Cook v. SUNRISE HOSPITAL & MEDICAL CENTER, LLC
Cook v. SUNRISE HOSPITAL & MEDICAL CENTER, LLC
Opinion of the Court
By the Court,
These appeals center on a “mere happening” jury instruction— an instruction asserting that the mere happening of an accident is, by itself, an insufficient basis for liability — given by the district court in a medical malpractice action. Initially, we must determine whether appellants preserved for our review their objection to respondent’s proposed jury instruction. We conclude that appellants’ objection to the jury instruction was sufficient to preserve the claimed error for our review because the objection placed the district court on notice that the instruction’s language required further review.
Next, we address whether the “mere happening” instruction given by the district court misstated the law, and if the instruction was in fact erroneous, whether appellants have proven that the inaccurate instruction was prejudicial rather than harmless error. The jury instruction given by the district court in this matter set forth that “the mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant is negligent.” This instruction misstated Nevada law because the instruction failed to inform the jury that it could consider all of the circumstances leading to the plaintiff’s injury as possible evidence of the defendant’s negligence, and thus, the instruction may have confused or misled the jury to its verdict. Given this conclusion, we also must consider whether appellants have proven that the inaccurate instruction was prejudicial rather than harmless error. After reviewing the evidence, we conclude that prejudice was shown because, but for the mistake in instructing the jury, it is probable that a different result may have been reached as the case was close and appellants introduced evidence that could support a finding of negligence against respondent.
Because the given jury instruction misstated the law, which could have confused or misled the jury, and appellants have met their burden of showing prejudice, we reverse the district court’s judgment and remand this matter to the district court for a new
FACTS AND PROCEDURAL HISTORY
In January 2000, appellant Linda Cook underwent back surgery at Sunrise Hospital. Dr. Mark B. Kabins, who was assisted by Dr. John A. Ameriks, a neurovascular surgeon, performed the surgery. During the surgery a blood clot formed in Mrs. Cook’s left leg, and complications related to the blood clot arose, ultimately leading to the amputation of Mrs. Cook’s lower left leg. She and her husband, Frank Cook, filed a medical malpractice action against respondent Sunrise Hospital and Dr. Ameriks, asserting that their negligence in identifying and treating the complications that arose during and after surgery caused the loss of Mrs. Cook’s leg.
The case ultimately proceeded to a jury trial. After Sunrise rested its case, the district court held a hearing to settle the jury instructions. At the hearing, Sunrise proffered an instruction that stated, in relevant part, “The mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant was negligent.” The Cooks objected to the instruction, arguing that because they presented evidence of Sunrise’s negligence, this case’s facts did not warrant the so-called mere happening instruction — an instruction based on this court’s statement in Gunlock v. New Frontier Hotel
In response to the Cooks’ objections, Sunrise’s counsel asserted that the instruction was proper because, as the Cooks’ opening ar
Following these arguments, the district court concluded that the jury instruction was a correct statement of the law. Again, the Cooks’ counsel objected stating that the proposed instruction was not an accurate Gunlock instruction.
The jury returned a quotient verdict, six to two, in favor of Sunrise, upon which the district court entered judgment and later awarded costs. These consolidated appeals followed.
DISCUSSION
The Cooks ’ objection to the proposed instruction
As an initial matter, Sunrise contends that, on appeal, the Cooks have waived their challenge to the jury instruction because a proper objection to the jury instruction was not raised in the district court. The Cooks assert that their objection sufficiently preserved the issue for our review because their counsel’s statement that the proffered language was not “an appropriate [Gunlock] instruction” put the district court on notice that Sunrise’s language should have been reviewed further.
With regard to the proper manner of objecting to a proposed jury instruction so that the challenge is preserved for appellate review, NRCP 51(c) provides that a party objecting to an instruction, or the failure to give an instruction, must “distinctly” state the matter objected to and the grounds for the objection. Objections are sufficient when they serve NRCP 51(c)’s purpose to give the trial court the opportunity to correct the potential error by focusing the court’s attention on the alleged error.
In this case, at the hearing to settle the jury instruction, the Cooks objected to Sunrise’s proposed instruction because it was not a proper “mere happening” instruction under this court’s 1962 opinion, Gunlock v. New Frontier Hotel.
Sunrise’s argument that the Cooks’ objection was not adequately preserved because they were required to specifically state to the district court the exact language that should have been added is unpersuasive, since under NRCP 51(c), the Cooks’ objection needed only to focus the district court’s attention on the alleged error, which it did. Accordingly, the Cooks’ objection to giving the “mere happening” instruction was properly preserved for appeal.
