Chater v. Central VT Hospital

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-576


Maude and Michael Chater                     Supreme Court

                                             On Appeal From
     v.                                      Washington Superior Court

Central Vermont Hospital                     November Term, 1989


Stephen B. Martin, J.

Robert D. Rachlin, Robert B. Luce and Ernestine G. Abel of Downs Rachlin
  & Martin, Burlington, for plaintiffs-appellants

Peter B. Joslin and Jeffrey W. White of Theriault & Joslin, P.C.,
  Montpelier, for defendant-appellee


PRESENT:  Allen, C.J. and Dooley, J., and Barney, C.J. (Ret.) and Springer,
          J. (Ret.), Specially Assigned

     ALLEN, C.J.   Plaintiffs, the parents of a child born at the Central
Vermont Hospital, sued the hospital on their own behalf and for the child,
alleging that the hospital's negligence during the child's birth resulted in
the child's cerebral palsy and spastic quadriplegia and caused the parents
to suffer emotional distress.  The jury returned a verdict in defendant's
favor, and plaintiffs appeal on the grounds that the court gave erroneous
jury instructions, limited the child's appearance in court, and refused to
grant a new trial.  We affirm.
     Plaintiff Maude Chater was an obstetrical patient of Dr. Arthur G.
Spector, a member of the medical staff at defendant hospital.  Prior to the
expected delivery date, a sonogram revealed that the fetus was in the breech
position, and a caesarean section was planned.  Mrs. Chater went into labor
two days before the planned delivery and was admitted to the hospital at
1:55 p.m.  Despite increasing labor and some signs of fetal distress, no
fetal monitor was employed until 5:50 p.m., at which time, in plaintiffs'
view,  it indicated acute distress.  The caesarean was not performed until
6:35 p.m., and the child Benjamin Chater was born asphyxiated, with no
respiration or heartbeat.  He was subsequently diagnosed as having cerebral
palsy and is confined to a wheelchair for life, with multiple disabilities.
     Plaintiffs' case against defendant hospital (FN1) was based on their
contentions that a mother with a fetus in the breech position  is considered
to be in "high risk" labor, that Mrs. Chater's amniotic fluid indicated
particular difficulties shortly after her admission to the hospital, and
that numerous hospital practices and procedures failed to meet appropriate
standards of care.  Specifically, plaintiffs sought to prove that defendant
hospital ignored national standards regarding the use of electronic fetal
heart monitoring; that the hospital had a policy of not opening a second
operating room except in case of emergency, so that Mrs. Chater's delivery
was unduly delayed; that the hospital allowed Dr. Spector to practice alone,
without providing for, or insisting on, alternative coverage when he was not
available; that hospital nurses did not respond after noting the fetus's
accelerated heart rate, as required by national standards, or take any of
the numerous steps that plaintiffs contend are mandated in such
circumstances; and that the hospital's chief of obstetrical services, though
aware of the emergency, refused to assist in the delivery.
     There is no dispute that the child's condition resulted from brain
damage caused by severe oxygen deprivation in the last minutes before he was
born.  Paintiffs' contend that the hospital could have prevented the delay
that resulted in the permanent impairments.
     Following presentation of evidence, the jury was asked to answer two
questions on the verdict form.  In response to the first question, the jury
found the hospital negligent in its care of the mother and unborn child.  On
the second question, the jury found that this negligence had not proximately
caused the child's injuries.                 
                                    I.
     On appeal, plaintiffs first argue that the trial court erred in
instructing the jury on proximate cause.  The instruction was given as
follows:
            If you should determine, by a preponderance of the
         evidence, that there was a breach of duty owed to
         Plaintiffs as I have instructed, you must then determine
         whether that breach or breaches of the standard of care
         was or were the proximate cause of the Plaintiffs'
         injuries.  You cannot find the Defendant liable simply
         because you may find that the Defendant breached a duty
         or standard of care.  In other words, there must be some
         connection between the Defendant's actions and the
         Plaintiffs' injuries.  This connection is called
         proximate cause.  For example, if you should find that
         the Defendant failed to follow some applicable standard
         but that the failure to do so had no impact on what
         happened to the Plaintiffs, then you have not found
         proximate cause and you must find for the Defendant.
         Simply put, the mere failure to do something is not a
         basis for recovery unless it was a negligent failure and
         legally caused the injury or damage.  The Plaintiffs
         must prove that the conduct complained of was a cause in
         fact of the allege[d] injuries.

