Opinion
No. 2-382 / 01-0793
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.
Rochelle Baker appeals from the district court ruling denying Baker's motion to vacate jury verdict and motion for new trial. REVERSED AND REMANDED.
Michael M. Sellers of Sellers Law Office, Des Moines, for appellant.
John M. French of Peters Law Firm, P.C., Council Bluffs, for appellee.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
Rochelle Baker appeals from a district court ruling denying her motion to vacate jury verdict and motion for a new trial. We reverse and remand for a new trial.
I. Background Facts and Proceedings. On April 23, 1997, Rochelle Baker was hospitalized at Mercy Medical Center to have surgery to remedy her thoracic outlet syndrome (TOS). Dr. Smith performed the operation. Although there are various approaches that can be utilized to perform this surgery, the approach agreed upon by Baker and Smith was a supraclavicular approach, which required an incision above Baker's collarbone. During the course of the surgery, Smith unintentionally severed Baker's left subclavian artery, the main source of blood to the arm. Smith called in another surgeon to repair the artery. The artery was repaired by sewing the two ends back together with a graft. The two surgeons then decided to continue the surgery and gained access to the thoracic outlet through an incision under Baker's armpit. The surgery was completed without further incident.
Baker's condition improved after the surgery, but within months she began suffering from many symptoms, some of which were similar to complaints she experienced before the TOS surgery. Her symptoms included pain, discoloration, and reduced blood pressure in her left arm. Her left hand and arm were cold, her arm and neck were sore with rigorous activities, and she experienced tingling and numbness in her hand, arm, and breast.
Baker filed suit on April 22, 1999, alleging negligence, lack of informed consent, and medical battery against Dr. Smith. In his answer, Smith alleged Baker failed to mitigate damages. To support this defense, Dr. Smith offered two theories. He opined during the trial that the cause of Ms. Baker's symptoms was a recurrence of TOS and that surgery might alleviate some of the symptoms. In the alternative, Smith offered the testimony of Dr. Sanders, who in a videotaped deposition recorded less than a month before trial, opined that Baker's symptoms were caused by an obstruction of the damaged subclavian artery. Dr. Sanders testified that the arterial obstruction could be treated with a surgery to either bypass or replace the blocked graft.
Dr. Levy, Baker's family practice physician both before and after the surgery testified she did not recommend further surgery in this case. There was no testimony tending to prove that Baker failed to follow the recommendations of Dr. Levy or any of the medical specialists to whom she had been referred.
At the close of trial, Baker unsuccessfully challenged the sufficiency of the evidence supporting the district court's mitigation of damages instruction. The jury returned a verdict finding Smith twenty percent at fault in connection with the failed surgery and Baker eighty percent at fault for her failure to mitigate damages. Thereafter, Baker filed a motion for new trial challenging the sufficiency of the evidence supporting the mitigation of damage issue. Baker appeals from the district court's order overruling her motion.
II. Scope and Standard of Review. "A party is entitled to have an adverse decision vacated and a new trial granted if errors of law occurred in the proceedings." Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 544 (Iowa 1997) (citing Iowa R.Civ.P. 1.1004(8)). We review this claim for correction of legal error. See id. at 545. The district court must not instruct on "an issue having no substantial evidential support or which rests on speculation." Thompson v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa 1997). "Substantial evidence is that which a reasonable person would find adequate to reach a conclusion." Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). In assessing whether the evidence supporting an instruction is substantial, we give it the most favorable construction possible in favor of the party urging submission. Hoekstra v. Farm Bureau Mut. Ins. Co., 382 N.W.2d 100, 108 (Iowa 1986).
III. Error Preservation. At the close of trial, Baker objected to the jury instructions regarding mitigation of damages, based on insufficiency of the evidence. She argued
[T]he defendant had to put on evidence sufficient to warrant a reasonable juror to believe that the plaintiff in some manner failed to mitigate her damages.
The defendant at two times under oath at trial in this case stated that he was not blaming the plaintiff for any fault in this matter. And I'm using my memory here to remember whether there was any affirmative evidence put on by either party that the plaintiff was at fault in some manner or failed to mitigate.
The evidence that I recall in the record is that the plaintiff did everything her doctors asked of her. If defendant is claiming that she should have other surgery, her doctors have all told her she shouldn't have other surgery.
I believe the burden is on the defendant to show that somehow the plaintiff has not followed the instructions of her physicians, physician or physicians, and/or chose a medical care that was reckless, where she was — or she recklessly chose her medical care. There's no evidence to that. There's no evidence whatsoever in the record that somehow the plaintiff recklessly chose her medical care providers. So therefore, I think that the record is clear that there is insufficient evidence to warrant a defense of mitigation of damages to go to the jury.
