Pirdair v. Medical Center Hospital of Vermont

Pirdair v. Medical Center Hospital of Vermont (2000-443); 173 Vt. 411;
800 A.2d 438

[Filed 29-Mar-2002]

[Motion for Reargument Denied 25-Apr-2002]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2000-443


Soozan Pirdair, et al.	                         Supreme Court

                                                 On Appeal from
     v.	                                         Chittenden Superior Court


Medical Center Hospital of Vermont	         January Term, 2002


Matthew I. Katz, J.

John F. Evers and Devin McLauglin of Langrock Sperry & Wool, Middlebury, 
  and Michael P. Hall of Hall, Hess, Stewart, Murphy & Brown, Manchester, 
  New Hampshire, for Plaintiffs-Appellants.

John Davis Buckley and Peter B. Joslin of Theriault & Joslin, P.C., Montpelier,
  for Defendants-Appellees.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J.    Plaintiffs appeal from the judgment of the superior court
  following a jury  verdict in favor of defendants on their claim for medical
  malpractice.  Plaintiffs Sandra Baird, the  administrator of the estate of
  Ahmad Sharifian and guardian for Mr. Sharifian's wife, Soozan Pirdair,  and
  Mary Kehoe, the guardian of Mr. Sharifian's son Boback Sharifian, pursued a
  claim brought  against defendants Dr. Bela Ratkovits, Associates in
  Radiology and Fletcher Allen, as successor in  interest to Medical Center
  Hospital of Vermont, for failing to detect a subdural hematoma that 

 

  resulted from a car accident involving Mr. Sharifian. (FN1)  Plaintiffs
  argue the trial court erroneously  denied their motions for a new trial
  based on newly discovered evidence and based on their  contention that the
  verdict was against the great weight of the evidence.  Plaintiffs also
  argue that the  trial court committed reversible error by admitting certain
  statements of Mr. Sharifian made prior to  his death.  We affirm.

       The following facts are undisputed.  Mr. Sharifian, his wife and son
  were involved in a car  accident on July 3, 1994.  He was brought to
  Medical Center Hospital of Vermont and treated for  various injuries,
  including a broken leg and contusions on his head, as well as a fracture of
  one of the  vertebrae in his neck.  He was also given a CAT scan that day
  because of concern regarding a head  injury.  The CAT scan was then
  evaluated on July 5 by Dr. Ratkovits of Associates in Radiology,  which
  contracted with MCHV to read the hospital's CAT scans.  Although the CAT
  scan showed  signs of a small subdural hematoma on the right side of Mr.
  Sharifian's head, Dr. Ratkovits did not  detect it.  MCHV continued to
  treat Mr. Sharifian for his other injuries.

       On July 7, Mr. Sharifian fell to the floor after using a walker to get
  to the bathroom in the  hospital room he shared with his wife, who was also
  being treated for a broken vertebra from the  accident.  When hospital
  personnel responded to a scream from his wife, they found him in a non-
  responsive state on the floor, with his head against the wall.  A CAT scan
  revealed a large subdural  hematoma on the right side of his head, and Mr.
  Sharifian was rushed to surgery.  Surgery revealed  two ruptured veins in
  Mr. Sharifian's brain.  Despite the surgery, Mr. Sharifian suffered severe
  brain  damage and remained in a coma for fifteen months before he was
  finally taken off life support in  September 1995.

 

       Ms. Pirdair brought suit against defendants as the administrator of
  her husband's estate, on  behalf of the couple's son and on behalf of
  herself.  Eventually, she was replaced as administrator of  the estate, and
  a guardian ad litem was appointed for both her and her son as the toll of
  the events  had rendered her unable to proceed on her own.  The case
  proceeded to trial, which resulted in a jury  verdict in favor of
  defendants.  Plaintiffs now appeal.

