Robertson v. Richards

• Decision Date: 27 October 1987
• Docket Number: No. 16043,16043
• Citation: 769 P.2d 505,115 Idaho 628
• Parties: George L. ROBERTSON and Leah Robertson, husband and wife, Plaintiffs-Appellants, v. James L. RICHARDS, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 505

769 P.2d 505

115 Idaho 628

George L. ROBERTSON and Leah Robertson, husband and wife, Plaintiffs-Appellants, v. James L. RICHARDS, Defendant-Respondent.

No. 16043.

Supreme Court of Idaho.

Oct. 27, 1987.

On Rehearing Jan. 31, 1989.

Hawkes, Esplin & Burnham, Pocatello, for plaintiffs-appellants. Da Lon Esplin argued.

Quane, Smith, Howard & Hull, Boise, for defendant-respondent. Jeremiah A. Quane argued.

HUNTLEY, Justice.

I.

The primary issue before this Court is whether the correct standard was applied by the trial court in deciding whether a new trial should have been granted. We hold that the district court did not apply the correct standard. Therefore, we reverse and remand for further proceedings. In remanding for further proceedings, this Court does not give specific direction as to whether or not a new trial should be granted, but directs solely as to the standard which should be utilized in making the determination.

Leah Robertson was involved in a car accident and received multiple injuries. She was taken to the emergency room at the Idaho Falls Consolidated Hospital. Dr. Hansen was the doctor in charge when Robertson arrived at the emergency room. Dr. Hansen did a cursory examination and ordered a side-view neck x-ray and chest x-ray. Dr. Hansen called Dr. Richards, the defendant, to do a complete physical examination and dictate a history. He also called Dr. Bjornson to perform an orthopedic evaluation. Dr. Richards testified that he and Dr. Bjornson examined the neck and chest x-ray, and that Bjornson, skilled in the diagnosis of neck injuries, did not indicate any abnormalities in the neck x-ray. Dr. Richards ruled out a broken neck. However, the neck x-ray did not show all seven vertebra. Dr. Bjornson testified that he was not asked to review the neck x-ray and there is conflicting evidence as to whether he did look at it.

There is also conflicting evidence as to whether reliance upon a single lateral neck x-ray meets the applicable medical standard of care. All of the plaintiff's experts testified that at least five different views of the neck were required before a broken neck could be ruled out. Dr. Richards, himself, admitted at least three views are needed before making a final determination, yet the record reflects that only one view was taken, which fact Dr. Richards knew.

Dr. Richards excused his failure to require at least three x-rays by asserting that he had relied upon Dr. Bjornson's expertise to diagnose a broken neck. Dr. Richards argues that his reliance on Bjornson met the required standard of care. Dr. Bjornson, however, testified that he did not assume responsibility for diagnosing the neck injury. This matter was highly contested and a close issue at trial.

This Court, based upon the record, does not rule on the applicable standard of care, but notes that this issue is one which entitles the trial court to weigh the testimony in making its determination of whether or not to grant a new trial.

Robertson was taken into surgery during which Dr. Richards performed an endotracheal intubation and cleaned and stitched Robertson's facial cuts, while Dr. Bjornson set her broken leg. Prior to the surgery, Dr. Richards ordered the sandbags which had been used by paramedics to prevent neck movement be taken away from Robertson's neck. After the surgery, Dr. Richards claimed he reviewed the neck x-rays with Radiologist Newell Richardson. Richardson did not recall discussing the neck x-ray with Dr. Richards. On the afternoon of March 27th, Richardson reviewed all of the x-rays and dictated an x-ray report. Specific reference to the neck x-ray indicated that the present examination was not satisfactory and additional x-rays were needed.

During the next three days, Leah began to exhibit a loss of neurological function. Richards asked Dr. Amick, a Neurologist, to assist with the case. Robertson's condition deteriorated in the ensuing eight weeks. The doctors concluded that Robertson would not be able to be removed from the breathing machine. She could not breathe on her own, she could not move her arms or legs, her eyes were crossed, and she lost bowel and bladder control.

In mid-May, Richards, as attending physician, advised the family to consider terminating Leah Robertson's life support system..

                [115 Idaho 630]   The family decided that they wanted a brain scan before making a decision.  The CT Scan revealed water on the brain
                

Dr. Heilbrun, a Neurosurgeon from the University of Utah Hospital, was called in to consult with the Robertson family. In reviewing the medical records, Dr. Heilbrun noted that the x-ray report had recommended additional neck x-rays, but that there had not been any other neck x-rays taken.

