DeBurkarte v. Louvar

WOLLE, Justice

(concurring specially).

I agree with the bottom line of the majority opinion but would affirm via a much less tortuous path. I have no quarrel with the majority opinion’s disposition of most of the issues raised by defendant: Doctor Rosman was plainly qualified as a medical expert and provided admissible expert testimony; that expert testimony itself furnished the necessary factual support for the jury’s finding of medical malpractice; and the damages recovered by the two plaintiffs were not excessive when we consider that the jury could reasonably have found the defendant’s negligence will have cut short Elaine’s life on earth and Donald’s life with his wife. I also agree that Donald’s claim for loss of consortium could properly be predicated on the injury Elaine has received — a shortened yet painridden life — which directly disrupts their married life together.

I take serious issue, however, with the unnecessary dictum in the majority’s treatment of the issues of proximate cause and damages. We ought not in this case discuss or predict what we may someday decide on the question whether a patient may maintain an action for the loss of a not-better-than-even chance of survival. That question was not controverted at trial, it was not embraced within the issues submitted to the jury, and it therefore is not properly before us.

The jury instructions in this case presented remarkably plain and ordinary questions for the jury to resolve. This was a straightforward medical malpractice action; plaintiffs were required to prove that defendant was negligent, that the negligence was a proximate cause of damage, and that plaintiffs sustained measurable damages. Defendant did not object to the wording of those instructions. The jury’s verdict was supported by substantial evidence. That should end our inquiry.

I. Negligence.

The most striking difference between this case and previous medical malpractice actions our court has addressed is that the trial court incorporated in its jury instructions the black-letter rule contained in section 323 of the Restatement (Second) of Torts (1965). Section 323 provides that a person who renders services to protect an *141 other, for example the doctor treating a patient, is liable for physical harm resulting from failure to exercise reasonable care if the failure “increases the risk of such harm.” Although the majority opinion quotes that Restatement section in its discussion of causation, section 323 is not a proximate cause principle but instead is a standard of conduct for reasonable persons. See Restatement (Second) Torts §§ 285-328 (explaining how standards of conduct are determined, then identifying and collecting those standards which define duties of reasonable persons). The trial court correctly included Restatement section 323 in its instructions governing primary negligence of the defendant.

Defendant’s only objection to that jury instruction was that the court should also have included in its jury charge his proposed instruction derived from section 432(1) of the Restatement (Second) of Torts. The majority opinion correctly points out that there was no merit whatsoever to that objection. The two Restatement principles are not even closely related. Section 432(1) of the Restatement pertains not to primary negligence but instead to causation.

The jury’s finding that defendant was negligent was based on correct instructions on the law and was supported by substantial evidence in the record. Doctor Rosman testified that defendant had failed to diagnose and treat the malignant tumor in Elaine DeBurkarte’s breast with a reasonable degree of care and skill.

II. Proximate came.

On the critical issue of proximate cause, it is my view that the negligence theory of lost-chance need not be discussed and should certainly not be the theory on which this appeal is affirmed. The trial court’s charge to the jury on causation included two Iowa uniform jury instructions on the subject, instruction 2.6 (proximate cause) and 2.7B (concurring proximate cause). Defendant did not object to those instructions.

Although defendant moved for a directed verdict contending no damages were proximately caused by his alleged negligence, there was no merit whatsoever in that motion. The testimony of Dr. Rosman, standing alone, generated a jury issue on proximate cause under traditional theories of legal causation set forth in the trial court’s instructions to the jury. We must view that testimony in the light most favorable to the jury verdict. Iowa R.App.P. 14(f)(1). Doctor Rosman testified:

Q. Assuming, Dr. Rosman, that Mrs. DeBurkarte had proper diagnosis, assuming that she had a mass in August and that mass is the same mass that she followed in her breast for some months and which was eventually biopsied and removed in June of 1982, but assume that that mass had been removed in August or September of 1981, at the earliest time that she had detected, do you have an opinion based upon a reasonable degree of medical certainty as to what her chances would have been for survival at that time?

A. Yes, I do.

Q. And tell the Jury what the opinion is? ... A. My opinion, based on reasonable medical certainty, is that her chances would have been at least 50-50, and according to the literature, as I have said on stage one, her chances would be as high as 80 percent.

