Goddard v. Hickman

685 P.2d 530, 1984 Utah LEXIS 842

• Court: Utah Supreme Court
• Decided: May 1, 1984
• Docket: 18383
• Status: Published

Opinions

STEWART, Justice:

The plaintiff, Beverly Goddard, brought this medical malpractice case against the defendant, Dr. Grant Hickman, for negligence in performing a subcutaneous mastectomy on the plaintiff. A jury found for the plaintiff and awarded damages in the amount of $200,000. The trial court granted the defendant’s motion for a new trial. Prom that order, the plaintiff appeals.

The defendant is a plastic surgeon practicing in Salt Lake City. In 1979, the plaintiff went to the defendant because she had a lump in her left breast, some firmness in her right breast, and was worried that the lumps might be warning signs of breast cancer. A physical examination and information supplied by the defendant identified the following indications favoring surgery: (1) a lump in the plaintiff’s left breast; (2) firmness in her right breast; (3) a history of breast cancer in the plaintiff’s family; and (4) an unusual fear of cancer (cancer-phobia). The defendant did not, however, perform any of the following diagnostic procedures: a biopsy of the breast tissue; an x-ray mammogram; a xeroxmammo-gram; or a thermal mammogram. All these procedures were known to the defendant and available in the Salt Lake community at that time.

Based on the above indications, the defendant recommended to the plaintiff that she undergo a subcutaneous mastectomy of both breasts, which would remove approximately 90% of the breast tissue and replace it with a prosthetic implant. The purpose of the subcutaneous mastectomy is to reduce the possibility of future breast cancer in women who have a high risk of developing breast cancer.

The plaintiff agreed to the operation, and signed an informed consent form. After the operation, the plaintiff’s breasts were disfigured and she experienced pain and firmness in her breasts. The defendant determined that the implants were defective, thus requiring a second operation. Again the plaintiff experienced pain and infection in her breasts. Ultimately three more operations were required to complete the procedure successfully. During this period, the plaintiff experienced continued physical discomfort, depression, and anguish over her condition.

The plaintiff sued the defendant, alleging that he was negligent in (1) failing to perform a biopsy or similar diagnostic procedure before recommending the surgery; (2) recommending a subcutaneous mastectomy; and (3) failing to inform her of the possible complications of the surgery. At trial, the testimony of the expert witnesses was in conflict as to the standard of care for diagnosing the plaintiffs condition. The $200,000 jury verdict included both special and consequential damages.

The defendant moved for a judgment n.o.v. on the ground that no substantial evidence supported the verdict. Also, he moved for a new trial on all issues on the ground that the damage award was so excessive as to indicate that it was produced by passion or prejudice. The trial court denied the motion for a judgment n.o.v., but granted the motion for a new trial on the grounds that:

[T]he damages awarded by the jury were grossly excessive indicating clearly that the verdict resulted from passion or prejudice, that the entire verdict is therefore tainted with improper motivation which denied the parties a fair trial and that the jury misapplied or failed to take into account proven facts, misunderstood or disregarded the law and made findings clearly against the evidence. [Emphasis added.]

The italicized language in the above quote is taken almost verbatim from a concurring opinion in Holmes v. Nelson, 7 Utah 2d 435, 441, 326 P.2d 722, 726 (1958). In that case this Court sustained the granting of a new trial pursuant to Utah R.Civ.P. 59(a)(6), “[¡Insufficiency of the evidence to justify the verdict .... ” Given the source of the above italicized language, and the import of the words “the jury ... failed to take into account proven facts, ... and made findings clearly against the evidence,” we conclude that a basis of the trial court’s ruling in this case was Utah R.Civ.P. 59(a)(6).

A trial court has broad latitude in granting or denying a motion for a new trial, and will not be overturned on appeal absent a clear abuse of discretion. E.g., Nelson v. Trujillo, Utah, 657 P.2d 730 (1982); Chournos v. D’Agnillo, Utah, 642 P.2d 710 (1982); Lembach v. Cox, 639 P.2d 197 (1981). When a new trial is granted based on the weight of the evidence, the standard for reviewing the trial court’s ruling is much narrower than the trial court’s standard in granting the new trial. The trial judge may grant a new trial only if the jury’s verdict is so contrary to the manifest weight that the trial judge “cannot in good conscience permit it to stand." Holmes v. Nelson, 7 Utah 2d 435, 441, 326 P.2d 722, 726 (1958) (concurring opinion of Crockett and Wade, JJ.). Accord Brown v. Johnson, 24 Utah 2d 388, 391, 472 P.2d 942, 944 (1970); Hyland v. St. Mark’s Hospital, 19 Utah 2d 134, 427 P.2d 736 (1967); King v. Union Pacific Railroad Co., 117 Utah 40, 212 P.2d 692 (1949); 6A J. Moore, Moore’s Federal Practice 1159.08[5] (1983). See also Efco Distributing, Inc. v. Perrin, 17 Utah 2d 375, 412 P.2d 615 (1966).