Having concluded that the Cooks properly preserved the jury instruction issue for our review, we next consider whether the proffered instruction was a misstatement of the law. We review de novo the claimed error that a proffered instruction is an incorrect statement of the law.
Here, the Cooks’ theory of liability against Sunrise rested on Sunrise’s alleged negligence in failing to provide adequate equipment, as requested by Mrs. Cook’s treating doctors, and its staff’s failure to follow doctors’ orders, which ultimately resulted in the loss of Mrs. Cook’s leg.
As stated, the district court instructed the jury that “the mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant is negligent.” As also stated, in Gunlock, this court reiterated negligence principles that have later been utilized in a “mere happening” instruction:
The mere fact that there was an accident or other event and someone was injured is not of itself sufficient to predicate liability. Negligence is never presumed but must be established by substantial evidence.10
Relying on Gunlock, this court in Carver v. El-Sabawi
The Cooks assert that the instruction given in their case is similar to the instruction given in Green v. Castronova,
In Fjerstad v. Knutson, the South Dakota decision upon which the “mere happening” instruction given below was based, the instruction provided, in part, that ‘ ‘the mere fact that an unfortunate or bad condition resulted to the decedent . . . does not prove or
Prejudicial error established
Notwithstanding the incorrect statement of law in the jury instruction in this case, reversal of the district court’s judgment is not warranted unless the error was prejudicial.
In Driscoll v. Erreguible,
In this appeal, the Cooks cite specific expert testimony that they contend shows that they were prejudiced by the improper instruction. For example, they presented expert testimony that Sunrise was negligent because it failed to make available a fluoroscopy machine, also called a “C-arm,” with vascular imaging software. According to the Cooks, this failure to provide the requested imaging equipment increased the time Mrs. Cook’s vessels were without oxygen. Additionally, Mrs. Cook’s medical records indicate, and Dr. Ameriks testified, that he also encountered problems with obtaining images of Mrs. Cook’s lower limb due to the C-arm’s inability to navigate around the operating table’s center post. Without these additional images, Dr. Ameriks testified that he could not visualize the necessary vessels to determine whether there were additional blood clots. According to Dr. Ameriks and the Cooks’ expert, Dr. Bruce Hirschfeld, this failure to provide adequate equipment severely hampered Dr. Ameriks’ ability to treat the loss of blood flow and delayed the treatment of Mrs. Cook’s leg.
Sunrise’s experts, however, testified that a plain x-ray film was sufficient to obtain the additional images needed by Dr. Ameriks. Those experts also testified that there were other options available to Dr. Ameriks to get around the table’s center post, if Dr. Ameriks was truly concerned with obtaining additional images.
The Cooks also presented expert testimony that Dr. Ameriks’ decision to close Mrs. Cook’s wound sites and monitor her condition was reasonable. In particular, based on Mrs. Cook’s small ves
Yet, Dr. Robert Wagmeister, a vascular surgeon who also testified on behalf of Sunrise, concluded that Dr. Ameriks’ decision to close the wound sites fell below the standard of care. Specifically, Dr. Wagmeister testified that Dr. Ameriks should have performed further exploration to determine why there were no pulses in Mrs. Cook’s lower limb before he closed. Additionally, Dr. Wagmeister testified that the absence of Doppler signals
Additionally, the Cooks introduced testimony that despite a request and a subsequent assurance by a Sunrise nurse that an angiography suite would be made available, Sunrise’s employees failed to make the suite available. Likewise, Dr. Ameriks testified and Mrs. Cook’s medical records showed that despite a second request for the angiography suite, Sunrise’s staff informed Mrs. Cook’s surgeons that the angiography suite was unavailable. Vickie Gooss, Director of Imaging at Sunrise, testified, however, that there were no procedures being conducted in the angiography suite at the time that the surgeons had requested it. And she testified that if a nurse had been told that it was available, but then informed the surgeons that it was not, that was incorrect. According to the Cooks, this failure contributed to the loss of Mrs. Cook’s limb because Dr. Ameriks testified that he would not have closed Mrs. Cook’s wound sites if he had known that the angiography suite was not going to be available for further diagnostic imaging.
Further, the Cooks presented evidence that had the angiography suite been available it would have taken the angiography team between a half hour to one hour to image Mrs. Cook’s limb, thereby providing Dr. Ameriks with a specific diagnosis and location of the problem. Moreover, with respect to making the angiography suite available, Sunrise’s experts conceded that if an order for the angiography suite had been made, then noncompliance with that order meant the hospital fell below the standard of care.
