Johnston v. Lerwick

738 S.W.2d 868, 1986 Mo. App. LEXIS 5184

• Court: Missouri Court of Appeals
• Decided: December 23, 1986
• Docket: No. 50654
• Status: Published

Opinions

CRIST, Judge.

Appellant (doctor) appeals from a judgment apportioning fault, 80 percent to doctor and 20 percent to respondent (hospital), in a jury-tried medical malpractice case. We affirm.

Plaintiffs sued both doctor and hospital alleging joint responsibility for negligently leaving a metal clamp in plaintiff-wife’s body after surgery. Both doctor and hospital filed answers denying any liability to plaintiffs; neither doctor nor hospital filed any pleadings or claims for apportionment of fault between themselves. The jury was given instructions and verdict forms, M.A. I. 4.12 modified, requiring them to apportion fault between doctor and hospital in the event both were found to be negligent.

Doctor asserts instructing the jury to apportion damages is error where none of the parties requested apportionment in their pleadings because (1) apportionment was not an issue absent a request for such, and (2) he was denied an opportunity to introduce evidence relevant to apportionment.

We need not decide the merits of doctor’s assertions because he failed to preserve his objections. The record indicates that after an off the record instruction conference and prior to the reading of the instructions doctor made “an objection to each and every instruction given and verdict form given.” Plaintiff made the same general objection, and so did hospital. Hospital in addition to its general objection made reference to specific “suggestions, changes and improvements to the instructions” it had made at the instruction conference. Doctor made no such record, and there are no specific objections in the record before us.

On appeal, doctor moved to file a supplemental record consisting of the transcript of doctor’s request to the trial court for an affidavit concerning the instruction conference. That motion was remanded to the trial court and the trial court was “directed to enter an order pursuant to Rule 81.14(e) settling whether objections were made” to the apportionment instructions and verdict forms. The trial court’s order found simply “that objections were made.”

Doctor did not specifically object, on the record, to the apportionment instructions before they were given; nor did he specifically object to the verdict forms, either before they were given to the jury or when the verdict was returned.

Objections at trial to the instructions are not required to preserve the issue for appeal; however, the lack of a specific objection is a factor in determining if there is prejudice and thus reversible error. Cornell v. Texaco, Inc., 712 S.W.2d 680, 682[5] (Mo. banc 1986); and Hudson v. Carr, 668 S.W.2d 68, 71-2[5] (Mo. banc 1984). There is less leniency in objecting to verdict forms; specific objections must be made at the time the verdict forms are given to the jury. Turley Martin Co. v. American Can Co., 661 S.W.2d 79, 82[4] (Mo.App.1983).

Doctor asserts he did make specific objections at the instruction conference. But where his alleged specific objections were not on the record; he had opportunity to object on the record either when he made his general objection before the instructions were given, or when the verdict was returned; he made no further objections to the verdict form; he filed an answer denying each and every allegation of negligence and unskillfulness; and he was found 80 percent at fault doctor was not prejudiced by the instructions. We cannot condone trial tactics whereby the trial court is not specifically alerted to possible errors in the instructions or verdict forms and is not given an opportunity to correct an error if one exists. Ideker, Inc. v. Missouri State Highway Com’n, 654 S.W.2d 617, 623—24[5] (Mo.App.1983). Doctor made a decision to accept the apportionment instructions and it is too late to complain. See Fowler v. Park Corp., 673 S.W.2d 749, 756 (Mo. banc 1984).

Judgment affirmed.

KELLY, J., concurs. SATZ, P.J., dissents.