Vassos v. Roussalis

• Decision Date: 17 February 1983
• Docket Number: No. 5751,5751
• Parties: Nora V. VASSOS, Administratrix and Personal Representative of the Estate of Gus Vassos, deceased, Appellant (Plaintiff), v. Louis J. ROUSSALIS, M.D., Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1284

658 P.2d 1284

Nora V. VASSOS, Administratrix and Personal Representative of the Estate of Gus Vassos, deceased, Appellant (Plaintiff), v. Louis J. ROUSSALIS, M.D., Appellee (Defendant).

No. 5751.

Supreme Court of Wyoming.

Feb. 17, 1983.

Terry W. Mackey (argued), Cheyenne, and John Hursh, Riverton, for appellant.

J.E. Vlastos, Casper, for appellee.

Before ROONEY ^*, C.J., and RAPER, THOMAS, ROSE ^**, and BROWN, JJ.

RAPER, Justice.

This matter began when Nora Vassos (appellant), as personal representative, filed an action in the district court for the wrongful death of her husband, Gus Vassos, alleging that his death was caused by medical malpractice on the part of Dr. Louis J. Roussalis (appellee) and Dr. John Corbett. This is the second time this matter has been before this court on appeal. ¹ In the first appeal, a summary judgment that had been entered against appellant was reversed and the case remanded to the district court for further proceedings. Vassos v. Roussalis, Wyo., 625 P.2d 768 (1981). On remand, a jury trial was begun in the district court. This appeal is from the district court's entry of a directed verdict for appellee at the close of appellant's case in chief. The single issue appellant raises for our consideration is whether the district court erred in granting appellee's motion for a directed verdict.

We will reverse and remand.

At this point we set out certain events that led to the filing of this malpractice action. We reserve discussion of the facts that deal with the substance of the claim until later, i.e., negligence, causation, etc. On June 7, 1976, Gus Vassos suffered stomach pains causing him to leave work early. His stomach discomfort worsened to the point that, later that same day, he went to the emergency room at Natrona County Memorial Hospital. At the emergency room, Mr. Vassos was examined and admitted to the hospital by Dr. Ellbogen who was on call for Mr. Vassos' regular physician, appellee. At that time Mr. Vassos' condition was diagnosed as "acute gastritis," and routine laboratory tests were ordered.

On June 8, appellee began treating Mr. Vassos for pain in the upper right quadrant of his abdomen. Appellee initially diagnosed Mr. Vassos' condition as "probable acute G.B. [gallbladder] disease," and at that time ordered various tests including x-rays. On June 9, more x-ray tests were conducted and appellee continued to diagnose Mr. Vassos' condition as probable acute gallbladder disease and treated him accordingly. On that day appellee initially contacted Dr. Corbett and requested that Dr. Corbett, a general surgeon, consult on the case. On June 10, Dr. Corbett examined Mr. Vassos and, after further x-ray tests indicated a subphrenic and subhepatic abscess, recommended immediate surgery. Dr. Corbett's preoperative diagnosis was that Mr. Vassos was suffering from "[p]robable necrotizing cholecystitis with rupture. Possible ruptured appendix. Possible ruptured ulcer." Exploratory surgery was performed in the evening of June 10 by Dr. Corbett. Dr. Corbett discovered Mr. Vassos had a ruptured appendix with diffuse peritonitis.

From June 10, 1976, until his death on August 16, 1976, Mr. Vassos was hospitalized in Natrona County Memorial Hospital. He was treated by his surgeon, Dr. Corbett, and his own family physician, appellee. After his surgery, and until his death, Mr. Vassos continued to suffer from the aftereffects of his ruptured appendix, i.e., infection and its complications. Mr. Vassos suffered a cardiac arrest on July 22, 1976, and from then, until he was declared dead on the 16th of August, he was maintained on a respirator. Dr. Corbett indicated at trial that for all intents and purposes Mr. Vassos was dead from the time of his cardiac arrest. On Mr. Vassos' death certificate, Dr. Corbett indicated the cause of death to be myocardial failure due to and as a consequence of generalized sepsis and peritonitis which was caused by a ruptured appendix.

