Easter v. Hancock

Dissenting Opinion by

Van der Voort, J.:

I respectfully dissent from that part of the Opinion of the Majority which declines to grant a new trial as to damages. The facts are fully set forth in the Majority Opinion. In summary, the plaintiff’s decedent, the late Elmer Easter, age 67, was operated upon on August 26, 1968 for a large abdominal cancer which was found to be so extensive that removal was inadvisable. In the course of the operation, 150 hemostats were used to stop the bleeding. After the operation he received radiation treatments and chemotherapy. During the course of the *44treatments it was discovered that two hemostats had been left in Mr. Easter’s body. Mr. Easter was not informed of their presence because, the doctors said, it would be unnecessarily upsetting to the patient and the risk of removal would be too great to attempt it. Mr. Easter however was told of the presence of the hemostats in March of 1969. He died of cancer in July of that year. His widow brought suit for damages for the negligent leaving of the hemostats in her deceased husband’s body.

I agree with the Majority that Doctors Hancock, Finkler, Hodgins and the Presbyterian University Hospital were properly held liable for damages to the late Elmer Easter’s estate. However, I do not agree that a fair trial was held in determining the amount of these damages. Before trial, in a conference in the Judge’s chambers, counsel for the defendants-appellants objected to a discussion of punitive damages. The trial Judge properly ruled as follows with respect to the plaintiff’s opening address to the Jury saying, “Of course, he takes the risk as all lawyers do when they open to the Jury, if they say something which is particularly inflammatory and extremely prejudicial in the absence of proof supporting it, that you may then at a proper time move for a mistrial.” The case proceeded to trial and the plaintiff made the following opening statements to the Jury: “We have claimed that not only was the negligence in not revealing this to him, but their actions constitute a fraudulent concealment of the facts that the doctors had a duty to reveal this fact to Elmer Easter and let him make up his mind as to whether or not they should be removed, let him make up his mind as to what the course of the next ten months of his life were to be. But no, they concealed this from him. They concealed this knowingly from him, and they acted in a manner toward him which we contend was of a gross indifference in their treatment of this patient, and for this we not only are asking ordinary compensatory damages, damages that you will determine for the pain and suffering that *45he has gone through, but we are asking for punitive damages or exemplary damages as you may hear them called, and these are damages which we will say are preventative so that this kind of conduct doesn’t happen again by these men and anyone else who would learn of this kind of a situation.” And, he further stated to the Jury as follows: “It is a case of importance as one which we as citizens must be vigilant to do what we can to see that this does not occur again.”

I believe that these remarks of counsel were inflammatory and uncalled for. At the inception of the trial, counsel created an atmosphere of prejudice against the appellants. It turned out that the plaintiff had no evidence to support punitive or exemplary damages. However, appellee’s counsel had already indicated to the Jury that they should punish the doctors and the hospital. Medical Doctors are in a profession in which they must hurt many of their patients in order to try to cure them. Much of this is done in hospitals. Consequently, doctors and hospitals are “target” defendants. Prejudicial 'language should not be used in any trial; however, prejudice is more easily generated in a trial involving doctors and hospitals because the sensitive nature of their work makes them especially vulnerable to resentment.

The Jury in this case was confused as to damages. Their confusion persisted to the very end of the trial. This is demonstrated by the lengthy colloquy1 between *46the trial Judge and the foreman of the Jury after the Jury returned with its first verdict which was an incorrect one, and it was necessary for the Judge to require the Jury to retire and reconsider its verdict.

For these reasons, I would grant a new trial as to damages only in this case.

PRICE, J., joins in this dissenting opinion.

. (JURY PRESENT IN THE COURTROOM)

(SIDEBAR DISCUSSION.)

“THE COURT: You are Mrs. Frosh. Down at the bottom of the verdict slip you have Doctor Hancock, Doctor Finkler, Doctor Hodgins, and Presbyterian a thousand dollars a piece. What do mean (sic) by that?

MRS'. FROSH: The damages that we set.

THE COURT: That that was what they are to pay?

MRS. FROSH: What we understood, that is why we sent the note down. That is what we understood we were to set an amount of what we thought.

*46THE COURT: How do you reconcile where you say liability charges, Doctor Hancock ten thousand dollars as compared with Doctor Hancock one thousand dollars?

MRS. FROSH: Well this we figured—

THE COURT: The cause of action—

MRS. FROSH: We felt that the damages didn’t warrant a high monetary settlement.

THE COURT: What do you construe to he the total amount on here that you are awarding to the plaintiff? What would you say the total amount is that you were awarding?

MRS. FROSH: I would say Fifty Thousand dollars. It is forty-nine thousand dollars.

THE COURT: Do I understand that this down here, this is on the second cause of action on what you call failure to disclose cause of action. There was a cause of action for the fact that the hemostats were in there, is that what is up here?

MRS. FROSH: That would be here.

THE COURT: And this is the so-called figure (sic) to disclose?

MRS. FROSH: This we took to mean the pain that he had suffered, his pain, distress and all that that Mr. Easter suffered, and we figured this would compensate for that.

THE COURT: How much do you expect Mrs. Easter to get?

MRS. FROSH: Does she get all of this?

THE COURT: What do you expect her to get?

MRS'. FROSH: I don’t understand the question.

THE COURT: What amount of money is the thought of the jury that Mrs. Easter as executrix of the estate should receive, what total amount of money are you saying that she should receive?

MRS. FROSH: If you add all the amounts up it would he forty-nine thousand dollars.

THE COURT: Is it the thought of the jury that Mrs. Easter as executrix should get forty-nine thousand dollars?

MRS. FROSH: Yes. That is why we sent the question down as to we thought you would set a figure you know between here and *47there because we were at a loss to know what kind of figure it really would come to. We thought that the case as far as the doctors being negligent and irresponsible, I will use the word was greater than what Mr. Easter had suffered. That is the way we did it.

THE COURT: Do you mean that you were putting it in the sense of punitive damages, that you feel they should be punished?

MRS. FROSH: After we came to the liability charges that they were liable, who was liable and not liable, then we had to come—

THE COURT: What amount of money did you decide?

MRS. FROSH: You mean a total?

THE COURT: What amount of money did you decide was a proper sum for the pain and suffering of Mr. Easter produced by the hemostats as opposed to his other condition?

MRS. FROSH: Just this small amount down here. (The ‘small amount down here’ was $4,000.00).”