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Butler v. Naylor9/10/1999
ng her incontinence, opined that neither the length of Butler's anal canal nor her incontinence were related to surgery performed by Dr. Naylor.
Butler, on the other hand, presented evidence that the external sphincter should not have been divided or severed. Her expert, Dr. Stephen Wilson, testified that it was substandard to divide the external sphincter. Drs. Hughes, Slawson, and Leigh testified that they do not intentionally divide the external sphincter. However, none of these doctors testified that Dr. Naylor had divided or severed Butler's external anal sphincter during surgery. Moreover, not even Butler's expert witness, Dr. Wilson, testified that the surgical procedure Dr. Naylor had performed (making a one millimeter by three millimeter incision to relax anal scar tissue) was medically improper.
Given the weight of this evidence in favor of Dr. Naylor, we conclude that the trial court's error did not create a sufficiently high likelihood that the outcome would have been different had the error not been committed.
II. JURY INSTRUCTIONS
Butler next contends that the trial court committed harmful error by giving jury instruction thirty-eight concerning alternative treatment methods.
The instruction states:
When there is more than one method of diagnosis or treatment which is recognized by a respectable portion of the medical community, and no one of the methods is used exclusively and uniformly by all practitioners in good standing, it is not negligence for a physician, in exercising that physician's best judgment, to select one of the approved methods, even if it later turns out to be a wrong selection, or one not favored by certain other practitioners.
She argues that the evidence failed to establish that the method of surgery performed by Dr. Naylor is recognized by a respectable portion of the medical community, and he was therefore not entitled to the jury instruction.
We find that there was evidence presented at trial which establishes that the surgical procedure used by Dr. Naylor is recognized by a respectable portion of the medical community. However, we need not address this issue further because jury instruction thirty-eight presents only one of several theories upon which the jury could have relied in finding for Dr. Naylor.
"When a civil case is submitted to a jury on several alternative theories and the jury does not identify which theory or theories it relied on in reaching its verdict, we may affirm the verdict if the jury could have properly found for the prevailing party on any one of the theories presented." Billings, 918 P.2d at 467 (citing Cambelt Int'l Corp. v. Dalton, 745 P.2d 1239, 1241-42 (Utah 1987) (citing Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 835 (Utah 1984)). In the present case, there are other theories stated in jury instructions on which the jury could have based the no-cause verdict, including a finding that Dr. Naylor did not breach the standard of care (jury instruction 20); that the surgery was not negligently performed (jury instruction 23); and that the surgery was not the cause of Butler's alleged bowel problems (jury instruction 24). Therefore, even if the trial court had erred by giving instruction thirty-eight, the error would be harmless as the jury could have reached the no-cause verdict on several alternative theories. Id.
CONCLUSION
We conclude that the trial court did err by admitting the page from the Zollinger text into evidence as an exhibit and allowing it to go to the jury room during deliberations. However, in light of the evidence admitted in favor of Dr. Naylor, we conclude that t
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