Rudolph v. Iowa Methodist Medical Center

Decision Date18 June 1980
Docket NumberNo. 64212,64212
Citation293 N.W.2d 550
PartiesWilliam RUDOLPH and Rosellyn Rudolph, Appellees, v. IOWA METHODIST MEDICAL CENTER, an Iowa Corporation, Appellant.
CourtIowa Supreme Court

James A. Lorentzen and Robin L. Hermann of Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for appellant.

Dwight W. James and Barbara G. Barrett of Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellees.

Considered en banc.

McCORMICK, Justice.

This appeal presents a number of issues which arose during the trial of a hospital malpractice action. The trial resulted in judgments for plaintiff William Rudolph of $553,725.88 and for plaintiff Rosellyn Rudolph, his wife, of $30,000. Defendant Iowa Methodist Medical Center filed unsuccessful post-trial motions and then appealed. Plaintiffs moved to dismiss the appeal on jurisdictional grounds. On the merits, defendant contends the trial court erred in four principal respects. Included are issues of first impression involving the right of jurors to ask questions of witnesses and the constitutionality of § 147.136, The Code, the statute which abolished the collateral source rule in medical malpractice cases. We overrule the motion to dismiss, uphold the court's ruling permitting a juror to submit questions for a witness, hold the trial court erred in declaring the statute unconstitutional, remit the judgment for William accordingly, reject defendant's other assignments of error, and otherwise affirm the judgments.

William Rudolph underwent an anterior cervical fusion in defendant Iowa Methodist Medical Center on November 17, 1975. The surgery was performed by neurosurgeon Robert Hayne. Viewed in its light most favorable to the judgment, the evidence showed that hospital employees permitted William's head to drop sharply backward while transferring him from a hospital cart to his bed after the surgery. The incident was not immediately reported to Dr. Hayne. In the next several hours, William became partially paralyzed. When Dr. Hayne was finally notified, he obtained a myelogram in an effort to find the site of the problem. Shortly thereafter he reopened and examined the surgical site and then performed a decompression laminectomy to alleviate swelling and pressure on William's spinal cord. William remained in intensive care for eight days and was subsequently transferred to the hospital's rehabilitation unit where he remained for almost three months. Although he made a good recovery, he suffered some permanent disability.

The jury could find, as it did, that the hospital employees' negligence in permitting William's head to drop after surgery was the proximate cause of the paralysis on November 17 and the subsequent surgery, treatment, disability, and other damages. The sufficiency of evidence on the issue of liability is not challenged.

The issues which defendant has raised are whether the trial court erred in various respects in relation to the jury during trial, in allowing recovery to William for damages paid by collateral sources, in refusing to order a new trial based on excessiveness of William's verdict, and in instructing the jury on Rosellyn's loss of consortium claim.

Before reaching those issues, we must address plaintiffs' motion to dismiss the appeal.

I. The motion to dismiss. After the court's rulings on the parties' objections to the final draft of instructions, but before the jury was instructed, defense counsel moved orally for an extension of time of thirty days after verdict within which to file post-trial motions. Plaintiffs' counsel refused to join the motion but voiced no objection, saying, "I don't think I'd agree to that without talking to my client but if the court wants to rule on it, that's fine." The court sustained the motion.

Twenty-eight days after suffering the adverse verdicts, defendant filed alternative motions for judgment notwithstanding the verdicts and for new trial. Plaintiffs moved to strike the motions on the ground that the order extending time for them was invalid because the motion for the extension was premature and was granted without a showing of good cause.

The validity of the order extending the time for filing post-trial motions is crucial because if it was invalid the notice of appeal was untimely, having been filed more than thirty days after judgment although within thirty days of the ruling on the post-trial motions. See Iowa R.App.P. 5; Hogan v. Chesterman, 279 N.W.2d 12 (Iowa 1979). If the notice of appeal was too late, we lack subject matter jurisdiction of the appeal.

