief and orally), for defendant.

JOHNSON, Justice.

The plaintiff, Gertrude M. Peterson, sued the defendant, Lawrence N. Gray, M.D., for medical malpractice. Following a jury verdict for the defendant, the plaintiff moved to set it aside and for judgment notwithstanding the verdict. The Superior Court (Gray, J.) denied the motions, and the plaintiff appeals, arguing that the jury's verdict was against the great weight of the evidence and that the trial court's instructions were erroneous. We agree that the court's charge to the jury contained erroneous instructions on the issues of proximate cause and aggravation of pre-existing conditions. Accordingly, we reverse and remand for a new trial.

The plaintiff sought treatment from the defendant, a hand surgeon, because she was experiencing pain in her left hand. The defendant diagnosed arthritis in her carpal metacarpal joint, as well as de Quervain's disease, a type of tendonitis. To relieve the pain caused by the arthritis, the defendant recommended and performed a trapeziectomy--that is, the removal of the trapezium, one of eight bones in the wrist--and filled the space with folded tendons in a procedure known as the "anchovy procedure" because the tendons are folded over like anchovies. Following the operation, another wrist bone, the scaphoid, rotated into the space where the trapezium had been, despite the "anchovy procedure," causing the plaintiff's wrist to collapse and necessitating the fusion of her wrist bones. The plaintiff can now use her left hand only in an "assistive" capacity.

Both parties agree that, during the course of the trapeziectomy, the defendant initially misidentified the scaphoid as the trapezium and mistakenly severed at least three ligaments that connected the scaphoid to two neighboring bones, the lunate and the radius. At trial, the defendant testified that he quickly recognized and repaired his mistake, causing the plaintiff no ill effects. The plaintiff, on the other hand, questioned the effectiveness of the defendant's repair and argued that the error amounted to negligence and proximately caused the collapse of her wrist. The defendant denied the plaintiff's allegations, maintaining that the wrist collapse was an inherent risk of the medically accepted trapeziectomy.

At the close of the evidence, the trial court instructed the jury as to the elements of the plaintiff's case, including proximate cause. The trial court's instruction on proximate cause was particularly important in this case because there was no question that the plaintiff had a pre-existing condition relative to her left wrist. The trial court initially defined proximate cause as follows:

"An injury or damage is proximately caused by an act or a failure to act whenever you judge from the evidence in the case that the act or omission probably played a substantial part in bringing about or actually causing the injury, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission."

Although the court occasionally spoke of the plaintiff's burden to prove "that the defendant's act or failure to act was a substantial factor in bringing about the alleged injury," the court twice instructed the jury not to award damages to the plaintiff unless she proved that the defendant's actions were "the proximate cause" of her injuries. (Emphasis added.) Regarding the plaintiff's pre-existing wrist problems, the trial court stated:

"Should you have occasion to consider the issue of damages in this case, you may not include in the award any amount to cover any physical condition which pre-existed the events complained of. You may only consider those injuries which you find to have been a natural and probable consequence of the defendant's fault, if any."

The plaintiff objected to the court's causation instructions, maintaining that they implied the plaintiff could only recover damages if she proved that the defendant's mistake was the sole cause of her injuries. In response, the trial court gave the following instruction:

"Did the defendant breach the standard of care, and were those injuries--was that breach a substantial cause of the injuries and the damages of which she presently complains, keep in mind with respect to her prior injuries or the status of her health. If you find such--for whatever degree you may find the prior condition of her health, while that--they're not a factor in this case; anyone takes someone as they find them. So that prior injuries may or may not figure in, if you find--if you further first find negligence, you may find that prior injuries were aggravated by or prior conditions were aggravated by that negligence. That's okay for you to do that, if you do that--you choose to do that; but you must find, to award a verdict for the plaintiff in this case--you must find that she has met her burden of proof as to the fact that--if you find that fact as to the doctor's negligence, in accordance with that standard of care I gave you, as to the causation and as to the damages."

(Emphasis added.) The plaintiff objected to this statement of the law, too, but the trial court gave no further instructions. The jury returned a verdict for the defendant, and the plaintiff appealed, arguing as she did below that the trial court erroneously instructed the jury on the issues of proximate cause and aggravation of pre-existing conditions.

The standards for reviewing a court's jury instructions are well established. "The purpose of jury instructions is to identify the factual issues which are material for a resolution of the case, and to inform the jury of the appropriate standards by which they are to decide them." Johnston v. Lynch, 133 N.H. 79, 89, 574 A.2d 934, 940 (1990). "It [is] the duty of the Trial Court to fully and correctly instruct the jury as to the law applicable to the case...." Cyr v. Sanborn, 101 N.H. 245, 250, 140 A.2d 92, 96 (1958). Accordingly, "the test for determining whether an erroneous civil jury charge is reversible error is whether the jury could have been misled" into basing its verdict on a misperception of the law. Bernier v. Demers, 121...