            You have found proximate cause if it appears to you
         from the evidence in the case that the Defendant's
         negligence played a substantial part in bringing about
         the Plaintiffs' injuries and that the injuries to the
         Plaintiffs were in whole or in part a direct result or a
         reasonably probable or natural consequence of the
         Defendant's actions.  In a medical malpractice case, you
         may not presume that the hospital was negligent solely
         because the patient had a bad outcome from the physi-
         cian's treatment.

            Where two or more proximate causes combine to produce
         an injury, a recovery may be had if the Defendant is
         responsible for any one of them, though it may not be
         responsible for the others.   As you know, the Plain-
         tiffs originally sued both Dr. Arthur Spector and the
         Central Vermont Hospital.  The Plaintiffs have settled
         with Dr. Spector.  The Plaintiffs claimed that both Dr.
         Spector and the Central Vermont Hospital were negligent.
         If you find that the negligent action or negligent
         inactions of the Central Vermont Hospital was a prox-
         imate cause, in any part, of injury on the part of the
         Plaintiffs, then you should find in favor of the Plain-
         tiffs even if you find that Dr. Spector was also
         responsible for the Plaintiffs' injury.

     Plaintiffs contend first that "[b]y using the term 'substantial part'
without elaboration, the court improperly suggested that proximate cause was
related to a 'quantity' of conduct.  This was extremely prejudicial to
Plaintiffs' case."  Plaintiffs concede that the phrase "substantial factor"
would have been acceptable, but that "substantial part" implies a particular
fraction of the total causative factors.
     Defendant responds, and the record confirms, that plaintiffs' counsel
objected to the use of the word "substantial," but never complained about
the use of the word "part."  The following discussion took place during the
in-chambers conference on jury instructions:
            [Counsel for plaintiffs]:  I think, first of all,
         what we lawyers mean by a substantial part may not be
         what a lay person understands by that term.  They may
         take "substantial" to mean that it was more than 50
         percent.  I would say that you might say "play a
         material part" or "played a significant part."  I think
         "significant" says the same thing without having the
         implication of mass that "substantial" has.

            . . . .

            THE COURT:  I always use the word "substantial."  I
         guess I'll stick with it.

            [Counsel for plaintiffs]:  Well, we would indicate
         our respectful objection to the word, despite the fact
         that it is time honored. (Emphasis added).

     Although no objection to the word "part" has been preserved, our
consideration of the word "substantial" leaves us convinced that no error
occurred in any event.  In the context of the entire instruction, the use of
the phrase "substantial part" did not connote any particular quantum of
proximate cause.  This distinguishes the instant instruction from that given
in McDowell v. Davis, 104 Ariz. 69, 448 P.2d 869 (1968).  In that case, the
jury instruction stated:
         Ladies and gentlemen, another test of proximate cause
         recognized by our law may be helpful to you.  Was the
         negligent act of the party under consideration a
         material element or a substantial factor in producing
         the injury?  An act or omission cannot be a proximate
         cause if it contributes only slightly or possibly to the
         result, for a proximate cause is one which is a material
         element or a substantial factor in causing the injury.

