Vasquez v. Markin

• Decision Date: 16 December 1986
• Docket Number: No. 6693-2-III,6693-2-III
• Citation: 731 P.2d 510,46 Wn.App. 480
• Court: Washington Court of Appeals
• Parties: Librado VASQUEZ and Enriqueta C. Vasquez, husband and wife, By and Through Librado Vasquez, personally and as guardian for the person and Estate of Enriqueta C. Vasquez, incompetent, Appellants, v. Karl E. MARKIN and Jane Doe Markin, husband and wife, Respondents.

Page 480

46 Wn.App. 480

731 P.2d 510

Librado VASQUEZ and Enriqueta C. Vasquez, husband and wife,

By and Through Librado Vasquez, personally and as guardian for the person and Estate of Enriqueta C. Vasquez, incompetent, Appellants, v. Karl E. MARKIN and Jane Doe Markin, husband and wife, Respondents.

No. 6693-2-III.

Court of Appeals of Washington,

Division 3, Panel Three.

Dec. 16, 1986.

As Amended Jan. 8, 1987.

Warren L. Dewar, Sharpe Law Firm, Seattle, Lonny R. Suko, James E. Baker, Lyon, Beaulaurier, Weigand, Suko & Gustafson, Yakima, for appellants.

Dan W. Keefe, Esther Larsen Holden, MacGillivray & Jones, P.S., Spokane, David A. Thorner, Thorner, Almon, Kennedy & Gano, P.S., Yakima, for respondents.

THOMPSON, Judge.

Librado and Enriqueta C. Vasquez appeal a jury verdict in favor of Dr. Karl E. Markin in an action for medical negligence. We affirm; thus, we need not address Dr. Markin's cross appeal.

Dr. Markin, a gynecologist, referred Mrs. Vasquez to a neurologist in February 1981 in response to her complaint of numbness and pain in her right arm, chest and neck. The neurologist informed Dr. Markin there was no objective finding of disease.

On December 21, 1981, Mrs. Vasquez, then 43 years old, consulted Dr. Markin for heavy vaginal bleeding and numbness of her right arm. At that time Dr. Markin performed a pelvic exam and removed an intrauterine device; he also noted Mrs. Vasquez had limited neck mobility. Because Mrs. Vasquez wanted to be sterilized, a laparoscopy and tubal ligation, along with a dilation and curettage, were scheduled for January 15, 1982. Mrs. Vasquez' consent to the procedures was obtained.

In preparation for the surgery, Mrs. Vasquez was given a blood test on January 11, 1982; results indicated the oxygen carrying capacity of her blood was below normal. Dr. Cynthia Sandlin, the anesthesiologist, and Dr. Markindiscussed the blood test results and determined to proceed with surgery using general anesthesia. Dr. Sandlin interviewed Mrs. Vasquez the morning of surgery and obtained her consent.

Dr. Sandlin administered the first dose of anesthesia to Mrs. Vasquez in the operating room at 7:50 a.m. When Dr. Sandlin's attempt to place an endotracheal tube in Mrs. Vasquez' throat (intubation) failed, a second dose of anesthesia was administered. A second intubation also failed. Dr. Sandlin then made two unsuccessful attempts at nasal intubation. At that point surgery was canceled. Dr. James Muhm, an internist, arrived at 8:45 a.m. in response to an emergency code call.

At 9:45 a.m. Mrs. Vasquez was transferred to the intensive care unit (ICU) with Dr. Muhm in charge. Drs. Sandlin and Markin accompanied Mrs. Vasquez to ICU; however, Dr. Markin left and started another surgery at 10:30 a.m. At 10:40 a.m. Dr. Markin was contacted in the operating room and told "Mrs. Vasquez is going to need a tracheostomy. How would you like to have this handled?" His response was: "Would you ask one of the general surgeons to attend."

At 11 a.m. Dr. Steven Elerding, a general surgeon, received a call to proceed to Valley Memorial Hospital; he performed a tracheostomy at 11:30 A.M. By then Mrs. Vasquez' brain had been deprived of oxygen for a period of time. Mrs. Vasquez suffered permanent brain damage which drastically reduced her IQ, left her partially paralyzed, blind, and with severe speech problems. Prior to trial the court determined a settlement between Mr. and Mrs. Vasquez and defendants Dr. Muhm, Dr. Sandlin, and the Valley Memorial Hospital, was reasonable. Following trial, the jury returned a verdict in favor of Dr. Markin.

The first issue is whether the court erred in refusing to grant a new trial based on unauthorized bailiff/juror communication regarding the prior settlement with Drs. Sandlin and Muhm and Yakima Valley Memorial Hospital.

Apparently, the court administrator placed the following sign on the jury room door: "This is the Jury Room for the jurors in the [sic ] Vasquez vs. Sandlin ". A list of the jurors, headed by the caption "Vasquez vs. Sandlin ", was posted inside the jury room. Following trial, two jurors stated in affidavits that when questioned as to the identity of Sandlin and the omission of Markin from the case name, the bailiff stated Sandlin and others had originally been parties but had settled. The bailiff, on the other hand, attested that when asked about the title of the case he had stated "the case had originally been given a name and number by the court clerk and ... this case name remained, until the case was finally resolved". He denied informing any juror of a settlement. The trial court refused to grant a new trial, finding the bailiff did not mention the settlement to the jury.

