Phillips v. Eastern Maine Medical Center

• Decision Date: 12 October 1989
• Citation: 565 A.2d 306
• Parties: Winifred PHILLIPS, P.R. of Estate of Norman Gardner, et al. v. EASTERN MAINE MEDICAL CENTER.
• Court: Maine Supreme Court

Page 306

565 A.2d 306

Winifred PHILLIPS, P.R. of Estate of Norman Gardner, et al. v. EASTERN MAINE MEDICAL CENTER.

Supreme Judicial Court of Maine.

Argued Nov. 9, 1988.

Decided Oct. 12, 1989.

Warren M. Silver (orally), Wayne R. Foote, Bangor, for plaintiff.

Malcolm L. Lyons (orally) John C. Nivison, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Augusta, for defendant.

Before ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

ROBERTS, Justice.

The Eastern Maine Medical Center (Medical Center) appeals from a judgment entered after a jury trial in Superior Court (Penobscot County, McKinley, J.). The jury found that Norman Gardner's death was the result of the failure of the Medical Center's staff to detect and repair an esophageal tear. The Medical Center challenges the sufficiency of expert testimony on causation, an evidentiary ruling on the introduction of a deposition, and the jury instructions. It also contends the damages awarded are excessive. Because we agree with the last contention only, we order a remittitur.

On June 26, 1983, a piece of meat became lodged in Norman Gardner's esophagus as he was eating lunch. Several hours later, with the meat still lodged, Gardner went to the emergency room at the Medical Center. After an emergency room physician tried unsuccessfully to remove the meat, a surgeon was called. The meat was surgically removed from Gardner's throat in the early morning of June 27.

About an hour after surgery, Mrs. Gardner visited her husband and reported to the recovery nurse that he was wheezing and in pain. Although the symptoms signaled that there was a tear in the esophagus, the nurse did not inform the surgeon. When he was informed, some six hours later, he ordered an esophagram and performed a thoracotomy to repair a two millimeter esophageal tear.

After the thoracotomy, Gardner's condition continued to worsen and a specialist in internal medicine and infectious disease was consulted. The specialist testified at trial that Gardner's condition was the result of infection from the intestinal tract transmitted during the six hours before the tear was repaired. The specialist further testified that Gardner's death, 74 days later, probably could have been avoided had the tear been repaired quickly.

The jury returned a verdict totaling $1,026,700 in damages, of which $740,000 was allocated to Gardner's conscious pain and suffering and loss of enjoyment of life. This appeal ensued.

I. Proximate Cause

In order to establish liability in a medical malpractice case, the plaintiff must show that the defendant's departure from a recognized standard of care was the proximate cause of the injury. Cox v. Dela Cruz, 406 A.2d 620 (Me.1979). Evidence at trial indicated that pain was a symptom of an esophageal tear and that, to prevent infection, the tear must be repaired quickly. The failure of the hospital staff to notify the surgeon was a departure from a recognized standard of care.

The Medical Center insists, however, that the evidence is insufficient to establish causation. The hospital argues that the patient's chances for survival, even if the tear were repaired in less than six hours, would have been less than 50% or less than probable. According to its argument the jury could not have found the hospital's negligence was the proximate cause of death.

There are different approaches to the evaluation of evidence of causation in medical malpractice cases. Some jurisdictions require the plaintiff to show a better than even chance of avoiding harm in the absence of medical negligence. See e.g. Cooper v. Sisters of Charity of Cincinnati, 27 Ohio St.2d 242, 272 N.E.2d 97 (1971); Curry v. Summer, 136 Ill.App.3d 468, 91 Ill.Dec. 365, 483 N.E.2d 711 (1985); Gooding v. University Hospital Building, 445 So.2d 1015 (Fla.1984).

Other courts employ what is called the "last chance" or "lost chance" of survival test, in which the plaintiff must show that he was deprived of a significant chance of avoiding harm. See e.g. Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984); Northern Trust Co. v. Louis A. Weiss Memorial Hospital, 143 Ill.App.3d 479, 97 Ill.Dec. 524, 493 N.E.2d 6 (1986); Sharp v. Kaiser Foundation Health Plan, 710 P.2d 1153 (Colo.App.1985).

Based on the testimony at trial, we conclude that the jury could rationally determine that the plaintiffs satisfied even the more stringent requirement. The specialist's opinion that, had the tear been repaired within six hours, Gardner would have had a better than even chance of survival is sufficient. The Medical Center's argument that cross-examination revealed factors affecting the 50% prediction misses the point. Properly interpreted, the specialist's testimony explained that any delay decreases the prospect of survival and that until six hours elapsed the prospect was better than 50%. Obviously, the jury was free to conclude that due care on the part of the Medical Center would have produced repair in far less than six hours.