Id. at 71, 448 P.2d  at 871 (emphasis in original).  The court emphasized
that it was the contrast between the "slightly or possibly" language and the
word "substantial" that resulted in prejudicial error.  As the court put it,
"[t]he instruction in using the word 'slightly' confirms the meaning of
'substantial' as 'abundance,' largeness as opposed to smallness."  Id. at
72, 448 P.2d  at 872.
     There was no such contrast in the instruction before us.  On the
contrary, the balance of the instruction left no doubt that "substantial
part" was not a phrase inviting any kind of quantification.  The court
instructed that, if the jury found defendant's negligence to be "a proximate
cause, in any part, of injury on the part of the Plaintiffs, then you should
find in favor of the Plaintiffs even if you find that Dr. Spector was also
responsible for the Plaintiffs' injury."  (Emphasis added).
     If one were to search the instruction for complementary or contrasting
language, the parallel use of "part" in the phrases "substantial part" and
"in any part" made clear that "substantial" in the former instance connoted
merely that which was more than trivial or inconsequential.
     We do not agree with plaintiffs that the court's instruction lent a
quantitative connotation to the word "substantial."  Therefore, it is not
necessary to comment extensively on plaintiffs' next assertion of error --
the trial court's failure to follow instruction language agreed upon by the
parties, which stated that "[i]f you should find that the action or
inaction of the Central Vermont Hospital was a proximate cause, in any part,
of injury on part of the plaintiff, then you must find in favor of the
plaintiff even if you find that Dr. Spector was equally responsible or even
more responsible for the Plaintiffs' injuries."  (Emphasis added).  Instead
of the agreed-upon language, the court used the phrase, "even if you find
that Dr. Spector was also responsible for the Plaintiff's injury."  Both
the version agreed upon by counsel and the one used by the court include the
words "proximate cause, in any part," which, again, amplify and adequately
clarify "substantial part."  The underscored words in plaintiffs' preferred
version of the instruction at most would amplify the amplification; their
absence did not dilute the impact of "in any part."  A court has wide
discretion in framing language used in a charge, and its failure to adopt
text proferred by a party -- or even language agreed upon by all -- does
not constitute reversible error as long as the instruction actually
delivered was without error.  See Currier v. Letourneau, 135 Vt. 196, 204,
373 A.2d 521, 527 (1977); General Dynamics Corp. v. Federal Pacific Electric
Co., 20 Mass. App. Ct. 677, 684, 482 N.E.2d 824, 828 (1985).
      Plaintiffs next assert that the trial court's one-time use of the
phrase "the proximate cause" tainted the instruction, confused the jury, and
prejudiced plaintiffs' case.  But the single reference to "the" proximate
cause came at the outset of the instruction and was followed by at least
eight references to "a" proximate cause or to other language that clearly
conveyed the sense of that use of the indefinite article. (FN2) The instruction
is close to that in Cody v. Marcel Electric Co., 71 Mich. App. 714, 720, 248 N.W.2d 663, 667 (1976), where the court held it was harmless error to
include a single use of the phrase "the proximate cause" where "[t]he jury
was clearly instructed that there may be more than one proximate cause and
that if a defendant's conduct is a proximate cause of the accident, he is
liable."  The court added that "[g]iven this explicit instruction, the
isolated references to 'the' proximate cause were of little consequence.
The plaintiff was not unduly prejudiced by these inadvertent errors."  Id.;
see also Gantt v. Sissell, 222 Ark. 902, 907, 263 S.W.2d 916, 919 (1954).
Plaintiffs attempt to distinguish Cody by pointing out that the Michigan
trial court "explained at length to the jury that it need not find one sole
cause for plaintiff's injuries in order to find proximate cause."
Plaintiffs' attempt, however, disregards the numerous references to "a"
proximate cause and other clarifying statements in the instruction here at
issue.  In Cody the trial court stated:  "A cause may be proximate although
it and other cause[s] act at the same time or in combination to produce the
occurrence."  Cody, 71 Mich. App. at 720, 248 N.W.2d  at 667.  This is
indistinguishable from the present instruction, where the trial court
included in the discussion of proximate cause the statement that "[w]here
two or more proximate causes combine to produce an injury, a recovery may be
had if the Defendant is responsible for any one of them, though it may not
be responsible for the others."
     In sum, the jury instructions were not so ambivalent on the issue of
proximate cause as to "open the way for the jury to follow either course
indicated."  Kinsley v. Willis, 120 Vt. 103, 111, 132 A.2d 163, 168 (1957);
see also Farmers' Exchange v. Brown, 106 Vt. 65, 69, 169 A. 906, 908
(1934). (FN3)
     Plaintiffs next argue that the following passage of the jury
instruction, relating to defendant hospital's duty of care, was "incorrect,
incomplete, incoherent, confusing, and misleading":
            A hospital is bound through its agents to exercise
         toward a patient such reasonable care as the patient's
         known condition requires with the degree of care being
         in proportion to the specific patient's known condition
         of which the hospital should have knowledge.

