No. 92-209
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
LUCILLE P. YOUNG and
LAURENCE G. YOUNG,
Plaintiffs and Appellants,
-v-
VEFW H. HORTON, M.D.,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Erik B. Thueson, Thueson Law Office, Helena, Montana
For Respondent:
E. Craig Daue, Garlington, Lohn & Robinson,
Missoula, Montana
submitted on Briefs: November 24, 1992
Decided: June 10, 1993
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from a Fourth Judicial District Court,
Missoula County, jury verdict in a medical malpractice action.
There are several issues on appeal:
Was there sufficient evidence to support the jury's
verdict that Respondent Dr. Vern H. Horton (Horton)
obtained informed consent for the surgery from Appellant
Lucille Young (Young)?
Were expert opinion and medical journal articles
erroneously admitted on the issue of memory and
credibility?
Did the court abuse its discretion when it refused to
allow the Appellants Lucille and Laurence Young (Youngs)
to ask hypothetical questions about the law during voir
dire?
Were the parties affected by a recess of 5 days and one
additional day later, during the trial and if so, was
Appellants1 right to a fair trial prejudiced because of
the recesses?
Lucille Young began experiencing pain in her right leg after
walking and when she asked her family doctor, Doctor Coriell about
it, he determined that she was suffering from restriction of
arterial circulation in the leg. He referred her to Horton for
diagnosis and treatment of the problem.
Horton scheduled an arteriogram for Young and when he obtained
the results, prescribed surgery to alleviate the condition. Horton
performed an aorto-bifemoral bypass on March 3, 1988 at Missoula
Community Hospital. As a complication of the surgery, Young
suffered a thrombosis of the anterior spinal artery, resulting in
paraplegia. The complaint in this action was filed on February 26,
1990.
1. Informed Consent
Youngs argue that there was insufficient evidence for the jury
to conclude that Horton obtained informed consent. We cannot
agree.
This Court's function in reviewing jury verdicts is
necessarily very limited. We must review the evidence in
a light most favorable to the prevailing party to
determine whether substantial evidence supports the
jury's verdict. This Court cannot reweigh the evidence
or disturb the findings of a jury unless that evidence is
so inherently impossible or improbable as not to be
entitled to belief.
Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 48, 803 P.2d
629, 636 (citations omitted).
Horton testified that he advised Young of the risks of the
surgery, such as death, lung damage, and problems with her heart or
the graft or bleeding when he spoke with her and her husband,
Laurence, on March 2, 1988 in her hospital room. Dr. Golding, one
of Horton's medical experts, stated that Ifhisdiscussion...covers
the significant risks of the operative procedure and would be the
standard discussion that a surgeon would have with the patient
prior to the surgery." Dr. Szilagyi, Horton's other medical
expert, stated that 'I [a]ccording to the record, Dr. Horton informed
the patient and her husband fully in complete accordance with what
now is generally regarded as duty of the surgeon."
3
Although the Youngs dispute that there was ever any discussion
about the risks of the operation, "when conflicting evidence
exists, the credibility and weight given to the conflicting
evidence is within the jury's pro~ince.'~Whiting v. State (1991),
248 Mont. 207, 213, 810 P.2d 1177, 1181. his Court will not
overturn its determination by weighing conflicting evidence on
appeal." Davis v. L.D.S. Church (l99O), 244 Mont. 61, 68, 796 P.2d
The jury concluded t h a t Horton obtained Young's informed
consent before he performed the surgery. We conclude that there is
substantial credible evidence to support the jury's verdict that
Horton obtained Youngts consent prior to her surgery.
2. Expert Opinion and Medical Journal Articles
The scope of review for discretionary evidentiary rulings of
the trial court,is whether there has been an abuse of discretion.
Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803
The Youngs argue that the trial court improperly admitted four
medical journal articles concluding that the majority of patients
forget that they gave informed consent to their doctors prior to
surgery. The Youngs contend these articles are improper for three
reasons:
a. The articles lack probative value and are unfairly
prejudicial.
b. The expert testifying regarding the articles did not
give his conclusion to a degree of medical
certainty.
c. The respondent violated discovery rules.
a. The Youngs state that f'the issue of credibility is supposed
4
to be decided by the jury--not by studies created by strangers
which do not even fit the circumstances of the case." Respondent,
however, contends that under Rule 702, M.R.Evid., expert testimony
is permitted Itif scientific knowledge will assist the jury to
understand the evidence to determine a fact in issue.Ir
We conclude that the medical articles and the related
testimony were admissible. The trial court ruled that the expert
could testify and refer to the medical articles but they could not
go before the jury as exhibits. Further, they could be referred to
as accepted studies but the expert was not to testify as to whether
Young was advised of the risks of surgery; that would be a question
for the jury.
vl[The]determination of relevancy and of the admissibility of
evidence is within the discretion of the trial court. [W]e will
not disturb the District Court's permission to admit the
disputed ...testimony unless the court abused its discretion."
Dahlin v. Holmquist (l988), 235 Mont. 17, 20, 766 P.2d 239,241.
Here, the trial court carefully delineated what was admissible and
what was inadmissible. The expert's testimony was based on four
medical journal articles and his own experience as a doctor. He
did not testify on "the workings of her mindtrnor did he comment as
to whether Young had given informed consent.
He did testify as to memory of a specific experience with
which he had knowledge and used learned treatises as the basis of
his testimony. Testimony by experts is admissible if scientific
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue. Rule 702, ~.R.Evid. Here, the
trial court determined that this medical doctor had knowledge and
experience to testify as to the authoritativeness of the medical
journal articles and could assist the jury with information about
surgical patients and their memory of informed consent. He could
testify as to the conclusions of the medical studies and of his own
experience, but not as to the ultimate fact of whether Young gave
Horton informed consent. Mahan v. Farmers union Cent. Exchange
(1989), 235 Mont. 410, 421-422, 768 P.2d 850, 857. The trial court
did not abuse its discretion in admitting the four medical journal
articles and expert testimony as to his experience with the subject
matter.
b. The Youngs argue that the medical expert did not render a
vconclusion to a reasonable degree of medical certainty that these
studies or the expert's opinion on them applied to [Young] and her
memory," The Youngs' objection came after Hortonfsattorney asked
the expert if his experience in his own practice was consistent
with a study in which most patients forgot the possible risks of
the surgery the doctor discussed with them. The Youngst attorney
stated, "1 would object, Your Honor, on the grounds that opinions
have to be given with reasonable medical certainty." The doctor in
this case was not asked to give an opinion, rather, to speak of his
past experience. Under Rule 702, M.R.Evid., an expert may testify
in the form of an opinion or otherwise. His answer here was
acceptable in its form.
c, The Youngs also argue that the medical articles were
inadmissible because they were unfairly surprised and Horton
violated discovery rules. They further contend that they made
several attempts during discovery to obtain this information, but
it was not until after the pretrial conference that the articles
and the expert's opinion were revealed.
The Pretrial Order, Part VI states that "[tlhe parties shall
exchange on or before November 27, 1991 any learned treatises,
medical journal articles, or similar documentary proof that they
may wish to use during the case in chief of the trial." On
November 27, 1991, respondent's attorney sent two letters to
appellants' attorney by telecopy. The first letter contained a
list of medical journal articles the respondent planned to rely on
during his case in chief. The second letter contains information
regarding the issues about which the medical expert, Dr. Golding,
would testify. These letters were provided within the schedule set
out in the pretrial order of November 20, 1991.
In addition, Part 111, Defendant's contentions 8 in the
pretrial order, states that: "[s]urgical patients have a well-
recognized tendency recall (sic) poorly the risks about which they
were informed prior to the surgery. They tend to have greater
recall of the information given to them before the surgery about
the benefits of their operation. This contention provides
sufficient notice that the memory of giving informed consent would
be an issue for the respondent. The medical journal articles and
the expert's testimony about patient recall about giving informed
consent were properly admitted.
