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COURT OF APPEALS DECISION DATED AND RELEASED March 26, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
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No. 94-3257
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
Terry DeMario and
Jan DeMario,
Plaintiffs-Respondents,
Family Health Plan
Cooperative,
a Wisconsin insurance
corporation, and
Compcare Health
Services, Ins. Corp.,
a Wisconsin insurance
corporation,
Involuntary-Plaintiffs-Respondents,
v.
Donald J. Zoltan,
M.D.,
Physicians Insurance
Company of Wisconsin, Inc.,
a Wisconsin insurance
corporation, and
Wisconsin Patients
Compensation Fund,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN E. McCORMICK, Judge. Affirmed
in part; reversed in part and cause remanded with directions.[1]
Before Sullivan, Fine
and Schudson, JJ.
PER
CURIAM. Donald J. Zoltan, M.D., and his insurer appeal from a
judgment of the circuit court awarding damages to Terry and Jan DeMario for
injuries sustained by Mr. DeMario while under Dr. Zoltan's care. On appeal, Dr. Zoltan argues that: (1) the jury's answer to two verdict
questions should be changed because the answers are not supported by any credible
evidence; (2) a new trial should be awarded because the special verdict improperly
advised the jury of the effect of their answers; (3) a new trial should be
granted because erroneous and prejudicial jury instructions were given; (4) a
new trial should be awarded or a remittitur should be given due to an excessive
damages award; (5) photographs of Mr. DeMario's knee were prejudicial and
should have been excluded; and (6) a new trial should be awarded pursuant to
§ 752.35, Stats.
Mr. DeMario came under
the care of Dr. Zoltan on July 3, 1987, for the diagnosis and treatment of pain
in his right knee. Dr. Zoltan diagnosed
“right knee chondromalacia of the patella with subluxation.” Dr. Zoltan recommended arthroscopic surgery. The surgery was performed by Dr. Zoltan on
March 3, 1988. Mr. DeMario's
complaint alleged that during the course of the procedure, Dr. Zoltan
negligently severed a tendon in Mr. DeMario's right knee and that he failed to
then fix the problem. Mr. DeMario
alleges that as a result of this malpractice, he has suffered permanent
injuries. The jury found Dr. Zoltan
negligent and awarded damages totalling $306,000.
1. Change of
Verdict
Dr. Zoltan argues that
the negligence and causation questions on the verdict form should be changed
from “yes” to “no” because they are not supported by any credible evidence. We disagree.
We will sustain the
jury's verdict if there is any credible evidence to support it. Radford v. J.J.B. Enters., Ltd.,
163 Wis.2d 534, 543, 472 N.W.2d 790, 794 (Ct. App. 1991). This is especially true when the verdict has
the approval of the trial court. Fehring
v. Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598
(1984). On review, we look at the facts
in the light most favorable to sustain the verdict and, where more than one
inference might be drawn from the evidence presented at trial, we are bound to
accept the inference drawn by the jury.
Gonzalez v. City of Franklin, 137 Wis.2d 109, 134, 403
N.W.2d 747, 757 (1987).
The jury's findings of
causation and negligence are supported by ample evidence. At trial, Dr. Clifford Raisbeck testified on
behalf of Mr. DeMario, stating that Dr. Zoltan negligently severed Mr.
DeMario's quadriceps tendon and then failed to treat it. He based his opinion on a review of all the
medical records relating to Mr. DeMario's treatment, including an MRI and his
physical examination of Mr. DeMario. On
his examination, Dr. Raisbeck found that the “entire quadriceps tendon is absent
at the patella and retracted.”
Although Dr. Zoltan does
not appear to dispute all of Dr. Raisbeck's testimony, he does take issue with
an MRI scan of Mr. DeMario's knee obtained five years after the tendon was
severed. Dr. Zoltan suggests that the MRI
shows a different type of defect in the knee that was not addressed by Dr.
