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Walker v. MaineGeneral Medical Ctr.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 46
Docket:	Ken-01-382
Argued:	January 10, 2002
Decided:	March 27, 2002




	[¶1]  Patricia Walker appeals from a judgment entered in Superior Court
(Kennebec County, Studstrup, J.) in favor of MaineGeneral Medical Center after
two jury trials.{1}  The hospital cross-appeals.  Patricia Walker argues that the
court should have awarded her over $1.2 million in damages for the death of
her husband, Ralph Walker Jr., based on the jury verdict in the first trial.  She
claims that the court erred in ordering a new trial due to jury confusion on the
issue of comparative negligence.  The new trial resulted in a verdict for the
hospital.  We affirm the judgment without reaching the cross-appeal.
	[¶2]  On June 27, 1994, Dr. Eric Omsberg performed back surgery on
Ralph Walker at MaineGeneral Medical Center, then known as Mid-Maine
Medical Center.  Ralph was discharged on June 29, with instructions from Dr.
Omsberg and the hospital to have extremely limited activity for two weeks and
to watch for and report to the hospital any indication of infection.  He was
also given a prescription for an anti-inflammatory steroid that, unbeknownst
to him, could mask signs of infection.  On July 5, the doctor's secretary
telephoned the Walker home and spoke to Patricia Walker.  Patricia reported
no problems, but according to the secretary, she stated that Ralph was not
	[¶3]  Dr. Omsberg paid the hospital to provide his answering service for
evenings and weekends.  The answering service's records indicated that it
received a call on July 10 from or regarding Ralph, reporting severe pain,
redness, and swelling.  According to Dr. Omsberg, he never received this
message, and the hospital and Dr. Omsberg contended at trial that the call
had actually been made on July 14.  Except for the putative July 10 telephone
call, Ralph and Patricia did not communicate with the hospital or Dr. Omsberg
between July 5 and July 14.
	[¶4]  On July 13, Ralph had pain and chills.  That night the surgical
wound was seeping discharge.  On the morning of July 14, Patricia telephoned
the hospital to report Ralph's symptoms.  She was told to call the doctor's
office, and in a second conversation with the hospital she was told to bring
Ralph to the hospital at 3 p.m.  At that time he was seen by Dr. Omsberg and
readmitted to the hospital with a severe infection.  It is undisputed for
purposes of this appeal that there was sufficient evidence for the jury to find
that the hospital provided negligent care after Ralph's readmission.  He died
the next morning due to ventricular fibrillation.
	[¶5]  In 1997, Patricia brought a malpractice action individually and as
personal representative of Ralph's estate, on behalf of herself and her minor
sons, against the hospital and Dr. Omsberg.  The case was first tried to a jury
in September 2000.  The verdict form was drafted by Patricia to reflect the
court's rulings at an unrecorded charging conference.  The court instructed the
jury on the defense of comparative negligence without making a distinction
between the two defendants.  The comparative negligence instruction permitted
the jury to reduce the total damages to a final amount, whereas the court's
instruction on how to complete the verdict form referred to "what reduction
there should be to the damages."  Immediately following the court's instruction
to the jury, Patricia objected to the giving of the instruction on comparative
negligence.  She gave as her basis for the objection that comparative negligence
had not been generated by the evidence and that it was foreclosed by the
testimony of one of the expert witnesses.
	[¶6]  The jury first returned an inconsistent verdict, apparently
apportioning damages between Dr. Omsberg and the hospital even though it
found the doctor not liable.  The court instructed the jury to reconsider
whether it needed to answer the apportionment question.  The jury then
returned a verdict as follows: Dr. Omsberg was negligent but his negligence was
not a proximate cause of Ralph's death; the hospital was negligent and its
negligence was a proximate cause of Ralph's death; Ralph was negligent and
his negligence was a proximate cause of his injuries; Ralph's negligence was
not greater than or equal to the hospital's; the total wrongful death damages
were $1,476,523.40; those damages were reduced to $32,000 due to comparative
negligence; and the hospital negligently caused Patricia's emotional distress,
for which her damages were $150,000.  
	[¶7]  The court and counsel were initially confused about the size of the
wrongful death verdict, and there was discussion that the verdict would need to
be adjusted to conform to the statutory damages cap.  After receiving
memoranda from the parties, however, the court entered judgment, consistent
with the jury verdict, for Dr. Omsberg and for Patricia against the hospital in
the amount of $182,000.  Patricia then moved for reconsideration, judgment as
a matter of law, additur, or a new trial on damages.  The court granted a new
trial on all issues and with all parties.  Walker v. MaineGeneral Med. Ctr., No.