II. Deposition

At the conclusion of the defendant's case, the Medical Center offered as evidence a deposition which allegedly contained contradictory testimony of Mrs. Gardner. The trial court refused admission on the grounds of unfairness because she had not been cross-examined on her deposition testimony.

The deposition of a party may be used at trial for any purpose. M.R.Civ.P. 32(a)(2). 1 Field, McKusick & Wroth, Maine Civil Practice § 26.20, at 447 (2d ed.1970). The exclusion of Mrs. Gardner's deposition was error. Rulings of this kind are not disturbed, however, unless the party challenging the ruling shows prejudice. M.R.Civ.P. 61; 2 Field, McKusick & Wroth § 61.1, at 80. M.R.Evid. 103(a); Field & Murray, Maine Evidence § 103.1, at 5 (1987).

The Medical Center has not provided us with a copy of the deposition, which was not filed with the trial court or made a part of the record on appeal. We must, therefore, rely on the colloquy between the court and defense counsel to determine if the exclusion was prejudicial. The deposition testimony, as represented by this exchange with the court, was generally consistent with that given at trial. The Medical Center's attempt to introduce an additional statement that Mrs. Gardner thought her husband would die at the outset was simply not probative on the medical likelihood of his survival. We conclude that it is highly probable that the exclusion did not affect the verdict of the jury. Jucius v. Estate of O'Kane, 511 A.2d 1053, 1056 (Me.1986).

III. Jury Instructions

This Court will disturb a judgment on the grounds that the jury instructions were in error only if the instruction failed to inform the jury correctly and fairly in all necessary respects of the governing law. Eckenrode v. Heritage Management Corp., 480 A.2d 759 (Me.1984). Accordingly we conclude that the trial court's instruction to the jury on the "fragile condition" of the patient and the duties owed by the physician correctly stated the law.

The Medical Center argues that the issue of the "fragile condition" of the patient was never generated and that, in fact, the instruction was misleading on the issue of proximate causation. Throughout the trial, evidence of the patient's diabetes, weight, and age, as well as alleged emphysema, was presented by the defense as causes of the patient's death. It was the position of the Medical Center throughout the trial that the delay in repairing the tear was not fatal and that the patient's prognosis was, from the start, not good. The issue of the patient's "fragile condition" was properly raised by the evidence and the jury was properly instructed to consider the patient's fragile condition only after they had determined that the negligence of the hospital was a proximate cause of Gardner's injury.

IV. Damages

The Medical Center argues that the award of $740,000 for Gardner's pain and suffering is excessive. The Medical Center relies on Chenell v. Westbrook College, 324 A.2d 735 (Me.1974) as defining the duty of the court to set aside a verdict if the jury disregards the evidence or acts from passion or prejudice. Although we will not substitute our judgment for that of the jury, we must examine the record to determine whether the jury's award exceeds the limit of evidentiary support. We conclude that limit is exceeded in the case at bar.

The evidence viewed most favorably to the plaintiffs establishes that Gardner survived in a state of deteriorating health for less than three months. We recognize that, in addition to the mental anguish caused by his impending death, Gardner experienced varying degrees of physical pain throughout his ordeal. Nevertheless, we are left with the firm conviction that the jury was misled by the fact that death ultimately ensued. We are influenced by the special verdict form that asked the jury to assess a dollar amount for "conscious pain and suffering and loss of enjoyment of life." (emphasis added) Although the Medical Center does not challenge the form or the jury instructions, we find the instruction less than clear that "loss of enjoyment of life" must be limited to the period of survival. The decedent's loss of his full life expectancy is not an element of damage recoverable by a personal representative pursuant to 18-A M.R.S.A. § 2-804. The jury could reach the amount assessed only through consideration of elements of damage not covered by Section 2-804. Accordingly, we order a new trial on that aspect of damage alone unless plaintiff Phillips remits all in excess of $370,000.

V. Loss of Consortium

At oral argument the Medical Center conceded that the two claims for loss of consortium under 19 M.R.S.A. § 167-A (loss of consortium) and 18-A M.R.S.A. § 2-804 (wrongful death) were based on different time periods and were not duplicative.

The entry is:

Judgment for $10,000 in favor of Helen L. Gardner affirmed.

Judgment in favor of Winifred F.G. Phillips, P.R. vacated.

Remanded for entry of an...