       In support of their claim that the trial court improperly denied them
  relief from judgment and  a new trial, plaintiffs make two related
  arguments that center on the interpretation given the July 7  CAT scans by
  the parties' experts and Mr. Sharifian's treating doctors.  They argue that
  newly  discovered evidence that sheds light on the proper interpretation of
  the scans entitles them to a new  trial under V.R.C.P. 60(b)(2) and that
  this new evidence reveals that the opinions of defendants'  experts
  regarding interpretation of the scans amounted to misrepresentations, thus
  entitling them to a  new trial under V.R.C.P. 60(b)(3).  We review the
  trial court's decision on such motions for an abuse  of discretion.  See,
  e.g., Stalb v. Stalb, 168 Vt. 235, 248, 719 A.2d 421, 429-30 (1998)
  (reviewing  denial of Rule 60(b) motion based on newly discovered
  evidence).

       Following the trial in this case, one of the plaintiffs' experts
  treated a patient with a subdural  hematoma that appeared to have a mixed
  density on a CAT scan taken four days after the trauma  giving rise to the
  hematoma.  Plaintiffs argue specifically that they should be relieved from
  the final  judgment in this case and given an opportunity to present these
  CAT scans to a jury in a new trial in  order to support the opinions of
  their experts regarding the mixed density appearance of Mr.  Sharifian's
  July 7 CAT scans.  They also argue that this piece of evidence demonstrates
  that the  opinions of defendants' experts that a four-day-old hematoma
  would not appear to have a mixed  density were misrepresentations.  The
  trial court denied plaintiffs' motion on the basis that, even 

 

  assuming the evidence could be characterized as "newly discovered," it
  merely went to the weight  and credibility of the expert opinions.  The
  trial court also noted that the opinions of defendants'  experts on the
  appearance of a four-day-old subdural hematoma were only a minor part of
  the  defense's case and were not central to the theories they litigated. 
  Thus, plaintiffs had failed to  demonstrate that letting the judgment stand
  would result in a miscarriage of justice.  See Bingham v.  Tenney, 154 Vt.
  96, 99, 573 A.2d 1185, 1186 (1990) (rule allowing for relief from judgment
  is  invoked to prevent injustice). 

       We discern no abuse of discretion.  Both parties presented substantial
  evidence in support of  their respective experts' opinions, which also
  served to undermine opinions to the contrary.   Additional evidence such as
  the case study now offered by plaintiffs, while potentially helpful, would 
  be cumulative on this point and thus should not operate to relieve them
  from final judgment.  See 11  C. Wright et al., Federal Practice and
  Procedure § 2859, at 307-08 (2d ed. 1995) (judgment will not  be reopened
  if newly discovered evidence is cumulative and would not change result);
  see also  United States v. Int'l Bhd. of Teamsters, 179 F.R.D. 444, 447-48
  (S.D.N.Y. 1998) (noting that new  evidence that is merely cumulative or
  impeaching is not ordinarily a sufficient basis for relief from  judgement
  and denying party relief from judgment based on newly discovered
  impeachment  evidence).  Otherwise, any newly discovered evidence in a
  particular field that incrementally bolsters  or rebuts an expert's opinion
  would justify a new trial, thereby undermining the finality of judgments 
  in cases involving a "battle of experts."  Cf. Mitchell v. United States,
  141 F.3d 8, 18-19 (1st Cir.  1998) (affirming denial of Rule 60(b) motion
  based on recently published article in medical journal  supporting party's
  expert testimony regarding standard of care in medical malpractice action,
  noting  article's marginal helpfulness regarding the specific case before
  the court).

 

