Goldsmith v. Hull

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Cheryl Goldsmith fka Cheryl Mumford,
personally, and as guardian ad litem for Geoffrey Goldsmith, a minor child,
Plaintiff and Appellant,

v.

Dale B. Hull, M.D.; and
Intermountain Health Care,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971581-CA

F I L E D
May 13, 1999 1999 UT App 161 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys:
Richard I. Ashton, Sandy, and David A. Wilde, Midvale, for Appellant
Kurt M. Frankenburg and Elliott J. Williams, Salt Lake City, for Appellee Hull
Patrick L. Tanner and Brinton R. Burbidge, Salt Lake City, for Appellee Intermountain Health Care

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Before Judges Greenwood, Bench, and Jackson.

JACKSON, Judge:

Goldsmith first attacks the trial court's factual finding that substantial cervical tissue was not removed. "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Utah R. Civ. P. 52(a). We have reviewed the record and conclude sufficient evidence exists to support the trial court's finding regarding the volume of cervical tissue removed.

Goldsmith next contends the trial court plainly erred in admitting Dr. Schultz's testimony on the length of the cervical canal, arguing that the testimony violated Utah Rule of Civil Procedure 26(e) and Utah Rule of Evidence 702. However, even assuming the trial court erred in admitting the testimony, the error would not have been obvious to the trial court. Furthermore, our review of the record shows that other testimony supported the trial court's findings of fact regarding cervical tissue volume and measurements. We therefore conclude that Goldsmith was not harmed by the alleged error and her plain error argument fails. See Hart v. Salt Lake County Comm'n, 945 P.2d 125, 131 n.3 (Utah Ct. App. 1997).

Even if Goldsmith had prevailed on the above issues, we would affirm the trial court. This is because Goldsmith did not challenge other of the trial court's factual findings that independently support its legal conclusion that Goldsmith did not prove the elements of her medical malpractice claim. Specifically, Goldsmith did not challenge the trial court's findings that Geoffrey's pre-term birth was caused by pre-term labor and that Geoffrey's intraventricular hemorrhages were caused by infection, not prematurity. Thus, aside from her failure to establish that Dr. Hull breached the standard of care, Goldsmith did not adequately show "'that injury to the plaintiff was proximately caused by the defendant's negligence'" or "'that damages occurred as a result of defendant's breach of duty.'" Kent v. Pioneer Valley Hosp., 930 P.2d 904, 906 (Utah Ct. App. 1997) (quoting Dalley v. Utah Valley Reg'l Med. Ctr., 791 P.2d 193, 195 (Utah 1990)).

Affirmed.
 
 

______________________________
Norman H. Jackson, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge