Schlesselman v. Gouge

• Decision Date: 31 July 1967
• Docket Number: No. 21659,21659
• Citation: 431 P.2d 35,163 Colo. 312
• Parties: Marvin SCHLESSELMAN, individually, and as husband and next friend of Sarah Schlesselman, a minor, Plaintiffs in Error, v. Ruth GOUGE, Defendant in Error.
• Court: Colorado Supreme Court

Page 35

431 P.2d 35

163 Colo. 312

Marvin SCHLESSELMAN, individually, and as husband and next

friend of Sarah Schlesselman, a minor, Plaintiffs in Error, v. Ruth GOUGE, Defendant in Error.

No. 21659.

Supreme Court of Colorado, En Banc.

July 31, 1967.

Robert Leland Johnson, Denver, for plaintiffs in error.

Yegge, Hall, Treece & Evans, Denver, for defendant in error.

PRINGLE, Justice.

This is a medical malpractice suit brought by Marvin Schlesselman and his wife, Sarah Schlesselman, against Dr. Ruth Gouge. The plaintiffs in error will be referred to as the plaintiffs or as Marvin and Sarah, and the defendant in error will be referred to as the defendant.

The plaintiffs sought damages allegedly sustained by them as a result of the negligence of the defendant in diagnosing and treating Sarah. Trial was to a jury, which returned a general verdict for the defendant. The plaintiffs brought error from the judgment entered on that verdict.

The basic facts surrounding this controversy may be stated simply. Sarah, accompanied by Marvin, went to the defendant's office for a physical examination on August 28, 1961. Sarah told the defendant that she (Sarah) wanted to find out if she were pregnant. After examination, the defendant told Marvin and Sarah that Sarah was not pregnant. The defendant diagnosed Sarah's condition as menstrual irregularity, prescribed drugs for Sarah, and made another appointment for Sarah to be examined on September 26, 1961. The parties do not agree as to the reason this second appointment was not kept, but it is clear that defendant did not examine Sarah again at any time after August 28, 1961. On November 4, 1961, Sarah began having abdominal cramps. On the morning of November 5, 1961, Sarah's cramps become more severe, and she was admitted to St. Joseph's Hospital. The attending physician at the hospital, a Dr. Ina Berzins, testified that Sarah's condition on November 5, 1961 was diagnosed as an inevitable abortion. On the morning of November 6, 1961, a surgical procedure known as a dilation and curettement was performed on Sarah (by Dr. Berzins) to make sure that the process of abortion had been safely completed. Dr. Berzins testified that in her opinion Sarah was six to seven weeks pregnant at the time of her admission to the hospital; and that Sarah had recovered fully and had no permanent ill effects or disability resulting from the abortion.

The plaintiffs sought damages on the theory that the defendant negligently failed to diagnose Sarah's pregnancy, and that, as a result of this negligent and incorrect diagnosis, the defendant prescribed a drug known as 'Synthroid' which in turn caused the abortion. The plaintiffs also alleged that Sarah and Marvin each had talked to the defendant on the telephone on two occasions after the August examination, and that in each instance defendant negligently failed to instruct Sarah to come in for further examinations. The plaintiffs alleged that this negligence resulted in a failure to diagnose and treat Sarah's pregnancy, and in a failure to diagnose and treat the impending abortion at a time when it might still have been prevented.

The defendant's basic theory was that the original diagnosis that Sarah was not pregnant was correct at the time that the diagnosis was made. Defendant alleged that Sarah must have become pregnant in the middle of September of 1961--After the examination by defendant. In addition, defendant contended that the drug Synthroid could not have caused the abortion, but would actually have helped Sarah to maintain the pregnancy. Defendant also alleged that Sarah ceased using the drug about two weeks prior to the abortion, and that all of the residual effects of the drug would have worn off long before November 4, 1961. The defendant consistently denied ever having seen or talked to either of the plaintiffs after August 28, 1961.

Plaintiffs have assigned as error on this appeal almost every ruling of the trial court which was adverse to them in the course of the several days of trial. In all, there are 59 separate allegations of error (one of which has nine separate parts).

Four of the allegations of error (and parts of a fifth) are concerned with the refusal of the trial court to admit evidence, to hear testimony, or to allow argument to the jury relating to various claimed elements of damages. In view of the fact that the jury returned a verdict in favor of the defendant as to the basic issue of liability, these allegations of error are now moot and deserve no further consideration. Schell v. Kullhem, 127 Colo. 555, 259 P.2d 861.

Nine of the allegations of error relate to alleged misconduct on the part of the defendant's counsel in his closing argument to the jury. Four of these relate to alleged misconduct to which no objection was made at trial and which consequently are not properly before this Court. Spears Free Clinic & Hospital For Poor Children v. Maier, 128 Colo. 263, 261 P.2d 489. We find no merit in the other five allegations of alleged misconduct during closing argument:

'* * * Juries in this jurisdiction are always instructed that arguments of counsel are not evidence and the jury in this case was so instructed. We are not inclined to attribute to any jury a lack of sufficient mentality or discrimination to recognize the difference between evidence and argument. * * *' Newbury v. Vogel, 151 Colo. 520, 527, 379 P.2d 811, 814.

Counsel are allowed wide latitude in making closing arguments to the jury. Defendant's counsel did not exceed the permissible bounds of argument in this case.

Five of the allegations of error (and parts of a sixth) relate to the rulings of the trial court on the instructions to the jury. Plaintiffs object to five of the instructions given by the trial court, and also object to the refusal of each of the nine instructions tendered by the plaintiffs. The record shows that the instructions given by the trial court, when taken as a whole, correctly state the law as applied to the facts of this case, and that the instructions tendered by the plaintiffs were either incorrect, repetitive, irrelevant, or related only to questions of damages which we held above were now moot in view of the general verdict for the defendant. See generally, Dixon v. Norberg, 113 Colo. 352, 157 P.2d 131; Brown v. Hughes, 94 Colo. 295, 30 P.2d 259; Locke v. Van Wyke, 91 Colo. 14, 11 P.2d 563; Daly v. Lininger, 87 Colo. 401, 288 P. 633. The trial court did not commit error in the instructions given to the jury, and did not commit error in refusing the tendered instructions.

Thirty-six of the remaining forty allegations of error relate to rulings of the trial court on the admission of testimony, the admission of exhibits, and various rulings concerning actions of counsel during the course of the trial. We have examined each of these 36 allegations of error, and we find that 22 of them have absolutely no merit. In these 22 allegations of error, plaintiffs have assigned as error many discretionary rulings of the trial court. It is apparent that during the course of the trial counsel for plaintiffs asked numerous questions which were repetitious, argumentative, leading, harassing, or which were asked in improper form. Numerous questions were also asked which sought...