Additional x-rays were then taken and revealed a broken neck. There was a fracture of the odontoid process of C-2 near the base of the skull. The fracture was displaced to the rear 10mm, striking Robertson's spinal cord just below the brain stem. Heilbrun put Robertson in cervical traction to place her spine in the proper position, and the neck fracture was fused. The traction and fusion enabled Robertson to progress to the point of breathing on her own, and she gained the use of her left and right sides; however, due to neurological damage, Robertson's eyes were permanently crossed. At the University of Utah, it was also discovered that Robertson had a broken hip. After three-and-a-half months at the University of Utah Hospital, Robertson returned home. Within five months, Robertson returned to the University of Utah for rehabilitation work; this work enabled Robertson to gain control of her bowels and bladder, and she learned to walk with the aid of a walker.

The Robertsons brought suit against Dr. Richards and seven other defendants. All of the defendants, except Dr. Richards, were insured by the same company and settled before trial.

The jury returned a verdict favoring Dr. Richards. The Robertsons moved for judgment notwithstanding the verdict ¹ or for a new trial. The court denied the motion. The Robertsons now appeal.

In denying the Robertsons' motion for a new trial, the district court stated in its findings the following:

In summary the court makes the following findings:

II. That the evidence was conflicting and depending upon the weight and credibility, the jury chose to give to the evidence, they could have gone either way in rendering their verdict. The fact that the court might have differed and would have weighed the evidence in a different way does not open the way for a new trial.

This finding by the trial court is at issue. We hold that the trial judge, by failing to recognize his power to evaluate the evidence and determine if a new trial should be granted, applied the wrong standard and thus erred.

The trial court is given broad discretion in granting a new trial. Jacksha v. Gilbert, 4 Idaho 738, 44 P. 555 (1896). Idaho Rule of Civil Procedure 59(a)(6) ² allows for the granting of a new trial when the judge determines there is an insufficiency of the evidence to justify the jury's verdict.

In Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986), this Court described the power which I.R.C.P. Rule 59(a)(6) vests in the trial court in granting a new trial:

Idaho Rule of Civil Procedure 59(a)(6) permits the trial court to grant a new trial on all or part of the issues in an action by reason of the "[i]nsufficiency of the evidence to justify the verdict or other decision, or that it is against the law." It is well established that the trial judge may grant a new trial based on I.R.C.P. Rule 59(a)(6) where, after he has weighed all the evidence, including his own determination of the credibility of the witnesses, he concludes that the verdict is not in accord with his assessment on the clear weight of the evidence.

[115 Idaho 631] Sheets v. Agro-West, Inc., 104 Idaho 880, 883, 664 P.2d 787, 790 (Ct.App.1983). Id. 111 Idaho at 766, 727 P.2d at 1194.

In Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967), this Court formulated a two-pronged analysis which the trial court must use in determining whether to grant a new trial. The Court articulated the aspects of the first prong as follows:

The rule that where there is any competent evidence, though conflicting, to sustain the verdict, the verdict will not be set aside has no application to a trial court in passing upon a motion for a new trial. Grimm v. Harper, 84 Idaho 220, 370 P.2d 197; Coast Transport v. Stone, 79 Idaho 257, 313 P.2d 1073. See also Warren v. Eshelman, 88 Idaho 496, 401 P.2d 539. Rather the discretion with which the trial judge is entrusted is a sound legal or judicial discretion, and the trial court may grant a new trial when it is satisfied the verdict is not supported by, or is contrary to, the evidence, or is convinced the verdict is not in accord with the clear weight of the evidence and that the ends of justice would be subserved by vacating it, or when the verdict is not in accord with either law or justice. (Citations omitted). Id. 91 Idaho at 670-671, 429 P.2d at 402-03.

The first prong directs the trial judge to consider whether the verdict was against the weight of the evidence and if the ends of justice would be served by vacating the verdict. In Quick, supra, this Court noted that "the judge is free to weigh the conflicting evidence for himself." 111 Idaho at 767, 727 P.2d at 1194. The Court further emphasized the role the trial judge plays in preventing a miscarriage of justice:

The trial judge is not required to view the evidence in a light most favorable to the verdict-winner. Although the mere fact that the evidence is in conflict is not enough to set aside the verdict and grant a new trial, when a motion for new trial is based on the ground that the verdict is against the weight of the evidence, the judge is free to weigh the conflicting evidence for himself. In fact, as Wright & Miller note in their treatise discussing the similar Federal Rule of...