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O'Donnell v. HCA Health Services of New Hampshire9/8/2005
prior incidence of shoulder dystocia. Dr. Finkelstein gave a long answer that concluded,
[one should have] explained everything to the patient so that they have the right choice to do a cesarean section, which in fact would be the choice by many physicians and recommendations by many physicians to do, as was in fact the choice in a subsequent pregnancy when she had her third child.
This reference was not elicited by counsel's question. Nor was it a major theme of the doctor's testimony.
The defendants had previously moved in limine to exclude all references to Melissa's subsequent delivery by cesarean section. The court had taken the matter under advisement based upon the belief that the defendants might argue that brachial plexus injuries occur in cesarean section deliveries as well. Following Dr. Finkelstein's remark, the defense requested a mistrial and that motion was denied. To justify a mistrial, remarks must be more than merely inadmissible or inappropriate; they must constitute an irreparable injustice that cannot be cured by jury instructions. Murray, 149 N.H. at 268. The trial court offered to give a limiting instruction, but that offer was declined by defense counsel. We conclude that any prejudice that might have resulted from Dr. Finkelstein's unsolicited remark could have been cured by a jury instruction. Accordingly, the trial court acted within its discretion by denying the motion for mistrial.
Affirmed in part; reversed in part; vacated in part; and remanded for a new trial on damages for Melissa O'Donnell.
BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ., concurred.
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