Sunrise’s experts, however, asserted that while in the recovery room, Mrs. Cook’s condition presented an emergency situation that
Here, the Cooks provided evidence showing that the issue of liability was close. Specifically, the Cooks presented evidence suggesting that Sunrise was negligent or at least creating a close question of fact for the jury, the jury was improperly instructed, and the jury rendered a quotient verdict, six to two.
CONCLUSION
Because the Cooks sufficiently objected to Sunrise’s proposed “mere happening” instruction by advising the court that its language did not comport with our decision in Gunlock v. New Frontier Hotel,
By the time of trial, Dr. Ameriks had settled with appellants and is not a party to this appeal.
78 Nev. 182, 185, 370 P.2d 682, 684 (1962).
See, e.g., Johnson v. Egtedar, 112 Nev. 428, 435, 915 P.2d 271, 275 (1996) (concluding that NRCP 51’s requirements were satisfied when appellant’s objection, respondent’s initial objection to the court, and a review of the record revealed that the district court was adequately apprised of the issue of
Barnes, 99 Nev. at 691 n.l, 669 P.2d at 710 n.l.
Id.; see, e.g., Tidwell v. Clarke, 84 Nev. 655, 660, 447 P.2d 493, 496 (1968) (providing that when counsel timely calls the court’s attention to the issues of law, a slight omission in compliance with NRCP 51 will not preclude appellate review); Otterbeck v. Lamb, 85 Nev. 456, 460, 456 P.2d 855, 858 (1969) (providing that in the heat of trial, counsel “cannot be expected to respond with all the legal niceties and nuances of a brief writer”).
Johnson, 112 Nev. at 434, 915 P.2d at 275.
78 Nev. 182, 370 P.2d 682 (1962).
Fjerstad v. Knutson, 271 N.W.2d 8, 14 n.9 (S.D. 1978) (giving an instruction that stated, in part, that “the mere fact that an unfortunate or bad condition resulted to the decedent. . . does not prove or even imply, that the defendants ... by virtue of that fact alone, were negligent”), overruled on other grounds by Shamburger v. Behrens, 380 N.W.2d 659 (S.D. 1986).
Way v. State, 123 Nev. 326, 330, 167 P.3d 430, 433 (2007); Dewey v. Redevelopment Agency of Reno, 119 Nev. 87, 64 P.3d 1070 (2003); Garcia v. State, 117 Nev. 124, 127, 17 P.3d 994, 996 (2001).
Gunlock, 78 Nev. at 185, 370 P.2d at 684 (emphasis added).
121 Nev. 11, 107 P.3d 1283 (2005).
Id.; see also NRS 41A.100(l)(d) (providing that standard-of-care evidence proving causation of the alleged personal injury or death is not required, and a rebuttable presumption that negligence occurred exists, when evidence is presented that the injury or death occurred during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto).
Carver, 121 Nev. at 16, 107 P.3d at 1286.
Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 664 (1998) (internal citations omitted).
223 N.E.2d 641 (Ohio Ct. App. 1966).
654 A.2d 1335 (Md. 1995).
Green, 223 N.E.2d at 648; Kennelly, 654 A.2d at 1341.
Green, 223 N.E.2d at 645.
Kennelly, 654 A.2d at 1341.
Id. at 1341; cf. Wild v. Alster, 377 F. Supp. 2d 186, 191 (D. D.C. 2005) (providing that the use of “simply” and “alone” in its “mere happening” instruction was proper because those words informed the jury that something more than the bad event was necessary to establish negligence).
271 N.W.2d 8, 14 n.9 (S.D. 1978), overruled on other grounds by Shamburger v. Behrens, 380 N.W.2d 659 (S.D. 1986).
It appears that omission of the word “alone” was an act of design by counsel for Sunrise. We admonish counsel with regard to like conduct in the future.
Mainor v. Nault, 120 Nev. 750, 768, 101 P.3d 308, 320 (2004) (providing that an erroneous jury instruction is reviewed “for prejudicial error in light of the evidence”); cf. NRCP 61 (defining harmless error as that which does not affect a party’s substantial rights).
37 Nev. 117, 138, 140 P. 519, 527 (1914).
69 Nev. 309, 250 P.2d 239 (1952).
Id. at 310, 250 P.2d at 239 (quoting Shuey v. Asbury, 55 P.2d 1160, 1161 (Cal 1936)).
Pfister, 69 Nev. 309, 250 P.2d 239; Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 667, 448 P.2d 46, 50 (1968); Driscoll v. Erreguible, 87 Nev. 97, 102, 482 P.2d 291, 294 (1971); Carver v. El-Sabawi, 121 Nev. 11, 15, 107 P.3d 1283, 1285 (2005).