Raisbeck. Dr. Zoltan admitted in his
trial testimony, however, that the MRI was not conclusive as to the nature of
cut he made into the tendon. There was
ample evidence to sustain the jury's verdict on the negligence and causation
questions.
2. Form of
the Verdict
Dr. Zoltan claims that
the jury was advised of the effect of their answer because of the form of the
special verdict submitted to the jurors.
Dr. Zoltan requested that damage questions be answered regardless of how
the jury answered the causation question.
The trial court rejected Dr. Zoltan's request and instructed the jury to
answer Dr. Zoltan's damage questions only if they found causation.
Generally, the form of
the special verdict question is left to the trial court's discretion and a
reviewing court will not interfere if the questions cover the issues. Dahl v. K-Mart, 46 Wis.2d 605,
609, 176 N.W.2d 342, 344 (1970). This
court will not interfere with the form of a special verdict unless the
question, taken with the applicable instruction, does not fairly present the
matter at issue of fact to the jury for determination. In Interest of A.E., 163
Wis.2d 270, 276, 471 N.W.2d 519, 521 (Ct. App. 1991).
Ordinarily, it is
reversible error to inform the jury of the effect of their answer or result of
their verdict. McGowan v. Story,
70 Wis.2d 189, 196, 234 N.W.2d 325, 328 (1975). Under the facts of this case, however, the trial court was within
its discretion in limiting the jury's award of damages to those that were
suffered as a result of Dr. Zoltan's negligence because his defense raised a
question as to whether Mr. DeMario's damages were caused by the negligence of
Dr. Zoltan or whether they resulted from an underlying pre-existing condition
for which he sought treatment. Given
this defense theory, a direction to answer the damages question without regard
to the jury's answers to the negligence and causation questions posed a
significant risk of prejudicially inflating any damage award.
3. Jury
Instructions
Dr. Zoltan claims that
the trial court gave erroneous and prejudicial jury instructions. He claims that the trial court should
have: (1) instructed the jury to
exclude damages that resulted from Mr. DeMario's original knee condition; (2)
instructed the jury as to Mr. DeMario's contributory negligence; (3) given his
proposed mitigation of damages instruction; (4) refused the circumstantial
evidence instruction given by Mr. DeMario; and (5) given his proposed
alternative methods of treatment instruction.
We agree that the trial court did not adequately instruct the jury on
mitigation, and, therefore, do not address the other jury-instruction issues
regarding damages. See Gross
v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only
dispositive issue need be addressed).
Trial courts have broad
discretion when instructing a jury and a challenge to an allegedly erroneous
instruction requires reversal if the error was prejudicial. Fischer v. Ganju, 168 Wis.2d
834, 849, 485 N.W.2d 10, 16 (1992). An
error is prejudicial if it “probably” misled the jury. Id., 168 Wis.2d at 850, 485
N.W.2d at 16. Dr. Zoltan requested that
a mitigation of damages instruction, Wis J I—Civil
1730, be charged to the jury:
A person who has been injured must use ordinary
care to mitigate or lessen the person's damages. This duty to mitigate damages requires an injured person to use
ordinary care to seek medical and surgical treatment and to submit to and
undergo recommended medical or surgical treatment within a reasonable time to
minimize the damage from physical injury.
An injured party must
use reasonable care to promote recovery.
See Lopez v. Prestige Casualty Co., 53 Wis.2d 25,
32, 191 N.W.2d 908, 912 (1971) (affirming
low award of damages for pain and suffering based on evidence that plaintiff
was dilatory in seeking follow-up treatment).
Although no injured person is required to undergo treatment that is
harmful, one injured by the wrongful conduct of another is obliged to exercise
reasonable care to minimize damages including following the advice of a
physician. Lobermeier v. General
Tel. Co., 119 Wis.2d 129, 148-149, 349 N.W.2d 466, 475–476 (1984). If a plaintiff elects neither to seek
medical care nor to follow medical directives, damages for future pain and
suffering or other disability can be diminished. Id.
We agree with Dr. Zoltan
that the trial court should have presented an instruction on mitigation of
damages to the jury. Dr. Zoltan
presented evidence that indicated that Mr. DeMario failed to follow-up for
treatment and failed to follow Dr. Zoltan's directives on physical
therapy. Dr. Zoltan also presented
evidence that Mr. DeMario was unhappy with his progress after surgery; that he
was in pain; that he had trouble moving his right leg; that he noticed that his
right thigh was “wasting away”; and, that he could see a hole above his right
knee cap. Mr. DeMario's own expert
testified that if he had returned for his follow-up visits, Dr. Zoltan could
have detected the defect and then would have had an opportunity to fix the
problem. It is apparent that the defense's theory was that Mr. DeMario did not
give Dr. Zoltan an opportunity, after these symptoms appeared, to treat him
properly. Given this theory and the
evidence presented by Dr. Zoltan, along with Mr. DeMario's allegation that Dr.
Zoltan failed to properly fix the severed tendon, the mitigation instruction
should have been given.
The trial court's
failure to give a mitigation of damages instruction left the jury without
guidance on how to evaluate the evidence that Mr. DeMario did not follow the
prescribed course of post-operative treatment.
Dr. Zoltan was entitled to have the jury consider, in mitigation of
damages, whether Mr. DeMario was negligent with respect to his own care
subsequent to the alleged malpractice.
Dr. Zoltan, therefore, is entitled to a new trial limited to the issues
of damages only.
Next, Dr. Zoltan argues
that the trial court should not have given the circumstantial evidence
instruction contained in Wis J I—Civil
230. Dr. Zoltan does not offer any
citation to authority for his argument and, therefore, we decline to consider
it. See State v. Pettit,
171 Wis.2d 627, 646–647, 492 N.W.2d 633, 642 (Ct. App. 1992) (appellate court
need not consider arguments unsupported by citation to authority).
Dr. Zoltan also argues
that the trial court should have given his proposed instruction regarding
alternative methods of treatment found in Wis
J I—Civil 1023, which reads in part:
If you find that more than one method of
treatment for Terry DeMario's injuries is recognized, then Dr. Zoltan was at
liberty to select any of the recognized methods. Dr. Zoltan was not negligent merely because he made a choice of a
recognized alternative method of treatment if he used the required care, skill
and judgment in administering the method.
This is true even though other medical witnesses may not agree with him
on the choice that was made.
We
conclude that the trial court correctly excluded this instruction because the
issue before the jury was whether Dr. Zoltan negligently performed the
treatment he chose, not whether he negligently chose a course of treatment.
4. Photographs
Dr. Zoltan argues that
the trial court committed prejudicial error in admitting certain photographs of
Mr. DeMario's right knee into evidence because they were cumulative, misleading
and deceptive.
Whether photographs
should be viewed by the jury is left within the sound discretion of the trial
court. State v. Hagen,
181 Wis.2d 934, 946, 512 N.W.2d 180, 184 (Ct. App. 1994). We will not disturb the court's decision
“unless it is wholly unreasonable or the only purpose of the photographs is to
inflame and prejudice the jury.” Id. We have viewed the photographs and do not
find them misleading or deceptive. The
photographs show a leg with a dent above the knee-cap, as well as a scar. We conclude that the photographs were
probative with regard to whether Mr. DeMario suffered bodily harm, as well as
the nature and extent of his injuries.
Although the photographs may be somewhat cumulative of the testimony of
witnesses, the photographs aid the jurors in understanding witness
testimony. The probative value of the
photographs was not “substantially outweighed by the danger of unfair
prejudice.” See Rule 904.03, Stats.
The trial court did not erroneously exercise its discretion when it
permitted the jury to see the photographs.
5. Excessive
Awards and New Trial/Remitter
Dr. Zoltan claims that a
new trial should be granted due to the cumulative effect of error regarding the
special verdict, jury instructions and certain evidentiary rulings. Our grant of a new trial on damages renders
these issues moot.
The judgment is reversed
and a new trial is granted as to damages only.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.