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Clifford v. Geritom Med9/28/2004
II. Park Nicollet, Dr. Gmitro, Nurse Duffy
In challenging the trial court's ruling regarding the Park Nicollet defendants, Geritom first argues that the court erred in dismissing the third-party claims against them.
Geritom alleged in its complaint that the Park Nicollet medical personnel were negligent because they failed to accurately and properly transmit Clifford's medication prescription to Geritom. The district court noted that the act of prescribing the wrong medication by the Park Nicollet personnel was separate in time and effect from the act of dispensing the wrong medication by Geritom, and that these actions could not have been jointly performed to cause injury to Clifford. Instead, the court reasoned, Geritom's claims against Dr. Gmitro and nurse Duffy were independent acts for which sole liability would attach, and such claims would provide Geritom with a complete defense to Clifford's claim and would remove any issue of contribution or indemnity. Therefore, the court dismissed Geritom's third-party complaint against the Park Nicollet medical personnel for failure to set forth a legally sufficient claim for relief as there was no common liability between them.
Geritom contends that it had always maintained the theory that miscommunication had occurred during the ordering of the prescription under which Park Nicollet medical personnel and Geritom had a common duty. Our review of the record convinces us, however, that Geritom failed to assert this claim in its third-party complaint. The trial court properly dismissed without prejudice Park Nicollet, Dr. Gmitro, and Nurse Duffy.
Whether to grant a new trial is within the discretion of the district court, which will not be reversed absent a clear abuse of discretion. Clifford II, 681 N.W.2d at 687. Near the end of the second trial, the district court stated that based on the evidence, it appeared that Geritom had a claim based not only on Park Nicollet's negligence in prescribing the medication, but also on other negligence, including Park Nicollet's failure to communicate properly with Geritom and failure to return a phone call to Clifford, as well as other possible negligence. The court noted that this change from the pretrial rulings was the result of evidence that had come forth at trial and its understanding of the arguments counsel would make. Consequently, at the close of the second trial, the court gave Geritom the option of adding the question of Dr. Gmitro's and nurse Duffy's negligence onto the verdict form. Geritom chose to add them to the verdict form, but the jury allocated no fault to them. On Geritom's posttrial motion claiming error on this ground, the court found it failed to demonstrate prejudice from the court's ruling. Geritom contends that it was prejudiced by the district court's action at the late stages of trial and also argues that counsel made prejudicial arguments. Geritom contended it was entitled to a new trial on these bases. Clifford has failed to show prejudice either in the trial court's decision or in arguments by counsel.
In summary, we conclude that the trial court did not err in its dismissal without prejudice of the third-party defendants nor in its denial of Geritom's motion for a third trial.
Affirmed.
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