Q. What are her chances now? A. Zero.

From that testimony the jury could reasonably conclude that defendant’s failure to detect and excise the malignant tumor probably shortened Elaine DeBurkarte’s life and damaged her in a measurable way. See Speed v. State, 240 N.W.2d 901, 904 , (Iowa 1976); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 384 , 101 N.W.2d 167, 172 (1960). We must keep in mind our cardinal rule that questions of proximate cause are generally for the jury and may *142 be decided as matters of law only in exceptional cases. Iowa R.Civ.P. 14(f)(10).

Defendant’s assignment of error on the issue of proximate cause is entirely without merit because the verdict was supported by substantial evidence and consistent with jury instructions which defendant did not protest.

III. Damages.

The trial court relied heavily on Iowa uniform jury instructions in instructing the jury on the matters it could properly consider in determining what damages, if any, the plaintiff Elaine had sustained. See I Iowa Uniform Jury Instructions, Instruction Nos. 3.1, 3.9. The trial court submitted only three elements of damage for the jury’s consideration: (1) past unreim-bursed medical expenses; (2) future medical expenses; and (3) pain and suffering. The trial court's instruction concerning pain and suffering elaborated on that element as follows:

The pain and suffering which the law allows is not confined to physical pain. It includes as well the mental anguish, the sense of loss and burden, the loss of enjoyment of life suffered by a person who is materially disabled.

Defendant did not specifically object to any of those damage elements. Defendant’s challenge to the damages part of the jury charge was his general assertion that the evidence was insufficient to establish that any damages had been proximately caused by defendant’s negligence. The only other record defendant made concerning submission of those damage elements was his motion for directed verdict, but that motion merely urged that no damages had been shown to have been proximately caused by defendant’s negligence, and it did not distinguish between the three separate elements submitted to the jury. The general objection to the damage instruction and the motion for directed verdict thus focused on the question of causation, not any particular damage element. The motion and objection were without merit because they ignored the testimony of Dr. Rosman which itself generated a jury issue under traditional theories of legal causation as to all three of those damage elements.

The suggestion of a “lost chance” theory crept into this case primarily by reason of the wording of item B in the trial court’s marshaling instruction. The material portion of that instruction was as follows:

To entitle the Plaintiffs to recover, the burden is upon them to establish by a preponderance of the evidence all of the following propositions:

A. That the defendant was negligent in some particular as charged by the Plaintiffs.

B. That such negligence was a proximate cause depriving Elaine DeBurkarte of the opportunity to receive early treatment and a chance at realizing any resulting gain in her life expectancy and physical and mental comfort.

C. That the Plaintiffs have sustained damage and the extent thereof.

When the instructions are considered as a whole, however, it is clear that item B has significance only to the extent that it reinforced the standard proximate cause instructions which the trial court included in its charge to the jury. Item B did not direct nor suggest to the jury that it was to place a percentage on any so-called lost chance or lost opportunity for treatment. Item B merely required plaintiff Elaine De-Burkarte to establish that defendant’s negligence “was a proximate cause depriving” (which is to say probably deprived) her of early treatment and the “gain in her life expectancy and physical and mental comfort” that such treatment would have produced. She therefore had to prove that she probably lost that “chance” (the chance being that favorable happening that did not occur). The charge to the jury in this case, including the marshaling instruction, did not allow the plaintiff to recover on a lesser showing — for example, that there was one chance in four that she had lost the chance to survive the cancer for an additional ten years. The issue of lost chance addressed in the majority opinion’s discus *143 sion of proximate cause was really never in this case.

Defendant’s contention that the awards of damages to both plaintiffs were excessive gives us pause. But these were certainly major injuries. Dr. Rosman’s testimony would support a finding that defendant’s negligence probably deprived her of treatment that would have extended her life by ten years. The effect of that loss would be devastating to Elaine and her husband. It was clearly for the jury to decide under these unchallenged instructions what damage amount would fairly compensate Elaine for the resulting pain, disability, and mental anguish, and what amount Donald should receive for loss of consortium. We emphasize, as does the majority opinion, that defendant did not protest evidence that plaintiff Elaine De-Burkarte had sustained mental anguish, and the instruction on pain and suffering contained that element of damages and the element of “future disability” without objection from defendant. This record gives us no basis for overturning the jury’s determination of the amount each plaintiff should receive as fair compensation for those damages.

In short, I would affirm the judgment of the trial court by applying well-established principles of law, such as those by which the trial court instructed this jury. I am troubled that the majority opinion gropes with unsettled and unsettling theories of tort recovery which we have not previously adopted and need not here address.

McGIVERIN and CARTER, JJ., join this special concurrence.