After the jury rendered its verdict, finding Baker eighty percent at fault for failure to mitigate her damages, Baker moved the court to vacate the verdict and grant a new trial. In this motion, Baker argued that the evidence of failure to mitigate was insufficient and that the jury's verdict was contrary to law and fact. She specifically argued it was impossible to mitigate some of her damages, including the initial pain and suffering she endured while recovering from the severance of her artery and the resulting second TOS surgery. She argued any failure to mitigate would apply only to future damages as Baker had never been advised by her physicians to have another surgery to correct her symptoms, and had not been presented with the possibility of future surgery by the defendant's witnesses until less than a month before trial (more than three years after the original TOS surgery). Moreover, she argued the district court improvidently submitted the mitigation of damage issue after Smith failed to introduce expert testimony constituting substantial evidence that Baker's failure to have a third surgery was unreasonable.
We here refer to the incision in the armpit as the "second TOS surgery" notwithstanding the fact that it appears to have been accomplished with a single anesthesia.
Smith contends Baker failed to preserve for our review the specific error she advances on appeal. We disagree. Baker's objection to the jury instructions was adequate to alert the district court to Baker's contention that the evidence was insufficient to justify submission of the mitigation issue. The issue was presented to the district court again in Baker's post-trial motion. Thus, we conclude error was preserved.
IV. Sufficiency of the Evidence of Failure to Mitigate Damages. Our supreme court announced its decision in Greenwood v. Mitchell, 621 N.W.2d 200 (Iowa 2001) just one day after the verdict was filed in Baker's case. In Greenwood, the court (1) held that a plaintiff's comparative fault should not be submitted to the jury in the absence of expert testimony tending to prove a causal connection between the plaintiff's fault and her damages, and (2) noted that the district court should distinguish in its instructions between avoidable and unavoidable damages. Baker cited Greenwood to the district court in her post-trial motion and contends it entitles her to a new trial. Smith contends conversely that the Greenwood case came too late to affect this case. We conclude we need not decide whether Greenwood applies because the evidence presented at Baker's trial was insufficient to support a mitigation of damages instruction under the state of the law before the Greenwood decision.
Iowa Code section 668.1(2) (1999) provides cause in fact and proximate cause requirements apply to fault as the basis for contributory fault. Iowa Code section 668.3(3) requires the fact-finder charged with allocating fault to consider the parties' conduct and the extent of the causal relation between the conduct and the damages claimed. These code sections were the law before Greenwood and at the time of the jury trial which is the subject of this appeal. It was also the law pre- Greenwood that expert testimony is usually required to prove a causal connection between conduct and damages claimed. Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998) (noting that expert testimony is generally required in workers' compensation case to prove causal connection between injury and disability), Kennis v. Mercy Hosp. Medical Center, 491 N.W.2d 161, 165 (Iowa 1992) (holding that expert testimony is needed to establish causal connection between breach of duty and the alleged harm in medical malpractice suit), and Bradshaw v. Iowa Methodist Hosp., 101 N.W.2d 167, 171 (Iowa 1960) (holding that a "causal connection between fall and subsequent disability is essentially within the domain of expert testimony" in suit for personal injuries). Thus, we conclude Greenwood did not substantially change Smith's burden to prove Baker's fault and its causal connection to her damages.
In this case, the district court believed a comparative fault issue was engendered by "testimony and evidence regarding additional surgery that might be an option." Smith relies upon his own testimony and that of Dr. Sanders to support the submission of the issue. As noted above, Sanders gave deposition testimony about alternative procedures (replacing the graft or bypassing the graft) to address Baker's problems less than one month before trial. He testified the procedures "would have a good chance of resolving [the symptoms]." Sanders did not testify, however, that he or any other medical professional had advised Baker to undergo such procedures before trial. Although Defendant Smith opined Baker needs a repeat TOS surgery, he did not suggest this until his trial testimony and there is no evidence such medical advice was given to Baker before trial. Notably, Smith declined to testify that Baker should have the surgery because he could not say whether the risks of repeat surgery would outweigh its anticipated benefits, and deferred to any surgeon who might consider doing such a surgery in the future. The testimony of Drs. Sanders and Smith was certainly relevant to Baker's future damages to the extent that prospective medical treatment might reduce or eliminate her pain. It was insufficient, however, to generate a jury question on the issue of whether Baker failed prior to trial to pursue reasonable treatment options available to her. Neither doctor testified that Baker knew or should have known of further surgical options or that her failure to submit to further surgery before trial was unreasonable under the circumstances. Accordingly, we conclude that even when given the most favorable construction possible in favor of Smith, the record does not contain substantial evidence tending to prove that Baker failed unreasonably before trial to mitigate her damages. The district court committed legal error by submitting the comparative fault instruction to the jury. We reverse and remand for a new trial.
As noted above, Baker's family physician, Dr. Levy, testified that she specifically opposed the graft surgery and doubted the necessity of the TOS surgery.
REVERSED AND REMANDED.