CV-95-503, 2000 WL 33675688 (Me. Super. Ct. Nov. 14, 2000).  A second jury
trial took place in April and May 2001.  For purposes of this appeal, it is
undisputed that the second trial was free of error.  The second jury found no
negligence by Dr. Omsberg or the hospital, and judgment was entered
	[¶8]  Patricia contends that the court erred by instructing the jury on
comparative negligence and by failing to grant her post-trial motion for
judgment as a matter of law on the comparative negligence issue.  She
essentially asserts that the hospital's role in this case did not start until Ralph
was readmitted on July 14 and because there was no evidence that Ralph was
negligent once he was readmitted to the hospital, a comparative negligence
instruction as to the hospital was not warranted.  According to Patricia any
negligence by Ralph before the hospital readmission could only be considered
as a cause of his need for the readmission.
	[¶9]  Patricia relies on Harvey v. Mid-Coast Hospital, 36 F. Supp. 2d 32
(D. Me. 1999), for the proposition that a hospital is not entitled to a
comparative negligence instruction when the plaintiff's negligence is what
causes the need for the medical treatment.  In Harvey the court held that a
hospital could not raise a comparative negligence defense based on the conduct
of the plaintiff's decedent in attempting suicide by an overdose of drugs.  The
court noted that contributory/comparative negligence issues in medical
malpractice cases generally fall into four categories:
[1] where the plaintiff fails to follow a physician's advice and
instructions; [2] where a plaintiff delays seeking or returning for
medical attention; [3] where a plaintiff has furnished false,
incomplete, or misleading information to his . . . physician; and [4]
where a patient's negligent or intentional conduct causes the
occasion for the medical attention which is the subject of the
malpractice action.
Id. at 35 (citing Madelyn R. Orr, Comment, Defense of Patient's Contribution to
Fault in Medical Malpractice Actions, 25 Creighton L. Rev. 665, 676-90 (1992)). 
Harvey fell within the fourth category alone, on which there is no Maine
precedent.  The court surveyed other jurisdictions and found that the majority
do not allow a comparative fault defense when the patient's negligence merely
provides the occasion for the medical malpractice, and it concluded that this
Court would agree with the majority rule.  Id. at 35-37.
	[¶10]  Although we have not addressed the fourth category of cases
discussed in Harvey, we have decided cases involving the first and second
categories.  In Merrill v. Odiorne, 113 Me. 424, 425, 94 A. 753, 753 (1915), we
held that it was a patient's duty to follow the physician's reasonable
instructions and submit to reasonable treatment.  The malpractice claim of a
patient who breached the duty and whose negligence directly contributed to the
injury was barred at common law before the enactment of comparative
negligence.  We granted the doctor's motion for a new trial in Merrill because
the jury did not give due consideration to the evidence of the plaintiff's
negligence.  Id. at 425, 94 A. at 754.
	[¶11]  The rule of Merrill has been applied consistently, although it has
not barred recovery or led to a reduction of damages in any of the subsequent
reported decisions.  See Hauser v. Bhatnager, 537 A.2d 599, 601 (Me. 1988)
(jury not compelled to find plaintiff negligent because failure to keep scheduled
follow-up appointment may not have caused or contributed to injury); Crosby
v. Grandview Nursing Home, 290 A.2d 375, 381-82 (Me. 1972) (uncontested
evidence showed patient not negligent in failing to follow instructions to wear
supportive shoes after treatment of foot injury); Josselyn v. Dearborn, 143 Me.
328, 340, 62 A.2d 174, 181 (1948) (contributory negligence instruction not
generated where plaintiff followed instructions and did not mislead doctor). 
These cases indicate that the federal court correctly summarized our law when
it stated: "under Maine law a jury may limit or deny a plaintiff's recovery in a
medical malpractice action when he or she is found to have acted negligently in
the course of his or her medical treatment."  Harvey, 36 F. Supp. 2d at 37.
	[¶12]  Patricia does not contest that this is a correct statement of Maine
law, and she agrees that it was applicable in her case against Dr. Omsberg. 
Patricia, however, contends that, as far as the hospital is concerned, any
negligence by Ralph merely provided the occasion for the hospital's negligent
treatment, which under Harvey would not warrant submitting the hospital's
comparative fault defense to the jury.  
	[¶13]  Thus, the crux of Patricia's argument is her attempt to distinguish
the position of the hospital on the issue of comparative negligence from that of
Dr. Omsberg.  This, however, is a distinction she never raised during the trial. 
She did not make a motion for judgment as a matter of law at the close of the
evidence pursuant to M.R. Civ. P. 50(a).  Her general objection to the
comparative negligence instruction did not bring her present argument to the
court's attention.  
	[¶14]  When the grounds for an objection were not "stat[ed] distinctly,"
M.R. Civ. P. 51(b), our review is for obvious error.  Reno v. Townsend, 1997 ME