Plaintiffs contend that the jury could not have understood from the quoted
text whether the hospital's duty of care was limited to conditions actually
known or to those that it should have known about.
     The language was confusing, since "known condition of which the
hospital should have knowledge" is ambiguous on the question of the scope
of the hospital's duty.  However, in its answer to the first interrogatory,
the jury found the hospital negligent in its care of plaintiff, despite any
possible confusion in the language at issue.  Moreover, while plaintiffs
stress an ungrammatical and confusing statement in the charge, they give
insufficient weight to the statement immediately following the above-quoted
language:
          The hospital and its agents have no duty to intervene or
          intrude into the decisions of a private physician
          unless there is reason to know a patient is in danger
          and the physician is not taking reasonable measures to
          attend to his or her patient.  (Emphasis added).

 While the garbled sentence attempted to address the hospital's overall duty
 -- not simply that part of its duty that might be triggered by knowledge
 that a physician was not taking reasonable measures -- plaintiffs do not
 indicate, on the basis of the evidence in this case, why the quoted
 language did not suffice to give the jury the functional equivalent of the
 duty owed by the hospital.  The "reason to know" the fetus was in danger was
 the evidence of the mother's condition when she was admitted to the
 hospital, and the hospital's knowledge of Dr. Spector's failure to act
 efficaciously was the heart of plaintiffs' case.
      In addition, the court instructed the jury quite specifically about the
 consequences of a failure by defendant's employees to transmit vital
 medical information:
             If a hospital employee fails to report important
          information concerning a patient's condition to the
          physician and the omission is a proximate cause of an
          injury to the patient, the hospital may be liable for
          its employee's negligence.         
Again, the first interrogatory is strong confirmation that the jury
accepted plaintiffs' theory of negligence and that any confusion over the
extent of the hospital's duty occasioned by the one garbled sentence was
harmless error in light of the clarity of the overall instruction.
                                    II.
     Plaintiffs next contend that the trial court abused its discretion in
excluding Benjamin Chater from the courtroom during the direct examination
of Dr. John W. Goldkrand, a fetal and obstetrical expert who testified on
behalf of defendant.  Plaintiffs had not challenged a pretrial order of
another judge granting a bifurcated trial to avoid potential prejudice to
defendant caused by the child's continuous presence in the courtroom during
the liability phase of the trial.  That pretrial ruling had allowed
Benjamin Chater to be introduced to the jury but did not allow him to be
present throughout on grounds of undue prejudice or disruption.  Plaintiffs
acquiesced in that earlier ruling but contend that at the trial of the
cause against defendant hospital the court altered the scope of the earlier
order, unduly narrowing the allowable appearances of the child and doing so
without conducting a new evidentiary hearing.
     Defendant argues that plaintiffs waived objection to the trial court's
instant ruling on Benjamin Chater's presence during the testimony of Dr.
Goldkrand.  An in-chambers conference occurred on the 11th day of trial,
prompted by defense counsel's objection that Benjamin Chater's presence that
morning violated the terms of the pretrial order.  Counsel for plaintiffs
responded:
            If the Court please, a couple of points.  Number one,
         we have in fact kept his presence to the minimum.  As I
         understood the Court's original, if not order, sort of
         ground rules that your Honor suggested, and that what
         we've tried to abide by was that we would have him here
         a) not too much, b) primarily during medical testimony.
         . . . .

         . . . Our plan was not to keep him here for the whole
         morning but to have him here for probably until the
         first recess.  And then I think plans have been made to
         let him go back.  I think we've been pretty good about
         this.

            As far as the distracting goes, all the times he's
         been here in the past has been during our case.  And I
         can't help the fact that he's an appealing little kid, I
         mean it's a fact. . . .


         THE COURT:  We'll let you have the boy here when you're
         cross-examining this witness. During the presentation by
         Mr. Joslin, we'll ask that you have him out.

         [PLAINTIFF'S COUNSEL]:  I appreciate that.  I'll need a
         little time.