The directed verdict was entered by the district court in response to appellee's motion made pursuant to Rule 50(a), W.R.C.P. ² Since questions of law are for courts to determine and questions of fact are for juries, the purpose of Rule 50, W.R.C.P., is to provide a device of judicial control so that courts may enforce rules of law. Carey v. Jackson, Wyo., 603 P.2d 868 (1979). In commenting on the purpose of Rule 50, F.R.C.P., which is identical to our Rule 50, W.R.C.P., it has been said:

"Rule 50(a) provides for a motion for a directed verdict at the close of the plaintiff's evidence or at the close of the evidence and before the case is submitted to the jury. It enables the court to determine whether there is any question of fact to be submitted to the jury and whether any verdict other than the one directed would be erroneous as a matter of law. It is conceived as a device to save the time and trouble involved in a lengthy jury determination. Rule 50(b) allows the court to reserve the decision of this question of law until after the case has been submitted to the jury and they have reached their verdict or disagreed. If the court decides that a verdict should have been directed it may set aside the verdict of the jury and enter a judgment notwithstanding the verdict. Thus it gives the trial court a last chance to order the judgment that the law requires. * * *" (Footnotes omitted.) 9 Wright & Miller, Federal Practice and Procedure: Civil § 2521.

In reviewing the district court's decision to grant a directed verdict for appellee (defendant) at the close of appellant's (plaintiff's) case in chief, we will consider all of the evidence favorable to the party against whom the motion is directed (appellant) together with all reasonable and legitimate inferences which may be drawn therefrom. Carey v. Jackson, supra; Town of Jackson v. Shaw, Wyo., 569 P.2d 1246 (1977). When determining the question of sufficiency of the evidence on a motion for a directed verdict, we must, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, determine whether there can be but one conclusion as to the verdict that reasonable jurors could have reached. Carey v. Jackson, supra; Town of Jackson v. Shaw, supra; Barnes v. Fernandez, Wyo., 526 P.2d 983 (1974). Credibility of the witnesses and the weight given their testimony are for the jury to determine. Kahler v. Martin, Wyo., 570 P.2d 720 (1977); Cimoli v. Greyhound Corp., Wyo., 372 P.2d 170 (1962). Whether or not appellant's evidence, viewed in the light most favorable to her, is sufficient to create an issue for the jury to consider is solely a question of law to be answered by the trial court. Town of Jackson v. Shaw, supra.

Although some appellate courts have taken the view that they will not superimpose their judgment on that of the trial court in reviewing a directed verdict, we do not hold such a view. In Carey v. Jackson, supra at 877, this court set out the view that on review of a directed verdict no deference will be given to the view of the trial court.

" 'In determining whether a verdict should have been directed, the appellate court applies the same standard as does the trial court in passing on the motion originally. * * * Whether a verdict should be directed is a question of law and on those questions litigants are entitled to full review by the appellate court without special deference to the views of the trial court.' 9 Wright and Miller, Federal Practice and Procedure, Civil, § 2536, p. 595, and § 2524, pp. 541-542."

This court also takes the view that motions for directed verdicts should be cautiously and sparingly granted. Carey v. Jackson, supra. We note that in questionable cases Rule 50, W.R.C.P., provides options other than simply granting a motion for directed verdict at the close of plaintiff's case. Among other things, rather than direct a verdict as was done here, the trial court can reserve judgment until the close of all evidence or entertain, after a verdict has been rendered, a motion for a judgment notwithstanding the verdict. It has been stated that:

"Even at the close of all the evidence it may be desirable to refrain from directing a verdict though it would be possible to do so. If a verdict is directed and the appellate court holds that the evidence was in fact sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is greatly expedited. If the jury agrees with the court's appraisal of the evidence, and returns a verdict for the party who moved for a directed verdict, the case is at an end. If the jury brings in a different verdict, the trial court can grant judgment notwithstanding the verdict. Then if the appellate court holds that the trial court was in error in its appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts have repeatedly said that it is usually desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion." (Footnote omitted.) 9 Wright & Miller, Federal Practice and Procedure: Civil § 2533.

The matter before us is a medical malpractice action, and, as we noted in our first review of this matter, it is, as such, simply a particular form of a negligence action. Vassos v. Roussalis, supra, 625 P.2d at 772. As in any other negligence action, the plaintiff in a malpractice action must prove that the defendant owed a duty to the plaintiff and that the failure to perform that duty proximately caused damage to plaintiff. Id. Put another way, the law, in a malpractice action, only imposes liability for a breach of a legal duty by a doctor proximately causing injury to the plaintiff. Harris v. Grizzle, Wyo., 625 P.2d 747 (1981). The determination of the standard of care or duty...