198, ¶ 4, 704 A.2d 309, 311; Fuller v. Cent. Me. Power Co., 598 A.2d 457, 460
(Me. 1991).  Patricia raised her argument for the first time after trial in a
motion for judgment as a matter of law, purportedly pursuant to M.R. Civ. P.
50(b).  A Rule 50(b) motion, however, is properly a renewal of the earlier
motion; failure to make a timely Rule 50(a) motion therefore waives appellate
review of the denial of the post-trial motion.  Nordic Sugar Corp. v. Me. Guar.
Auth., 447 A.2d 1239, 1241 (Me. 1982); see also 9 Moore's Federal Practice
§ 50.91[1] (3d ed. 2001); 9A Wright & Miller, Federal Practice & Procedure §
2540, at 368 (2d ed. 1995).  Patricia has waived any appellate review of the
denial of her motion for the judgment as a matter of law,{2} and we review the
court's decision to give a comparative negligence instruction for obvious error
	[¶15]  We discern no obvious error.  Contrary to Patricia's contention,
there was sufficient evidence from which the jury could have found that Ralph
was negligent during his course of treatment by the hospital.  First, the
relevant relationship between Ralph and the hospital did not begin on his
readmission on July 14, but continued from the time of his surgery on June 27
until his death.  The June 29 discharge instructions came from the hospital,
not just Dr. Omsberg.  The instructions told Ralph to call the hospital, not Dr.
Omsberg, to report any signs of infection.  The hospital, through the nurse who
gave the discharge instructions, failed to tell Ralph that the steroid he was
prescribed could mask such signs of infection.  It was the hospital's answering
service that may have received the telephone call reporting Ralph's serious
symptoms on July 10 and may have failed to convey the message to Dr.
Omsberg.  On the morning of July 14, Patricia first telephoned the hospital,
not Dr. Omsberg, and instead of being told to bring Ralph to the emergency
room immediately, she was eventually told to bring him in at 3 p.m.  
	[¶16]  Second, there was evidence that Ralph was negligent within this
course of treatment by the hospital.  Although he was instructed to have very
limited activity, there was evidence that Patricia told the doctor's secretary that
he was out of the house on July 5.  He was instructed to report any signs of
infection, and multiple medical experts opined that such signs must have been
present from several days to over a week before his readmission; if the jury
found, as it could have, that no telephone call was made on July 10, it could
have concluded that Ralph negligently failed to report the infection to the
hospital.  This view of the evidence was also supported by Dr. Omsberg's
version of his conversation with Patricia after Ralph died.  He testified that she
said Ralph "had probably overdone things since his surgery."  He also testified
that Patricia told him that she wanted Ralph to come in sooner because he
was obviously sick.  Dr. Omsberg further testified that Patricia said that she
had begged Ralph to let her call and take him in sooner but he would not let
her.  Dr. Omsberg's notes also indicated, apparently based on information from
Patricia, that Ralph had had spotty drainage from the wound on a daily basis
since leaving the hospital but had not reported it.  
	[¶17]  Finally, medical experts testified that Ralph would likely have
survived if he had been treated sooner.  On the basis of all this evidence, the
jury reasonably could have concluded that Ralph was negligent in failing to
follow the discharge instructions and failing to return for treatment, and that
his negligence was a proximate cause of his injuries and death.  Even under
Harvey, the court did not commit obvious error by instructing the jury on the
hospital's comparative negligence defense.
	[¶18]  We review the grant of a new trial only for "clear and manifest"
abuse of discretion, Chenell v. Westbrook College, 324 A.2d 735, 737 (Me. 1974);
thus, the scope of our review is "very limited," Gammon v. Verrill, 651 A.2d 831,
833 (Me. 1994).  Apparent jury confusion is grounds for a new trial.  Gould v.
Bangor & Aroostook R.R. Co., 292 A.2d 837, 839 (Me. 1972) (new trial required
where inconsistent verdicts reflected jury confusion traceable to inadequate
instructions).  Here the trial court granted a new trial on the grounds that:
After considering the totality of the circumstances, including the
wording of the verdict form, the difficulty the jury demonstrated in
using the form, the court's instruction concerning the use of the
form, and the vast disparity between the total damages as found by
the jury and the amount which purports to have been awarded,
plus the court's own misapprehension of the jury's action, the
court finds such opportunity for confusion and ambiguity that it
must order a new trial in the interest of justice.
	[¶19]  Although she suggested otherwise at oral argument, it is clear from
the record that at the time of her new trial motion, Patricia preferred a new
trial to the entry of judgment for only $182,000.  She now contends that a new
trial was not necessary, even if the court did not err in submitting the
comparative negligence issue to the jury, and in support of this contention she
makes several arguments.

