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Walker v. MaineGeneral Medical Center3/27/2002
Reporter of Decisions
Argued: January 10, 2002
Patricia Walker appeals from a judgment entered in Superior Court (Kennebec County, Studstrup, J.) in favor of MaineGeneral Medical Center after two jury trials. The hospital cross-appeals. Patricia Walker argues that the court should have awarded her over $1.2 million in damages for the death of her husband, Ralph Walker Jr., based on the jury verdict in the first trial. She claims that the court erred in ordering a new trial due to jury confusion on the issue of comparative negligence. The new trial resulted in a verdict for the hospital. We affirm the judgment without reaching the cross-appeal.
I. BACKGROUND
On June 27, 1994, Dr. Eric Omsberg performed back surgery on Ralph Walker at MaineGeneral Medical Center, then known as Mid-Maine Medical Center. Ralph was discharged on June 29, with instructions from Dr. Omsberg and the hospital to have extremely limited activity for two weeks and to watch for and report to the hospital any indication of infection. He was also given a prescription for an anti-inflammatory steroid that, unbeknownst to him, could mask signs of infection. On July 5, the doctor's secretary telephoned the Walker home and spoke to Patricia Walker. Patricia reported no problems, but according to the secretary, she stated that Ralph was not home.
Dr. Omsberg paid the hospital to provide his answering service for evenings and weekends. The answering service's records indicated that it received a call on July 10 from or regarding Ralph, reporting severe pain, redness, and swelling. According to Dr. Omsberg, he never received this message, and the hospital and Dr. Omsberg contended at trial that the call had actually been made on July 14. Except for the putative July 10 telephone call, Ralph and Patricia did not communicate with the hospital or Dr. Omsberg between July 5 and July 14.
On July 13, Ralph had pain and chills. That night the surgical wound was seeping discharge. On the morning of July 14, Patricia telephoned the hospital to report Ralph's symptoms. She was told to call the doctor's office, and in a second conversation with the hospital she was told to bring Ralph to the hospital at 3 p.m. At that time he was seen by Dr. Omsberg and readmitted to the hospital with a severe infection. It is undisputed for purposes of this appeal that there was sufficient evidence for the jury to find that the hospital provided negligent care after Ralph's readmission. He died the next morning due to ventricular fibrillation.
In 1997, Patricia brought a malpractice action individually and as personal representative of Ralph's estate, on behalf of herself and her minor sons, against the hospital and Dr. Omsberg. The case was first tried to a jury in September 2000. The verdict form was drafted by Patricia to reflect the court's rulings at an unrecorded charging conference. The court instructed the jury on the defense of comparative negligence without making a distinction between the two defendants. The comparative negligence instruction permitted the jury to reduce the total damages to a final amount, whereas the court's instruction on how to complete the verdict form referred to "what reduction there should be to the damages." Immediately following the court's instruction to the jury, Patricia objected to the giving of the instruction on comparative negligence. She gave as her basis for the objection that comparative negligence had not been generated by the evidence and that it was foreclosed by the testimony of one of the expert witnesses.
The jury first returned an inconsistent verdict, apparently apportioning damages between Dr. Omsberg and
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