Wyatt, 84 Nev. at 666-68, 448 P.2d at 49-50.
79 Nev. 356, 385 P.2d 342 (1963).
87 Nev. 97, 101, 482 P.2d 291, 294 (1971).
Id. at 101-02, 482 P.2d at 294. Although only a partial record was provided on appeal in Driscoll, a significant probability existed that a different judgment would have ensued based on the jury’s deadlocked deliberation coupled with the fact that a rapid verdict was issued following the district court’s erroneous instruction. Id.
Mainor v. Nault, 120 Nev. 750, 768, 101 P.3d 308, 320 (2004).
Carver, 121 Nev. at 14-15, 107 P.3d at 1285; Driscoll, 87 Nev. at 101-02, 482 P.2d at 294; Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 666-68, 448 P.2d 46, 49-50 (1968); Boyd v. Pernicano, 79 Nev. 356, 360, 385 P.2d 342, 344 (1963); Peterson v. Silver Peak, 37 Nev. 117, 138, 140 P. 519, 527 (1914).
Carver, 121 Nev. at 15, 107 P.3d at 1285; Driscoll, 87 Nev. at 102, 482 P.2d at 294; Wyatt, 84 Nev. at 666-67, 448 P.2d at 50.
Dr. Littooy testified that a Doppler is an ultrasound device that is used to intonate the blood vessels and if the blood cells are flowing through the vessels a sound is deflected off the cells and can be heard.
See Boyd, 79 Nev. at 359, 385 P.2d at 343 (“If there appears to be a sharp conflict in the evidence upon essential issues the error is treated as having more significance in the jury’s decisional process than if the case is a one-sided affair.”); cf. Pfister v. Shelton, 69 Nev. 309, 311, 250 P.2d 239, 240 (1952) (providing that without a record on appeal this court cannot examine the existence or degree of conflict in the evidence).
78 Nev. 182, 370 P.2d 682 (1962).
Concurring in Part
with whom Maupin and Parraguirre, JJ., agree, concurring in part and dissenting in part:
I agree with the majority that the district court improperly instructed the jury because the “mere happening” jury instruction
Although the majority suggests that there is a sharp degree of conflict in the evidence presented on appeal that presents the possibility of a different verdict if an accurate instruction had been given, in my view, the evidence does not demonstrate that it is probable that a different result might have been reached. Credibility issues were raised when bias testimony was elicited concerning Drs. Ameriks, Kabins, and Hirschfeld, which the jury weighed in its decision. From the evidence presented, the jury apparently rejected testimony regarding whether specific imaging equipment had actually been requested and whether the angiography suite had been ordered and a subsequent assurance given that it would in fact be available. Even if the imaging equipment and angiography suite truly had been ordered and made available to Mrs. Cook’s physicians, sufficient expert testimony was presented at trial to support the jury’s verdict, and substantial evidence supported that Mrs. Cook’s own medical condition contributed to her unfortunate loss. I believe that despite the district court’s incomplete instruction, the jury was properly instructed on the medical malpractice elements required to be proven by the Cooks, and the jury apparently rejected the Cooks’ evidence.
Sunrise elicited testimony from Dr. Hirschfeld that he was friends of and socialized with Dr. Kabins and had assisted Dr. Kabins in prior surgeries. Dr. Hirschfeld also testified that he had been partners with Dr. Ameriks for nine years.
The record on appeal further shows that from the evidence presented at trial, the jury could have concluded that Drs. Ameriks and Kabins lacked credibility in their account of the events surrounding Mrs. Cook’s treatment. Despite these physicians’ claim that more sophisticated imaging equipment was requested and denied, and that an order was made for the angiography suite with an assurance given that it would be prepared, Drs. Ameriks and Kabins failed to note these requests in Mrs. Cook’s hospital records. The physicians claimed that Sunrise’s policy prevented them from noting such issues in patient records, however, Drs. Ameriks and Kabins testified that their private office records also lacked any discussion of purported equipment requests even though the hospital had no control over those records. While Drs. Ameriks and Kabins have previously complained when equipment was not up to standards, according to Sunrise’s staff, no verbal or written complaints related to an alleged inability to adequately treat Mrs. Cook were brought to Sunrise’s attention by either physician. Sun
Dr. Kabins’ credibility was further questioned when it was suggested that Dr. Kabins waited until his deposition was taken to disclose the circumstances surrounding the order for the angiography suite. Following that deposition testimony, the Cooks’ attorney informed Dr. Hirschfeld, the Cooks’ expert, that Dr. Kabins had provided ‘ ‘the missing link’ ’ at his deposition.