3. Voir Dire
The Youngs also argue that the trial court improperly
restricted voir dire. They state that when their attorney
attempted to ask the jurors whether they would follow the law on
informed consent even if the surgery itself was technically
correct, the trial court prevented them from asking any questions
about the law at all, Horton counters that appellants had an
opportunity to fully discuss the juryts duty to adhere to the law
as the judge explains it.
IfAbsent an abuse of discretion.. .the trial court has great
latitude in controlling voir dire." Priest v. Taylor (1987), 227
Mont. 370, 382, 740 P.2d 648, 655. (Citation omitted.) Upon
review of the trial transcript, this Court concludes that the trial
court did not abuse its discretion when it limited the Youngs1
attorney's voir dire.
The Youngsf attorney was able to question the panel generally
as to whether they would follow the law as provided by the judge
even if philosophically opposed. He later attempted to inquire as
to whether the potential jurors would follow the particular law of
informed consent. "The scope of questioning on voir dire is
largely a matter of discretion for the trial judge who may set
reasonable limits on the examination but should permit liberal and
probing examination calculated to discover possible bias or
prejudice, with due regard to the interests of fairness to both
parties." Hill v. Turley (1985), 218 Mont. 521, 520, 710 P.2d 50,
56. Here, the Youngst attorney had already elicited the assurance
of the jurors that they would follow the law given by the judge
even if they did not agree with the law. Anything more would be
cumulative and the trial court properly exercised its discretion to
move the voir dire process along.
4. Recess during Trial
Finally, the Youngs contend that their right to a fair trial
was jeopardized by the interruptions during the course of the
trial. The parties were given the trial schedule, including the
two scheduled recesses at the pretrial conference on November 20,
1991. The trial started on December 2, continued on December 3 ,
then a break was taken until December 9. The trial then continued
on December 10, recessed again on December 11 and concluded on
December 12.
We conclude that the trial court did not abuse its discretion
in conducting the trial as scheduled. The Youngs' attorney did not
object to the schedule at the pretrial conference nor did any
jurors complain of problems due to the schedule. The Youngs
presented no evidence of outside influences affecting the jury.
When the court recessed on December 3, they were admonished
not to discuss the case among themselves or anyone else. On
December 10, before the trial was recessed until December 12, the
court stated:
The instruction I have been giving about not talking to
anyone about this case becomes particularly important at this
time. It is necessary that you retain an open mind and not
form any opinion prior to this matter being submitted to you
for your deliberations. In order to do that, we have to
insure that you not discuss this case amongst yourselves or
with anyone else, and that includes family members, prior to
the matter being submitted to you for your deliberations.
Any statements by appellants that they were prejudiced by the
recesses is speculation. The trial court did not abuse its
discretion when it recessed for other court matters.
AFFIRMED.
We Concur:
Justice William E. Hunt, Sr., specially concurring.
I concur with the majority's decision upholding the verdict of
the jury relating to the issue of informed consent. While
conscious of the province of the jury in determining the facts, I
must comment upon what the jury found to be "informed consent."
The discussion took place in a stressful atmosphere which
would not enable someone to be in the best frame of mind to give
informed consent. Dr. Horton visited Mrs. Young the night before
the operation. He explained the risks of the surgery in a couple
of sentences. He did not provide her with any further explanation
of the risks of the surgery, nor did he inform her of any
alternative treatments that were available. Mrs. Young testified
that she was frightened the day before the operation. Mrs.
Young's surgery was merely an elective procedure. At the time of
the conversation, the surgical team was placed together and bills
for the surgery were already being generated.
Two doctors testified as expert witnesses for Dr. Horton
stating that the explanation of the risks was adequate. Mrs. Young
was unable to offer expert testimony to rebut those experts.
Because she could not do so, the jury was left with no choice but
to reach the verdict that it did. For this reason, I reluctantly
concur with the decision of this Court.