Even though a trial judge may disagree with a verdict, mere disagreement is not sufficient reason to order a new trial. The power of a trial judge to order a new trial is to be used in those rare cases when a jury verdict is manifestly against the weight of the evidence. Because there is inherent tension between the right of a litigant to have a jury decide a case and the right of a trial judge to order a new trial in the interests of justice and because of the added expense and inconvenience of a new trial, the granting of “a new trial on an evidentiary basis under Rule 59(a)(6) should be exercised with forebearance.” Nelson v. Trujillo, Utah, 657 P.2d 730, 732 (1982).

The standard of appellate review of an order for a new trial was recently stated in Nelson v. Trujillo, supra:

Where the trial court has granted the motion for new trial, its decision will be sustained on appeal if the record contains “substantial competent evidence which would support a verdict for the [moving party].”

Id. at 732, quoting King v. Union Pacific Railroad Co., 117 Utah 40, 53, 212 P.2d 692, 698 (1949) (emphasis deleted). Accord Pollesche v. Transamerican Insurance Co., 27 Utah 2d 430, 497 P.2d 236 (1972); Wellman v. Noble, 12 Utah 2d 350, 366 P.2d 701 (1961). A different standard applies when the appeal is from a denial of a motion for a new trial. Nelson v. Trujillo, supra, at 732.

We note at the outset that the jury verdict was amply supported by the evidence. Nevertheless, the defendant adduced substantial testimony which would have supported a verdict in his favor. The following evidence supported defendant’s judgment to perform surgery. The plaintiff was very concerned about the possibility she might develop breast cancer. She testified that the cause of her concern was because she had a lump in her breast, and because she thought her grandmother had died of breast cancer. Before contacting the defendant, the plaintiff visited Dr. Brian Rasmussen. His notes of that visit state that plaintiff told him that “her grandmother had had breast cancer.” In addition to visiting Dr. Rasmussen, the plaintiff visited Dr. John Upchurch and expressed the same fear of developing cancer.

The patient first visited the defendant, Dr. Hickman, on January 29, 1979. The plaintiff again related her concern about developing cancer. She told him that she had a lump and some pain in the left breast. Dr. Hickman verified the existence of the lump by examination, and also found firm tissue in the right breast.

The plaintiff also told Hickman, according to his testimony, that her grandmother died of breast cancer. On this point, Hickman’s testimony was based on a typewritten patient record that he dictated on February 12, 1979. The dictated record also indicated that the plaintiff had told Hickman that biopsies had been performed on many benign tumors found in her mother’s breasts.

The plaintiff’s testimony substantiates in part Dr. Hickman’s testimony. She testified that she was very concerned about the lump in her breast; that she went to Dr. Rasmussen and Dr. Upchurch, and then Dr. Hickman; and that during the course of the conversation, “he asked me about my family history and I told him that I thought my grandmother had died of breast cancer.”

Two medical experts, Dr. Fairbanks and Dr. Dingman, testified that given the indications for surgery in this case, Dr. Hickman complied with the accepted standard of care practiced by plastic surgeons in this community in recommending surgery. When asked why he held this opinion, Dr. Fairbanks gave the following reasons:

[Dr. Hickman] had indications. He had a patient with a lump in her breast. He had a positive family history. He had cancerphobia. And, it is my opinion that a physician must take all of these things into consideration and do what he feels in his best judgment and training is in the patient’s best interest. And it appears that that is what he did.

Dr. Dingman’s opinion that Dr. Hickman had complied with the standard of care was based on a hypothetical, namely, that the plaintiff told Hickman that her grandmother had died of breast cancer; that her mother had repeated benign breast biopsies; and that a clinical examination indicated that the plaintiff had a lump on her left breast and firm tissue on her right breast. Dr. Fairbanks also testified that a biopsy of the breast tissue was not a required procedure, and that the defendant did not breach the standard of care by failing to do a biopsy or take a mammogram before recommending surgery.

