Weese v. Schukman
| Decision Date | 15 October 1996 |
| Docket Number | 95-3065,95-3230,Nos. 95-3046,s. 95-3046 |
| Citation | 98 F.3d 542 |
| Parties | 45 Fed. R. Evid. Serv. 1075 Calvin L. WEESE, Jr., Plaintiff-Appellee, v. Jay S. SCHUKMAN, M.D., Defendant-Appellant, State of Kansas, for and on behalf of the Health Care Stabilization Fund, an agency of the State, Intervenor. Calvin L. WEESE, Jr., Plaintiff-Appellant, v. Jay S. SCHUKMAN, M.D., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael R. O'Neal, of Gilliland & Hayes, Hutchinson, KS (Matthew L. Bretz, of Gilliland & Hayes, Hutchinson, KS, with him on the briefs), for Jay S. Schukman, M.D.
Randall E. Fisher, Wichita, KS, for Calvin L. Weese, Jr.
Steven C. Day, of Woodward, Blaylock, Hernandez, Roth & Day, Wichita, KS, for Intervenor State of Kansas.
Before PORFILIO, BRORBY and EBEL, Circuit Judges.
In this medical malpractice litigation, the defendant appeals entry of a post-verdict judgment as a matter of law ("JML") in favor of the plaintiff. Plaintiff cross-appeals, claiming that the district court should have granted a new trial and challenging the constitutionality of a state statute requiring certain medical malpractice awards to be paid in installments. Plaintiff also claims that the district court should have found that the defendant committed fraud on the court. In response, the defendant asks for sanctions on the grounds that plaintiff's fraud on the court appeal is frivolous.
Having carefully considered each argument raised by each party, we affirm in part and reverse in part. Concerning defendant's appeal of the JML motion granted against him, we agree with defendant that the jury verdict should stand and therefore we REVERSE the JML judgment below and REINSTATE the jury verdict in favor of defendant. We AFFIRM the decision of the district court denying plaintiff a new trial. Because we reinstate the jury verdict in favor of defendant, effectively abrogating plaintiff's damage award, we need not address the constitutionality of the state's medical malpractice award periodic payment statute. We also AFFIRM the district court's rejection of plaintiff's fraud on the court claim. Finally, we deny defendant's request for sanctions stemming from plaintiff's appeal of the fraud on the court claim.
During an off-road four-wheeling trip in a Kansas river on November 24, 1989, Plaintiff Calvin Weese's Jeep became stuck with its tailpipe submerged in the water. Other members of Weese's party discovered Weese and his two nephews unconscious from carbon monoxide (CO) poisoning in the Jeep approximately ten to fifteen minutes later. It took about one-half hour from the time Weese was removed from the Jeep before the emergency medical service (EMS) was contacted by CB radio. It took an additional twenty minutes to carry Weese from the river bank to the location where the ambulance picked him up.
The EMS arrived at 22:01 and left the scene at 22:19. Weese arrived at the Central Kansas Medical Center ("CKMC") emergency room in Great Bend, Kansas, at 22:22, and was admitted to the emergency room at 22:35. Upon admission to the emergency room, Dr. William Von Ruden assessed Weese and ordered 100 percent oxygen, which was administered with a non-rebreather oxygen mask held in place by elastic and, when needed, by nurses physically holding the oxygen mask on Weese to ensure a tight seal.
Weese was admitted to the CKMC telemetry floor at 00:30 on November 25 under the care of Defendant Dr. Jay Schukman. Dr. Schukman ordered that the 100 percent oxygen treatment be continued. He then went to the CKMC medical library to verify that the treatment by 100 percent oxygen was the appropriate treatment for CO poisoning. There, he consulted several textbooks, including Harrison's Principle's of Internal Medicine (11th ed. 1987), a standard internal medicine textbook. Harrison's provided that in the case of CO poisoning, "[p]ure oxygen should be administered" and "hyperbaric oxygen is helpful in seriously poisoned patients." After consulting Harrison's, Dr. Schukman did not modify his decision to administer 100 percent oxygen therapy. At 3:50, oxygen was decreased to 40 percent by mask. At 8:00 the non-rebreather mask was removed and Weese was given a venturi mask at 40 percent flow. At 8:40, the venturi mask was changed to 60 percent flow rate.
