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Harding v. Deiss6/27/2000
APPEAL FROM: District Court of the Third Judicial District, In and for the County of Deer Lodge, The Honorable Ted L. Mizner, Judge presiding.
Submitted on Briefs: January 13, 2000
Marsha Harding (Appellant) appeals from the denial by the Third Judicial District Court, Deer Lodge County, of her motion for a mistrial, and its issuance of a jury instruction on comparative negligence. We reverse.
We restate Appellant's issues on appeal as follows:
I. Did the District Court err in allowing Respondents to present argument and jury instructions on comparative negligence?
II. Did the District Court err in preventing Appellant from addressing the issue of comparative negligence in her closing argument?
III. Were statements made by defense counsel in the jury's presence sufficiently objectionable to warrant a mistrial?
STATEMENT OF FACTS
On August 3, 1994, Appellant's daughter, Candice Shuck (Candice), went horseback riding at the Fairmont Stables near Anaconda, Montana. Candice had asthma, was allergic to horses, and had a long medical history of breathing difficulties. During the ride she began to have trouble breathing and eventually collapsed. Two of the stables' employees administered CPR at the scene and Candice was transported by ambulance to the Anaconda Hospital emergency room where she was placed under the care of Dr. Zachory Deiss (Dr. Deiss). The next day she was transported to St. James Hospital in Butte, Montana, and placed under the care of Dr. Glenn Sublette (Dr. Sublette). Candice's family then brought in neurosurgeon Dr. Pius Baggenstos who cared for Candice until her death on August 11, 1994.
Following Candice's death, Appellant brought a wrongful death and survivor action alleging medical negligence by Dr. Deiss and Dr. Sublette (Respondents). A jury returned a verdict in Respondents' favor.
I. Did the District Court err in allowing the Respondents to present argument and jury instructions on comparative negligence?
The issue before the jury in this medical malpractice case was whether Candice's irreversible brain injury occurred before or after she arrived at the Anaconda hospital. Appellant argued Respondents were negligent in their treatment of Candice by failing to intubate her immediately upon her arrival at the hospital, and that their negligence caused Candice's injury and death. Respondents claimed that Candice had already suffered a severe brain injury due to oxygen deprivation brought on by her asthma attack and it was her own negligence, not the negligence of Respondents, which caused her death.
Appellant asserts that the conduct of a patient can never be an issue in a claim of medical malpractice, and the issue of whether Candice was negligent should not have been submitted to the jury; whether Candice did something wrong before she was rendered unconscious is irrelevant to whether the Respondents were later negligent in her medical care. Appellant specifically argues that Court Instructions Nos. 11 and 12 should not have been given to the jury. Court Instruction No. 11 stated:
egligence on the part of Candice Shuck does not bar recovery of the estate of Candice Shuck unless Candice Shuck's negligence was greater than the combined negligence of the defendants. However, the total amount of damages that the estate of Candice Shuck would otherwise be entitled to recover will be reduced by the court in proportion to the amount of negligence you attribute to Candice Shuck.
Court Instruction No. 12 read:
he defendants have the burden of proving that the Plaintiff Candice Shuck wa
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