Evidence of what information a patient should have to be able to give informed consent was given by the plaintiff’s expert. He testified that a physician who performs a subcutaneous mastectomy conforms to the standard of care if the physician informed the patient of four possible complications: hematoma (bleeding), infection, capsule contracture (hardening) and skin necrosis (sloughing off of the skin). The defendant testified that he discussed the following possible complications with the plaintiff: hematoma, infection, capsule contracture, pain, implant leakage, and implant rejection. The defendant also told the plaintiff that if capsule contracture or implant leakage occurred, further operations might be necessary. Also, a consent form signed by the plaintiff was introduced at trial which listed the following possible complications: inflammation, tenderness, swelling, discoloration, scar tissue, infection, and hematoma. Although necrosis was apparently not mentioned either by the defendant or in the consent form, it is not a complication that the plaintiff experienced.

The plaintiff relies on testimony that contradicts much of the foregoing testimony to support the proposition that the trial court abused its discretion in granting a new trial.¹ Conflicting evidence, however, does not prohibit the granting of a new trial. Brown v. Johnson, 24 Utah 2d 388, 472 P.2d 942 (1970); King v. Union Pacific Railroad Co., 117 Utah 40, 212 P.2d 692 (1949). “The mere fact that the jury verdict is supported by substantial evidence sufficient to make a prima facie case and furnish a reasonable basis for their decision does not require that the trial court’s order granting a new trial should be reversed.” Wellman v. Noble, 12 Utah 2d 350, 353-54, 366 P.2d 701, 703 (1961).

The plaintiff also argues that the trial court should be reversed because it failed to “state any reasons for or cite anything in the record supporting its conclusions.” The trial court’s order, quoted earlier, states the statutory grounds for its decisions, which were (1) excessive damages indicating passion or prejudice (Utah R.Civ.P. 59(a)(5)), and (2) findings against the evidence, i.e., insufficiency of the evidence (Utah R.Civ.P. 59(a)(6)). The plaintiff argues, however, that the order should have been supported by detailed findings of fact. See Markey v. Hauck, 73 Wis.2d 165, 172, 242 N.W.2d 914, 917 (1976); DeGroff v. Schmude, 71 Wis.2d 554, 564, 238 N.W.2d 730, 735 (1976).

Without question, the making of findings would be good practice, 58 Am. Jur.2d New Trial § 214 (1971), particularly to an appellate court reviewing a motion for new trial which had been granted. However, the Utah Rules of Civil Procedure do not require findings. The Utah rules require only that if a court orders a new trial “of its own initiative,” it shall “specify the grounds therefor” in its order. Utah R.Civ.P. 59(d). This requirement is met by specifying the general grounds provided in the Rules, as was done in this case. Cf. Luther v. Howland, 101 Idaho 373, 613 P.2d 666 (1980) (by statute, all orders for new trial must contain statutory grounds); Mettee v. Urban Renewal Agency, 219 Kan. 165, 547 P.2d 356 (1976) (same).

The plaintiff also argues an abuse of discretion by the trial court is evidenced by the statement in his order that the damage award was so excessive as to show that the jury acted out of “passion or prejudice.” Utah R.Civ.P. 59(a)(5). The jury awarded the plaintiff $20,000 in special and consequential damages and $180,000 in general damages. Since we have decided that a new trial is sustainable under Utah R.Civ.P. 59(a)(6), we need not decide whether the grant of a new trial is also supported under Rule 59(a)(5). We do note, however, that in other malpractice cases involving breast surgery, general damage awards of approximately $200,000 or greater have been held not to be excessive. See, e.g., Nelson v. Gaunt, 125 Cal.App.3d 623, 178 Cal.Rptr. 167 (1981) ($450,000); Kinikin v. Heupel, Minn., 305 N.W.2d 589 (1981) ($600,000); V. Mueller & Co. v. Corley, Tex.App., 570 S.W.2d 140 (1978) ($170,000).

The plaintiff asserts, but does not raise as a point on appeal, that the trial judge “demonstrated his own bias against [plaintiff] and her legal claims throughout the trial.” The plaintiff does not argue, however, that this alleged bias (which she documents in an appendix to her brief) is direct evidence of abuse of discretion. Except for a brief footnote, the plaintiff does not even argue the bias point in her brief.

The general rule concerning abuse of discretion is that “this [C]ourt will presume that the discretion of the trial court was properly exercised unless the record clearly shows the contrary.” State ex rel. Road Commission v. General Oil Co., 22 Utah 2d 60, 62, 448 P.2d 718, 719 (1968). The trial judge’s rulings which have been raised as points on appeal do not provide a basis for reversing the order requiring a new trial.

The order granting the new trial is affirmed and the case remanded for further proceedings. Costs to respondents.

HALL, C.J., and OAKS and HOWE, JJ., concur.

1 . The plaintiff's expert witness vigorously disputed the testimony of the defendant’s experts as to the proper standard of care in recommending the subcutaneous mastectomy procedure. And the plaintiff testified that the defendant had never told her that her breasts could become hard, painful or infected after surgery.