Iowa R.Civ.P. 247 provides in relevant part that post-trial motions "must be filed within ten days after the verdict . . . is filed, . . . unless the court, for good cause shown and not ex parte, grants an additional time not to exceed thirty days." In overruling the motion to strike, the trial court held that the motion was not premature and that good cause existed because a local rule barred counsel from contacting jurors until the end of their four-week period of service, in this case precluding contact with them for three weeks after the verdict was rendered. The local rule would hamper investigation of claims of jury misconduct which might be made in a motion for new trial.

Nothing in rule 247 prevents the motion for extension of time from being filed before the verdict. The rule specifies that post-trial motions "must be filed within ten days after the verdict, report or decision is filed," thus requiring that any extension of time for filing such motions be granted before the expiration of that period. However, while the rule establishes a deadline by which the motion for extension must be filed, it does not purport to prohibit an earlier filing. Cf. Bloom v. Arrowhead Area Education Agency, 270 N.W.2d 594, 597 (Iowa 1978) (reaching a similar conclusion under a statute requiring certain action "no later than sixty days" after a stated event). At least when no objection is made asserting a sufficient reason for requiring the motion to be made after the verdict is filed, we agree with the trial court that a motion to extend the time for filing a rule 247 motion may be made and ruled on before verdict.

Nor do we find merit in the contention that good cause for the extension was not shown. Although the mere existence of the local rule barring jury contact would not automatically constitute good cause for every extension, the record in this case shows defense counsel needed the additional time in order to have the opportunity to question jurors in an effort to gather evidence to support the motion for new trial. We hold that the trial court did not err in finding good cause for the extension.

Because the extension order was valid, the notice of appeal was timely, and we therefore overrule plaintiffs' motion to dismiss.

We now turn to the merits of defendant's appeal.

II. The trial court's handling of the jury during trial. Defendant alleges the trial court erred during trial in deviating from the requirements of Iowa R.Civ.P. 199(a) in giving its cautionary instruction, communicating ex parte with a juror, not timely notifying defense counsel of the ex parte contact, permitting a juror to submit questions to be asked of a witness, allowing plaintiffs' counsel to frame the questions differently than the juror, refusing to let defendant make its record on the juror questions before they were asked, and in overruling a motion for mistrial based on alleged jury misconduct. We will separately examine each assertion of error.

A. The admonition at the commencement of trial. The court admonished the jury at the beginning of the trial regarding its duty during separations. The admonition was less than absolute in its prohibition of conversations with others on the subject of the trial. Iowa R.Civ.P. 199(a) requires the court to advise the jury in part "that it is the duty of each juror not to converse with any other juror or person, nor suffer himself to be addressed on the subject of the trial."

We have held in criminal cases that reversal cannot be based on noncompliance with Iowa R.Crim.P. 18(7)(d), the criminal trial analogue of rule 199(a), unless timely objection is made and prejudice is shown. See State v. Pierce, 287 N.W.2d 570, 575 (Iowa 1980). Those principles apply equally under rule 199(a).

Here no objection to the court's admonition was made at the time it was given. It was not brought up until after Dr. Hayne's testimony on the third day of trial. It was then mentioned in connection with defense counsel's report of an incident in which counsel said he heard juror Daniel Possin telling two other jurors about the questions Possin had given the court to be asked of Dr. Hayne and his purpose for submitting them. Nothing in this report indicated the jurors were discussing the merits of the case, and no showing was otherwise made that any discussions of the merits occurred prior to jury deliberations.

While we disapprove the trial court's admonition to the extent it deviated from the plain terms of rule 199(a), we hold that defendant's objection was untimely and that, in any event, no prejudice was demonstrated.

B. The ex parte communication. Juror Possin contacted Judge Denato in chambers before court convened on the third day of trial, at which time Dr. Hayne was to resume his testimony. Possin asked the judge if jurors were permitted to ask questions of witnesses. Judge Denato said that if Possin had a question at the conclusion of the doctor's testimony he should write it out and the judge would deal with the matter at that time. Defendant does not dispute the nature of the conversation but contends the very fact it occurred is itself reversible error.

Defense counsel first learned of the conversation after the attorneys finished their examination of Dr. Hayne and the court told the jury that if jurors had questions they should be submitted to the judge in writing. However, defend...

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