The jury may also have concluded that Dr. Hirschfeld’s expert opinion lacked credibility. On cross-examination, Dr. Hirschfeld testified that for purposes of evaluating liability, the Cooks did not provide him with a copy of Dr. Ameriks’ 2002 affidavit, Sunrise’s witnesses’ depositions, the computerized schedule for the angiography suite in question, the C-arm inventory list (which showed what equipment Sunrise had in stock and was potentially available at the time), Mrs. Cook’s deposition, and Mrs. Cook’s x-rays. Dr. Hirschfeld, however, based his expert opinion, in part, on conversations he had with Drs. Kabins and Ameriks shortly before trial.
Thus, there appears to have been credibility issues surrounding Drs. Kabins’, Ameriks’, and Hirschfeld’s testimony that were more appropriately weighed by the jury, rather than this court. Accordingly, in weighing the evidence and witnesses’ credibility, the jury apparently rejected these physicians’ testimony on these points.
I also disagree with the majority’s decision to reverse the jury’s verdict because it does not appear that the question of liability was close in this case. Even if Dr. Kabins had ordered the angiography suite during the first revascularization attempt, Sunrise’s experts testified that taking Mrs. Cook to the angiography suite first would have merely increased the time her vessels were without oxygen, thereby increasing the potential damage to her limb. It was undisputed that the therapeutic interventions capable of being performed in the angiography suite, as described by the Cooks’ expert, Dr. Hirschfeld, were not considered by Dr. Ameriks in deciding to order the angiography suite. Indeed, Dr. Ameriks testified that the only reason to move Mrs. Cook to the angiography suite was to image her limb for diagnostic purposes. And Sunrise’s experts testified that, even after completing this diagnostic exam, which was unnecessary because Dr. Ameriks knew what the problem was, Mrs. Cook still needed to go to the operating room; the only
Additional evidence relevant to the jury’s consideration of proximate cause was Mrs. Cook’s medical condition. Dr. Ameriks testified that Mrs. Cook’s small vessels and preexisting polio condition decreased the window of opportunity to revascularize Mrs. Cook’s limb and likely resulted in more permanent damage to her than to an average individual. And despite placing blame on Sunrise and its staff for Mrs. Cook’s resulting injury, Dr. Hirschfeld testified that Mrs. Cook’s medical condition also contributed to the loss of her limb. In particular, Mrs. Cook had a history of polio, smoked for years, suffered from hypertension, and had moderate to severe atherosclerosis in her lower left leg, which was revealed by a pathological examination of the amputated limb. These preexisting conditions made it difficult for the surgeons to treat Mrs. Cook’s limb.
Following the close of all the evidence and counsel’s arguments, the jury was given various instructions. Specifically, the jury was instructed to consider all the instructions as a whole and in light of the others and to draw all reasonable inferences from the evidence; it was also instructed on proximate cause and concurrent causes and the medical malpractice elements that the Cooks were required to establish. The jury was also instructed on a hospital’s standard of care. With these instructions, including the incomplete “mere happening” jury instruction, and considering the above evidence, in my view, the Cooks have not shown the probability of a different result in the absence of a more specifically worded “mere happening” instruction.
As the record shows that prejudicial error has not been established because a different result might not have been reached even if the district court had modified the instruction at issue to include the word “alone,” and the jury was otherwise properly instructed, I would affirm the district court’s judgment entered upon the jury’s verdict.
See Barrett v. Baird, 111 Nev. 1496, 1503, 908 P.2d 689, 694 (1995) (providing that jurors are free to reject or accept an expert’s opinion), overruled on other grounds by Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008).
Cf. El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 212, 484 P.2d 1089, 1091 (1971) (providing that although the district court’s comment on counsel’s closing argument was an incomplete statement of the law, reversal was not warranted when the jury was also instructed on proximate cause and told to consider all the jury instructions together); see also Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 667, 448 P.2d 46, 50 (1968) (providing that there is a “presumption of integrity of verdicts in civil cases”).
Reference
- Full Case Name
- LINDA F. COOK and FRANK COOK, Individually and as Husband and Wife, Appellants, v. SUNRISE HOSPITAL AND MEDICAL CENTER, LLC, Respondent; LINDA F. COOK and FRANK COOK, Individually and as Husband and Wife, Appellants, v. SUNRISE HOSPITAL AND MEDICAL CENTER, LLC, Respondent
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- 34 cases
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- Published