A.	Verdict Form

	[¶20]  First, Patricia argues that the literal wording of the verdict form,
drafted by her attorney, supported an entry of judgment with no reduction for
comparative negligence.  Question 4 asked whether the hospital's negligence
was a proximate cause "of the death" of Ralph, while Question 5 asked whether
Ralph's negligence was a proximate cause "of his injuries."  Patricia contends
that "injuries" are distinct from "death," and because the jury only found
Ralph responsible for his own injuries, there should be no reduction in the
damages awarded for his death.
	[¶21]  In rejecting this argument, the trial court found that the terms
"death" and "injuries" "are included within each other and that for purposes of
the verdict form they constitute a distinction without a difference."  That
finding was reasonable and well-supported by the record, as no distinction
between death and injuries was drawn in the jury instructions or otherwise at
trial.  It is likely that the jurors did not notice the distinction on the verdict
form because it was not called to their attention.  If the jury did notice the
distinction, the resulting confusion would be an additional reason for granting
a new trial.

B.	Purported Jury Intent

	[¶22]  Question 9 on the verdict form stated: "To what dollar amount is
the total amount of damages found in your answer to question no. 8 to be
reduced after deducting a just and equitable sum having regard to the
negligence of Ralph Walker, Jr.?"  Patricia attempted to offer affidavits to show
that the jury intended to reduce the wrongful death damages by $32,000 rather
than to $32,000.  She claims that the court should have entered judgment for
her in the amount of $1,244,523.40.{3}   She contends that the verdict is
irrational and, therefore, the jury could not have intended it.    
	[¶23]  Two of our cases with similar facts are relevant.  In Cyr v.
Michaud, 454 A.2d 1376, 1379 (Me. 1983), the jury, in response to an almost
identical question on the verdict form, reduced the plaintiff's damages by
$20,000, from $100,000 to $80,000.  The defendant contended that the verdict
form was ambiguous and that the jury's intent-as shown in affidavits from all
the jurors-was to reduce the damages by $80,000, from $100,000 to $20,000. 
We held that the defendant could not now complain about the verdict form
since he had helped draft it, that in any event the form was not ambiguous,
and that the affidavits were inadmissible to show a mistake in the jury's
verdict.  Id. at 1380-81, 1384.
	[¶24]  More recently, in Taylor v. Lapomarda, 1997 ME 216, ¶¶ 3, 4, 702
A.2d 685, 686, the jury reduced the plaintiff's damages by $8000, from $8500 to
$500.  After the jury was discharged, the jurors returned, stated that they had
made a mistake, and sent the trial court a note indicating that they had
intended to reduce the damages by $500, from $8500 to $8000.  Id. ¶ 4, 702
A.2d at 686.  The court denied the plaintiff's request to set aside the verdict
and order a new trial, and we affirmed, holding that under Cyr the jury note
provided no basis to disturb the verdict.  Id.  ¶¶ 7-10, 702 A.2d at 687-89.
	[¶25]  Cyr and Taylor are controlling here.  There was no admissible
evidence to indicate that the jury did not intend the result indicated by the
unambiguous verdict form, and the court would not have been justified in
entering judgment as requested by Patricia.  Patricia points out that the 98%
reduction of damages in this case is greater than in any of the reported
decisions.{4}  That fact, however, when combined with the potentially confusing
jury instructions, the jury's first mistaken attempt to enter a verdict, and the
other factors mentioned by the trial court in ordering the new trial, was further
reason to set aside the verdict and grant a new trial.