It is well settled that a motion for a new trial is directed to the sound discretion of the trial court. Davis v. Globe Mach. Mfg. Co., 102 Wash.2d 68, 77, 684 P.2d 692 (1984); Coats v. Lee & Eastes, Inc., 51 Wash.2d 542, 552, 320 P.2d 292 (1958); Byerly v. Madsen, 41 Wash.App. 495, 499, 704 P.2d 1236 (1985). The trial court may exercise considerable discretion in granting or denying the motion, and the reviewing court will not intervene unless there has been a manifest abuse of that discretion. Coats, 51 Wash.2d at 552, 320 P.2d 292. The test for an abuse of discretion is whether no reasonable judge would have reached the same conclusion. In re Marriage of Landry, 103 Wash.2d 807, 809-10, 699 P.2d 214 (1985); Byerly, 41 Wash.App. at 499, 704 P.2d 1236.

As in Coats, the matter comes before this court entirely upon affidavits. Coats, relying on Taylor v. Kitsap Cy. Transp. Co., 158 Wash. 404, 411, 290 P. 996 (1930), stated 51 Wash.2d at page 552, 320 P.2d 292:

"The trial court was in much better position to pass upon the weight to be given to the affidavits than are we, and, since that court declined to grant a new trial on the ground of misconduct of the jury, we cannot say that there was error in this respect."

Another judge, upon examination of these conflicting affidavits, might, in exercising his discretion, have granted a new trial. Our problem is to determine whether or not this particular judge abused his discretion in ruling on the motion.

Here, the trial judge in refusing to grant a new trial found that the bailiff did not state the other party had settled. Also, the communication happened early in the trial and not during jury deliberation. In addition, he believed the jury had other grounds to wonder why Dr. Sandlin was out of the case, based on defense strategy at trial.

The court further noted the instruction on proximate cause instructed the jury not to consider whether other parties were involved in the lawsuit or had settled if they found Dr. Markin negligent and his negligence was a proximate cause of Mrs. Vasquez' injury. Finally, the court determined in view of the testimony and instructions there was no "possibility of prejudice". Here, the judge, having presided over the trial, was in the best position to analyze and give proper weight to each affidavit. Coats, 51 Wash.2d at 553, 320 P.2d 292. His finding that the bailiff did not inform the jury of a settlement will not be disturbed by this court. Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wash.2d 469, 472, 403 P.2d 351 (1965).

However, there remains the issue of whether the jurors' affidavits allege sufficient juror misconduct to justify a new trial. Juror Elder attested: "There was some discussion by the jurors about others who may have been in the lawsuit. This discussion occurred shortly after the Bailiff's statement to us." On the other hand, Juror Haines attested the discussion occurred during deliberations.

Evidence of settlements is inadmissible, Grigsby v. Seattle, 12 Wash.App. 453, 529 P.2d 1167, review denied, 85 Wash.2d 1012 (1975); and juror statements regarding settlements may warrant a new trial. Byerly, 41 Wash.App. at 500-01, 704 P.2d 1236. In Byerly a new trial was granted because, both before and during deliberations, one of the jurors stated in the presence of other jurors that a former party to the action had settled for $100,000. However, mere speculation the jury considered or was influenced by references to settlement does not justify a new trial. Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 15 Wash.App. 356, 361-63, 549 P.2d 63 (1976), aff'd, 89 Wash.2d 72, 569 P.2d 1141 (1977). "[T]he trial court, in ruling on a motion for a new trial based on jury misconduct, may consider jurors' affidavits insofar as they state 'the facts showing misconduct, but not as showing the effect of such misconduct on the verdict'." Byerly, 41 Wash.App. at 499, 704 P.2d 1236 (quoting Gardner v. Malone, 60 Wash.2d 836, 842, 376 P.2d 651, 379 P.2d 918 (1962); Taylor, 158 Wash. at 410, 290 P. 996.

When any misconduct on the bailiff's part is discounted, it appears the jury merely speculated about possible settlements, which would not warrant a new trial. Vern J. Oja, 15 Wash.App. at 361-63, 549 P.2d 63. We hold the trial court did not abuse its discretion in denying the motion for a new trial.

The next issue is whether the court erred in instructing the jury. Mr. and Mrs. Vasquez have assigned error to many of the instructions the court gave and two of their proposed instructions the court did not give. Generally, individual instructions may not be singled out for consideration without reference to the entire set of instructions which were given. Nelson v. Mueller, 85 Wash.2d 234, 238, 533 P.2d 383 (1975). The jury is properly instructed if each party is permitted to argue its theory of the case. Nelson, at 238-39, 533 P.2d 383; Washington Natural Gas Co. v. Sea-Con Corp., 34 Wash.App. 879, 880, 665 P.2d 405 (1983).

Objection has been raised to instruction 12 as being unsupported by the evidence: The instruction was taken verbatim from RCW 7.70.060, the informed consent statute. ¹

Mr. and Mrs. Vasquez claim it was improper to give this instruction because both...