       Furthermore, we are not prepared to say that an individual medical
  case that appears to be at  odds with an expert's generalized opinion in a
  highly specialized and recondite discipline such as  neuroradiology somehow
  renders that opinion a "misrepresentation" of fact.  Cf. Jones v. Lincoln 
  Elec. Co., 188 F.3d 709, 734 (7th Cir. 1999) (noting trial court's
  conclusion that "newly discovered  evidence" merely demonstrated a
  difference of opinion among experts and that "such a scholarly and 
  subjective disagreement was not a sound basis for finding that [defendants'
  expert] lied on the  witness stand").  Nevertheless, even if we were to
  accept that assertion, the plaintiffs as the moving  party must still
  demonstrate that the misrepresentation prevented them from fully and fairly 
  presenting their case.  See C. Wright et al., supra § 2860, at 313.  First,
  as the trial court noted,  defendants' theory that a four-day-old hematoma
  should not manifest a mixed density appearance on  a CAT scan did not
  constitute the gravamen of their defense.  Rather, they focused on the
  clinical  observations of Mr. Sharifian displaying a high level of
  functioning, physically and cognitively, and  their incompatibility with a
  subdural hematoma the size of the one shown on the July 7 CAT scans.  
  Secondly, while the issue of the appearance of a four-day-old subdural
  hematoma was not even  central to defendants' case, plaintiffs still had
  the opportunity to cross-examine defendants' experts  on this point, as
  well as offer their competing experts' opinions to the contrary, which is
  exactly what  they did.  Cf. Jones, 188 F.3d  at 735-36 (affirming trial
  court's denial of Rule 60(b) motion on basis  that subtracting expert
  opinion that plaintiff asserted was false would not materially alter
  outcome  where plaintiff had opportunity to test opinion on
  cross-examination, offered his own expert  testimony to the contrary and
  testimony was related to defendants' alternate theory of the case, not  the
  central theory litigated by the parties).  Rule 60(b) is not designed to
  afford parties simply a  second, better opportunity to litigate issues
  already contested and decided in a previous proceeding. 


 

  Cf. Darken v. Mooney, 144 Vt. 561, 566, 481 A.2d 407, 411 (1984) (Rule
  60(b) does not operate to  afford parties a chance to relitigate matters in
  which there was ample time to prepare).

       Plaintiffs also argue that the trial court erred in denying their
  motion for a new trial under  V.R.C.P. 59 based on their assertion that the
  jury's verdict in this case was against the great weight of  the evidence. 
  The trial court's decision on a Rule 59 motion is likewise reviewed for an
  abuse of  discretion.  Brueckner v. Norwich Univ., 169 Vt. 118, 132, 730 A.2d 1086, 1097 (1999).  When  considering a motion for a new trial in such
  circumstances, a trial court must view the evidence in  the light most
  favorable to the jury verdict.  Hardy v. Berisha, 144 Vt. 130, 133, 474 A.2d 93, 95  (1984).  "'Only after the evidence is so viewed, and the
  verdict is shown to be clearly wrong and  unjust because the jury
  disregarded the reasonable and substantial evidence, or found against it, 
  because of passion, prejudice, or some misconception of the matter, can the
  court exercise its  discretion to set aside the verdict.'"  Gregory v. Vt.
  Traveler, Inc., 140 Vt. 119, 121, 435 A.2d 955,  956 (1981) (quoting
  McKenna v. May, 134 Vt. 145, 148, 353 A.2d 359, 361 (1976)); see also
  Hardy,  144 Vt. at 134, 474 A.2d  at 95 ("it is the protected duty of the
  jury to render a verdict and a judge  may not disturb that verdict unless
  clearly wrong") (citations omitted).  We accord the trial court's  ruling
  "all presumptive support" similar to that owed the jury verdict.  Gregory,
  140 Vt. at 121, 435 A.2d  at 956.

       In a case such as this where the jury was asked simply to issue a
  general verdict, plaintiffs  must demonstrate that the jury disregarded
  substantial evidence in their favor on each contested  element necessary
  for recovery and that a verdict based on a finding in defendants' favor on
  any one  of these elements was clearly wrong.  Cf. Contractor's Crane
  Serv., Inc. v. Vt. Whey Abatement  Auth., 147 Vt. 441, 446, 519 A.2d 1166,
  1171 (1986) (where defendants had not requested a special 

 

  verdict form and plaintiff advanced several theories of recovery,
  defendants must demonstrate error  affecting all theories of recovery for
  reversal; if any single theory is supported by the evidence and is 
  untainted by error, this Court must affirm).  The parties in this case
  contested both whether Dr.  Ratkovits's failure to discern the subdural
  hematoma fell below the standard of care and whether this  failure was the
  cause of the events of July 7 and the ensuing consequences.  There is
  evidence  supporting the jury's verdict in favor of defendants on both
  issues.

