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Young v. Horton6/10/1993
Rehearing Denied July 26, 1993.
, 50 St.Rep. 662
Submitted on Briefs November 24, 1992.
This is an appeal from a Fourth Judicial District Court, Missoula County, jury verdict in a medical malpractice action.
There are several issues on appeal:
1. Was there sufficient evidence to support the jury's verdict that Respondent Dr. Vern H. Horton (Horton) obtained informed consent for the surgery from Appellant Lucille Young (Young)?
2. Were expert opinion and medical journal articles erroneously admitted on the issue of memory and credibility?
3. Did the court abuse its discretion when it refused to allow the Appellants Lucille and Laurence Young (Youngs) to ask hypothetical questions about the law during voir dire?
4. Were the parties affected by a recess of 5 days and one additional day later, during the trial and if so, was Appellants' right to a fair trial prejudiced because of the recesses?
Lucille Young began experiencing pain in her right leg after walking and when she asked her family doctor, Doctor Coriell about it, he determined that she was suffering from restriction of arterial circulation in the leg. He referred her to Horton for diagnosis and treatment of the problem.
Horton scheduled an arteriogram for Young and when he obtained the results, prescribed surgery to alleviate the condition. Horton performed an aorto-bifemoral bypass on March 3, 1988 at Missoula Community Hospital. As a complication of the surgery, Young suffered a thrombosis of the anterior spinal artery, resulting in paraplegia. The complaint in this action was filed on February 26, 1990.
1. Informed Consent
Youngs argue that there was insufficient evidence for the jury to conclude that Horton obtained informed consent. We cannot agree.
This Court's function in reviewing jury verdicts is necessarily very limited. We must review the evidence in a light most favorable to the prevailing party to determine whether substantial evidence supports the jury's verdict. This Court cannot reweigh the evidence or disturb the findings of a jury unless that evidence is so inherently impossible or improbable as not to be entitled to belief.
Sizemore v. Montana Power Company (1990), 246 Mont. 37, 48, 803 P.2d 629, 636 (citations omitted).
Horton testified that he advised Young of the risks of the surgery, such as death, lung damage, and problems with her heart or the graft or bleeding when he spoke with her and her husband, Laurence, on March 2, 1988 in her hospital room. Dr. Golding, one of Horton's medical experts, stated that "his discussion . . . covers the significant risks of the operative procedure and would be the standard discussion that a surgeon would have with the patient prior to the surgery." Dr. Szilagyi, Horton's other medical expert, stated that " ccording to the record, Dr. Horton informed the patient and her husband fully in complete accordance with what now is generally regarded as duty of the surgeon."
Although the Youngs dispute that there was ever any discussion about the risks of the operation, "when conflicting evidence exists, the credibility and weight given to the conflicting evidence is within the jury's province." Whiting v. State (1991), 248 Mont. 207, 213, 810 P.2d 1177, 1181. " his Court will not overturn its determination by weighing conflicting evidence on appeal." Davis v. L.D.S. Church (1990), 244 Mont. 61, 68, 796 P.2d 181, 185.
The jury concluded that Horton obtained Young's informed consent before he performed the surgery. We conclude that there is
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