There is no indication in the remarks of counsel that the compromise
suggested by the court, allowing Benjamin Chater to be present during some,
but not all, of the witness's testimony, was unacceptable or that it marked
a departure from the prior ground rules.  Moreover, there is no indication
in the response of counsel to the court's ruling that the court was altering
the pretrial order or that it should have conducted a second evidentiary
hearing for that reason.  Both parties appeared to accept that the court was
applying the prior ruling to resolve a particular difference in
interpretation, and the strong inference to be taken from court's handling
of the conflict is that plaintiffs' counsel was not displeased.  Plaintiffs
had to make their opposition to the court's ruling known at trial, and they
did not do so.  In fact, counsel's parting comment might well have conveyed
the impression that the ruling was satisfactory, if not favorable, to
plaintiffs.  The complaint on appeal comes too late, and we have no occasion
therefore to reach the constitutional issues raised concerning the right of
a civil litigant to be present at all phases of his or her trial.
                                   III.
     Finally plaintiffs contend that the trial court abused its discretion
in failing to grant a new trial.  An abuse of discretion may be found "when
the trial court has entirely withheld its discretion or where the exercise
of its discretion was for clearly untenable reasons or to an extent that is
clearly untenable."  Costa v. Volkswagen of America, 150 Vt. 213, 217, 551 A.2d 1196, 1199 (1988) (quoting Lent v. Huntoon, 143 Vt. 539, 552, 470 A.2d 1162, 1171 (1983)).  Much of plaintiffs' argument on the new trial issue
recapitulates their case on proximate cause and adds no new dimension to
that issue.   The balance of plaintiffs' case is that the evidence
indicating defendant hospital's negligence was undisputed and overwhelming.
However the trial court was not free to reweigh the evidence as trier of
fact.  It was bound in considering plaintiffs' motion to view the evidence
in the light most favorable to the jury's verdict.  Gregory v. Vermont
Traveler, Inc., 140 Vt. 119, 121, 435 A.2d 955, 956 (1981); McKenna v. May,
134 Vt. 145, 148, 353 A.2d 359, 361 (1976).  Plaintiffs argue that the
evidence in favor of the hospital's negligence was undisputed, but the
critical evidence to weigh against the jury's verdict is not plaintiffs' but
that of the prevailing party, the defendant.
     "Under our case law, a verdict can be found clearly wrong and unjust if
the jury has 'disregarded the reasonable and substantial evidence' or found
against the evidence 'through passion, prejudice, or some misconstruction of
the matter.'"  Corbin v. Dickerson, No. 88-407, 1 Vt. L.W. 114, 116 (March
9, 1990) (quoting Weeks v. Burnor, 132 Vt. 603, 609, 326 A.2d 138, 141
(1974)).  Plaintiffs state the case for their own outcome, but in this
portion of their ample brief, they make no mention of the evidence tending
to support the jury's conclusion of no proximate causation.  Such evidence
includes expert testimony that the fetus was not in distress as late as 35
minutes before delivery, that the precursors to brain injury were not
present at that time, and that the damage that occurred in the last ten
minutes of the delivery process might have been avoided, had Dr. Spector
agreed to a general, instead of the more time-consuming spinal, anesthetic.
A review of the record indicates abundant evidence on both sides of the
negligence question and jury instructions amply drawn and fairly calculated
to guide the jury through its deliberations.  The trial court did not err in
denying the motion for a new trial.
     Affirmed.
                                        FOR THE COURT:




                                        Chief Justice





FN1.    Plaintiffs and defendant Spector settled their case prior to trial
of the action against defendant hospital.

FN2.    The references in the instruction that may be fairly said to serve
as a counterweight to the court's initial reference to "the proximate cause"
are, in this Court's view the following (emphasis added in all instances):
         [1] The Plaintiffs must prove that the conduct complained of
     was a cause in fact of the alleged injuries.
         [2] You have found proximate cause if it appears to you from
     the evidence in the case that the Defendant's negligence played a
     substantial part in bringing about the Plaintiff's injuries
          [3] and that the injuries to the Plaintiffs were in whole or
     in part. . .
          [4] a direct result
          [5] or a reasonably probable or natural consequence of the
     Defendant's actions. . . .
          [6]  Where two or more proximate causes combine to produce an
     injury, a recovery may be had if the Defendant is responsible for any
     one of them . . . .
          [7] If you find that the negligent action or negligent
     inactions of the Central Vermont Hospital was a proximate cause,
     in any part, of injury on the part of the Plaintiffs,
          [8] then you should find in favor of the Plaintiffs even if
     you find that Dr. Spector was also responsible for the Plaintiffs'
     injury.

FN3.     Plaintiffs raise for the first time on appeal the additional
contention that the words "legally caused" compounded the error inherent in
use of the phrase "the proximate cause."  Even if this point had been raised
below and hence preserved for appeal, plaintiffs do not demonstrate that use
of the concept of "legal cause" compounded what was surely a mistake in the
charge, corrected by clear and accurate language thereafter.