       With respect to whether Dr. Ratkovits's failure to identify the
  subdural hematoma evidenced  on the July 3 CAT scan fell below the standard
  of care, one of defendants' experts, a professor of  radiology at Dartmouth
  Medical School and a neuroradiologist at Dartmouth-Hitchcock Medical 
  Center, unequivocally stated that the failure was not a deviation from the
  standard of care and that an  individual could "easily miss" the subdural
  hematoma on the July 3 scans and still be practicing  within the standard
  of care for neuroradiologists.  Another of defendants' experts, a
  neurosurgeon and  former chairman of nuerosurgery at Dartmouth-Hitchcock,
  after looking at the July 3 CAT scans of  Mr. Sharifian, stated that he
  probably would have missed the subdural hematoma himself. 

       With regard to whether the hematoma evidenced on July 3 was the cause
  of the catastrophic  events of July 7, several of defendants' experts,
  along with Mr. Sharifian's attending neurosurgeon,  were of the opinion
  that, based on all the available evidence, the large hematoma evidenced on
  the  July 7 CAT scan was caused by an independent event, such as a fall in
  the bathroom.  Specifically,  Mr. Sharifian's attending neurosurgeon
  testified that the blood he observed in the course of surgery  on July 7
  was  consistent in color with a new bleed, rather than a gradual bleed over
  the course of  several days.  Furthermore, the surgeon's testimony agreed
  with that of defendants' experts that Mr.  Sharifian's functioning on July
  6 and the morning of July 7, as reported by nurses and a physical 

 

  therapist, was completely at odds with a hematoma that had gradually
  expanded to the size of that  depicted on the CAT scan performed after Mr.
  Sharifian was found on the floor of the bathroom.   Even one of plaintiffs'
  experts testified that, although there are exceptions, looking at the July
  7 scans  alone, he would expect Mr. Sharifian to be exhibiting clinical
  abnormalities and to be significantly  impaired in his functioning had he
  been suffering from a hematoma the size of the one on the scans  prior to
  his going into the bathroom.  Defendants also presented testimony by a
  neuropathologist that  a pathology slide taken from the material evacuated
  during the July 7 surgery was consistent with  Mr. Sharifian suffering two
  separate events, as the blood cells on the slide were of distinctly two 
  different ages.  In sum, viewing the evidence in the light most favorable
  to the jury's verdict, we  cannot say the trial court abused its discretion
  in refusing to set aside the verdict.

       Plaintiffs' last claim of error relates to a statement made by Mr.
  Sharifian in the course of  interacting with hospital personnel.  Prior to
  trial, plaintiffs sought to exclude under V.R.E. 403 a  statement by Mr.
  Sharifian that he felt guilty about the car accident involving his family. 
  The  statement was recorded by his physical therapist in her progress
  notes.  Defendants argued in  opposition that the statement reflected a
  high level of cognitive functioning and was probative on the  point of
  whether Mr. Sharifian was exhibiting clinical symptoms of a gradually
  expanding  hematoma.   The trial court reserved ruling on the matter until
  trial.  At trial, the court ruled that the  unredacted progress notes could
  come in, determining that the prejudicial potential of the statement  was
  equivocal and that Mr. Sahrifian's statement was probative of cognitive
  functioning, which was  an issue contested by the parties.  The court
  issued a limiting instruction, however, admonishing the  jury that fault
  for the underlying car accident was not an issue in the case and that,
  regardless of fault  for the car accident, Mr. Sharifian was still entitled
  to proper medical care.  Given the trial court's 

 

  limiting instruction, see State v. Shaw, 149 Vt. 275, 279, 542 A.2d 1106,
  1108 (1987) (noting  presumption that jury abides by the instructions of
  the trial court), we discern no abuse of discretion,  nor reversible error
  in admitting the unredacted report, see State v. Percy, 158 Vt. 410, 415,
  612 A.2d 1119, 1123 (1992) (noting a discretionary ruling admitting
  relevant evidence under Rule 403 is given  considerable latitude on appeal
  and the burden to show an abuse of discretion is heavy).

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Fletcher Allen settled with the plaintiffs and is no longer a party
  to these proceedings.