On December 1, 1989, Weese was transferred from CKMC to Stormont-Vail Hospital in Topeka at the request of his wife so that he could be closer to his home. On December 3, Dr. Hollis at Wesley Medical Center in Wichita contacted Weese's treating physician at Stormont-Vail, Dr. Fitzgerald, and suggested that hyperbaric oxygen treatment might potentially benefit Weese. Weese then was transferred to Wesley, where he was given hyperbaric oxygen treatment. Weese was discharged from Wesley and admitted to Meadowbrook Hospital in Gardner, Kansas, in February 1990, where he received physical, occupational, speech, language, recreational, music, and vocational therapy. He was discharged from Meadowbrook on September 28, 1990, to return to his home and family.
Weese later brought this medical malpractice action against Dr. Schukman, alleging that he sustained neuropsychological injuries as a result of Dr. Schukman's negligent treatment. Specifically, Weese contended that Dr. Schukman breached the standard of care by failing to transfer him to Wesley Hospital for hyperbaric oxygen treatment when he was first moved to the CKMC telemetry floor. At trial, Dr. Schukman conceded that one way to meet the standard of care for CO poisoning is to provide hyperbaric oxygen treatment, which he did not do. However, Dr. Schukman and other witnesses also testified that the standard of care can be met when a doctor provides 100 percent oxygen to treat CO poisoning. The jury returned a verdict for Dr. Schukman, answering "no" to the following question: "Do you find defendant, Jay S. Schukman, M.D., was negligent in his treatment of plaintiff Calvin Weese and that his negligence caused Calvin Weese's injuries and damages?" Thereafter, the district court granted Weese's Fed. R. Civ. Pro. 50 motion for judgment as a matter of law notwithstanding the verdict. In granting the motion, the court concluded that: (1) Dr. Schukman did not meet the standard of care because he did not provide hyperbaric oxygen treatment and he did not prove that the alternative of 100 percent oxygen actually was delivered to Weese; and (2) Dr. Schukman's breach of the standard of care caused Weese's injuries because if Dr. Schukman had transferred Weese to Wesley Hospital for hyperbaric treatment within six hours of the accident, the evidence established that Weese likely would have recovered fully. The court then ordered a new trial on the sole issue of damages. The court later denied: (1) Dr. Schukman's motion for reconsideration; (2) Weese's motion for a new trial; and (3) Dr. Schukman's motion to certify for interlocutory appeal. Dr. Schukman now appeals the district court's granting of Weese's JML motion and Weese appeals the district court's refusal to grant a new trial.
Following the district court's granting of Weese's JML motion, but prior to the second trial on damages, Weese's attorneys discovered certain information which Dr. Schukman did not reveal in his pre-trial or trial testimony. Weese then moved for sanctions against Dr. Schukman on the ground that Dr. Schukman committed fraud on the court. In response, Dr. Schukman sought Rule 11 sanctions against Weese. The court denied both requests. Weese now appeals the denial of his motion for sanctions based on his claim of fraud on the court. Furthermore, Dr. Schukman requests that we grant him damages and costs incurred in defending against Weese's appeal of his fraud on the court claim on the grounds that the appeal is frivolous.
Dr. Schukman's appeal alleges that the district court erred in granting Weese's JML motion. In accordance with Fed.R.Civ.P. 50, we review a judgment as a matter of law under the same standard regardless whether the judgment is rendered before or after the jury renders its verdict, i.e., regardless whether the judgment would have been characterized as a "directed verdict" or a "JNOV" prior to the 1991 amendments to the federal rules. See FDIC v. United Pac. Ins. Co., 20 F.3d 1070, 1079 (10th Cir.1994). The standard of review of the district court's decision regarding these motions is de novo. Id. Accordingly, we apply the same standard applied by the district court. Orth v. Emerson Elec. Co., White-Rodgers Div., 980 F.2d 632, 635 (10th Cir.1992). Under this standard, we can uphold a JML order "only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party for whom the jury found; we must construe the evidence and inferences most favorably to the nonmoving party." Ralston Dev. Corp. v. United States, 937 F.2d 510, 512 (10th Cir.1991). A motion for a judgment as a matter of law is cautiously and sparingly granted and then only when the court is certain the evidence "conclusively favors one party such that reasonable men could not arrive at a contrary verdict." Western Plains Service Corp. v. Ponderosa Development Corp., 769 F.2d 654, 656 (10th Cir.1985).
The standard is particularly strict when such a ruling is made in favor of the party with the burden of proof.
When the party with the burden of proof moves for a directed verdict the evidence must be viewed from a different perspective. Rather than considering the evidence for its sufficiency to support a finding for the opposing party as is done when the party not having the burden of proof has made such a motion, the evidence is tested for its overwhelming effect. The test is a strict one, and a directed verdict for the party having the burden of proof may be granted only where he has established his case by evidence that the jury would not be at liberty...
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