Opinion
April 10, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 795
Joseph J. Branney, Ronald K. Griffith, Englewood, for plaintiff-appellant.
Wagner & Wyers, Dean R. Vanatta, Denver, for defendant-appellee.
ENOCH, Judge.
This medical malpractice suit was initiated by Malcom W. MacDougall, plaintiff-appellant, against Dr. John W. Posey, defendant-appellee. Trial was to a jury which returned a verdict for Dr. Posey. MacDougall appeals from the judgment entered on that verdict. We affirm.
The allegations in MacDougall's complaint pertinent to this appeal are (1) that, in the process of extracting a kidney stone, Dr. Posey injured MacDougall's left ureter, (2) that defendant was negligent and careless in failing to diagnose the injury and in failing to perform certain diagnostic tests, and (3) that, as a direct and proximate result of this alleged negligence and carelessness, it was subsequently necessary to remove MacDougall's left kidney. MacDougall sought damages in the amount of $75,000.
Plaintiff asserts on appeal 'that there was a manifest insufficiency of the evidence to support a verdict in favor of the defendant, and that the trial court abused its discretion in denying plaintiff's motion (for a new trial).' We do not agree.
The granting of a new trial on the grounds that the evidence is insufficient to support the verdict is a matter of discretion with the trial court, and its ruling will not be disturbed on review unless there is a clear abuse of that discretion. Scott v. Matsuda, 127 Colo. 267, 255 P.2d 403. In determining whether there has been such abuse of discretion on the basis of insufficiency of the evidence, the evidence must be considered in the light most favorable to the party in whose favor the verdict has been entered. Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044.
The record discloses extensive testimony by expert medical doctors on behalf of both parties as to all phases of MacDougall's medical history and the care and treatment administered by Dr. Posey. Although most facts were undisputed, there were conflicts in the evidence on two of the key issues which had to be determined in the proof of MacDougall's case. Two parts of one issue were (1) whether Dr. Posey deviated from the standard of practice applicable in Denver of performing an intravenous pyelogram after extracting the kidney stone and (2) at what point in time the pyelogram should have been performed. The other essential issue was whether Dr. Posey's failure to perform this test was a proximate cause of the damage to MacDougall. Since there was a conflict in the evidence on these key issues, the trial court properly submitted the case to the jury for determination. American Insurance Co. v. Naylor, 103 Colo. 461, 87 P.2d 260.
Where questions of fact are submitted to the jury with proper instructions as to the applicable law, neither the trial court in considering a motion for new trial nor the reviewing court should supplant its impressions and conclusions for those of the jury where the verdict is supported by competent evidence. Book v. Paddock, 129 Colo. 84, 267 P.2d 247. In the case at hand, no objection has been raised to the jury instructions, and there is competent evidence to support the verdict of the jury.
Judgment affirmed.
COYTE and SMITH, JJ., concur.