C.	Additur

	[¶26]  Patricia argues that the court should have given the hospital an
opportunity to accept an additur before ordering a new trial.  She cites
M.R. Civ. P. 59(a): "A new trial shall not be granted solely on the ground that
the damages are inadequate until the defendant has first been given an
opportunity to accept an addition to the verdict of such amount as the court
judges to be reasonable."  Here, however, the court did not find the damages
inadequate or order a new trial on that ground, let alone solely on that ground. 
See Chenell, 324 A.2d at 738-39 (no abuse of discretion to deny additur and
grant new trial when damages inadequate but inadequacy appeared to reflect
compromise verdict).  The court's stated reasons for the new trial, as quoted
above, were confusion and ambiguity, not inadequate damages.  The court did
not abuse its discretion in denying the motion for additur.

D.	New Trial on Damages Alone

	[¶27]  Finally, Patricia contends that if a new trial was warranted, it
should have been on damages only.  Patricia, however, offers no analysis of
how two separate juries could decide the closely-linked issues of the degree of
comparative negligence and the appropriate reduction of damages, nor does she
offer any authority for the proposition that a new trial can be granted on
damages alone in a comparative negligence case.  She cites McKellar v. Clark
Equipment Co., 101 F.R.D. 93, 95 (D. Me. 1984), where the federal court
granted a bifurcated trial in a comparative negligence case, but that opinion
actually undermines her argument.  The decision to bifurcate in McKellar was
based on the court's conclusion that the issues of comparative fault and
damage reduction "can be treated as free-standing issues which, if tried to the
same jury, may be resolved in strict accordance with the requirements of the
substantive law of the State of Maine on comparative negligence."  Id.
(emphasis added).  In the present case "the question of damages is 'so
interwoven with that of liability that the former cannot be submitted to the
jury independently of the latter without confusion and uncertainty, which
would amount to the denial of a fair trial.'" 2 Field, McKusick & Wroth, Maine
Civil Practice § 59.2 (2d ed. 1970) (quoting Gasoline Prods. Co. v. Champlin
Refining Co., 283 U.S. 494, 500 (1931)).   The court did not abuse its discretion
in ordering a complete new trial.
	The entry is:
			Judgment affirmed.

Attorneys for plaintiff: Julian L. Sweet, Esq. (orally) Paul F. Macri, Esq. Berman & Simmons, P.A. P O Box 961 Lewsiton, ME 04243-0961 Daniel G. Lilley, Esq. David Kreisler, Esq. Daniel G. Lilley Law Offices, P.A. P O Box 4803 Portland, ME 04112-4803 Attorneys for defendants: George C. Schelling, Esq. (orally) Sandra L. Rothera, Esq. Gross, Minsky & Mogul, P.A. P O Box 917 Bangor, ME 04402-0917 (for MaineGeneral) Christopher D. Nyhan, Esq. Preti, Flaherty, Beliveau, Pachios & Haley, LLC P O Box 9546 Portland, ME 04112-9546 (for Omsberg)
FOOTNOTES******************************** {1} . Judgment was also granted in favor of defendant Dr. Eric Omsberg. Patricia Walker has not appealed that judgment. {2} . Although the hospital did not object before the trial court to the absence of a Rule 50(a) motion, the court gave as a reason for denying the post-trial motion that Patricia's failure to make "this more specialized argument at trial deprived MaineGeneral and the court of an opportunity to give more specific attention to the argument at that time." {3} . This figure represents the $1,476,523.40 total wrongful death damages found by the jury, minus the purported $32,000 reduction for comparative negligence, minus the $350,000 by which the $500,000 loss of consortium award was thought to exceed the statutory cap, plus the $150,000 damages for Patricia's separate claim of negligent infliction of emotional distress. The trial court held that the applicable cap on nonpecuniary damages under the Wrongful Death Act, 18-A M.R.S.A. § 2­p;804(b) (1998), was $150,000, and the parties do not raise the issue on appeal. In light of our recent decision in Greenvall v. Maine Mutual Fire Insurance Co., 2001 ME 180, 788 A.2d 165, however, it appears that the applicable cap was actually $75,000. {4} . See Taylor, 1997 ME 216, ¶ 3, 702 A.2d at 686 (94% reduction); Pomeroy v. Glidden, 1997 ME 118, ¶ 4, 695 A.2d 1185, 1186 (affirming 86% reduction from $125,000 to $18,000); Pelletier v. Fort Kent Golf Club, 662 A.2d 220, 221 (Me. 1995) (affirming 84% reduction from $250,000 to $40,000); Jackson v. Frederick's Motor Inn, 418 A.2d 168, 174 (Me. 1980) (affirming 59% reduction from $25,000 to $10,179).