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RAY v. PAUL3/28/1997
[563 NW2d Page 637]
Plaintiff Lolita Ray appeals from an adverse jury verdict and resulting judgment dismissing the medical malpractice claim she brought against defendant Dr. Mitchell R. Paul on behalf of her child Kyle Ray. We affirm.
I. Background facts and proceedings.
Ray's three-year-old child Kyle was injured when he was hit by a truck in Fort Madison on May 20, 1991. Dr. Paul treated Kyle's broken leg by placing him in a body cast. When the cast was subsequently removed, a number of skin ulcerations were discovered on Kyle's body, necessitating additional treatment.
Because the truck driver was at fault and uninsured, Ray turned to her auto insurer, Westfield Insurance Co., for coverage to pay the damages resulting from the accident. Westfield paid Ray $75,000 under the uninsured motorist provisions of Ray's policy. In exchange for receipt of these benefits, Ray was required to sign a release. The terms of the release provided:
"Claimant for herself and insured release . . . Insurance Company from any and all liability for claims . . . based on damages . . . including present and future damages for all known or unknown claims for the bodily injury or personal injuries, loss of services and society, medical expenses, emotional trauma and death and consequences thereof. . . ."
After settling with Westfield, Ray initiated this action seeking damages from Dr. Paul for Kyle's injuries allegedly caused by Dr. Paul's medical negligence. Paul eventually moved for summary judgment citing the terms of the foregoing release. Paul argued that Ray's settlement and release included compensation for all damages resulting from the May 20, 1991, accident, including those caused by negligent medical treatment. The district court denied Paul's motion finding disputed issues of fact concerning the intent of the parties to the release and whether Ray and her child received full compensation for their respective damages.
Prior to trial, Ray filed a motion in limine seeking exclusion of any evidence or reference to her settlement with Westfield or the terms of the release she signed. She argued that this evidence was inadmissible under the collateral source rule excluding evidence of payments received from a third party. The district court denied Ray's motion. Ray's application for interlocutory appeal was denied. Ray introduced the settlement and release as part of her case and made no objection to the admission of this evidence at trial.
During jury selection, two jurors indicated that Dr. Paul's professional status would make it difficult for them to decide the case impartially. The first of these jurors was excused without comment. When the second juror expressed this concern, the court asked him if his concerns were sincere or whether he was simply seeking to avoid service. Although the juror was excused, he was instructed to remain in the courtroom so the court could speak with him following completion of jury selection.
After the case was submitted to the jury, the court received a note from the jury foreman. In the note the foreman informed the court that one of the jurors expressed an opinion concerning Dr. Paul's professional reputation and also told other jurors that the juror's son had been successfully treated by Dr. Paul. The court denied Ray's motion for a mistrial and, following consultation with counsel, this juror was excused. The jury was instructed to disregard his remarks and rely on the evidence presented at trial.
The special verdict form returned by the jury included the jury's negative answer to an interrogatory asking, "Was Dr. Mitchell H. Paul negligent?" Ray's moti
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