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Martinmaas v. Engelmann6/28/2000
o limit the range of error proceedings.
In Orr v. Crowder, 315 SE2d 593, 607 (WVaCtApp 1983), the court explained: "we fail to see the logic of a rule that requires a general verdict supported by one good theory of liability to be set aside. We are aware of no presumption that requires a court to assume that the jury has returned the verdict on the cause of action that was not supported by sufficient evidence. It must be remembered that in a civil case the burden of proof in order to prevail is only by a preponderance of the evidence." On the question of prejudice the court wrote:
ny supposed unfairness to the defendants arising from the adoption of the rule that permits the general verdict to be upheld if there is one valid cause of action to support it is cured by an additional corollary: that a defendant may submit a special interrogatory or verdict to require the jury to state its finding as to each theory. E.g., Codekas v. Dyna-Lift Co., 48 CalApp3d 20, 121 CalRptr 121 (1975); Colonial Stores, Inc. v. Scarbrough, 355 So2d 1181 (Fla 1978). Id.
[ ] Acquiescence in a general verdict form can be fatal to claims of error by either plaintiffs or defendants. If a party fails to request the separate submission of multiple theories, a new trial will not be granted where the jury has rendered a general verdict and the appellate court finds no error in one of the theories on which the jury was instructed. See Colonial Stores, 355 So2d at 1185-86 (explaining that the "two-issue" rule is a "rule of policy, designed to limit the scope of proceedings on review.").
[ ] As the Florida Supreme Court explained, "the remedy is always in the hands of counsel." Counsel can request a special verdict on each theory in the case and object to a general verdict. Id. at 1186. If, however, counsel has neither requested a special verdict nor objected to submitting a general verdict form to the jury, then under the rule, a general verdict cannot be reversible error. Id. See also Whitman v. Castlewood Int'l Corp., 383 So2d 618 (Fla 1980). The objection and the request will avoid the rule, even when the trial court declines the request.
[ ] Here, Engelmann did not seek a special interrogatory or object to a general verdict. As the verdict encompasses two liability issues, one of which the evidence supports, it should not be reversed. Perhaps this carries the general verdict rule to its logical extreme, but there is no claim here that the verdict amounts were excessive, the question instead being the propriety of averring as negligence rape and sexual misconduct.
[ ] Accordingly, I concur in result on Issue 1, and concur in full on the remaining questions.
AMUNDSON, Justice (dissenting).
[ ] I regretfully dissent in the cases involving Bertsch and Martinmaas because in my opinion, the law dictates that I must.
[ ] In both of the above cases, the patients testified that Dr. Engelmann sexually violated them. Further, the plaintiffs put on other bad acts evidence from another patient who testified that during a gynecological exam she had observed Dr. Engelmann in the room with his penis hanging out of his unzipped pants. This was the incident which provided the impetus of the criminal and civil cases filed against Dr. Engelmann.
[ ] Does sexual misconduct by a predator physician constitute medical malpractice? To establish a medical malpractice action, one must establish that the medical professional "breached a recognized standard of care and was thereby negligent." See Schrader v. Tjarks, 522 NW2d 205, 214 (SD 1994) (Amundson, J., concurring in part and dissenting in part). The gist of the medical malpractice
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