By its Order and Judgment dated July 2, 2013, the U.S. Court of Appeals for the Tenth Circuit (which includes Wyoming) reinstated the $2 million verdict for a wife’s loss of consortium claim awarded by a federal Wyoming medical malpractice jury, and upheld the $7 million verdict in favor of the husband whose fractured neck was misdiagnosed by an emergency room physician in a local Wyoming hospital. The lower court judge had upheld the jury’s $7 million verdict in favor of the man but had reduced the $2 million loss of consortium verdict in favor of his wife by 75%, to $500,000.
The Underlying Facts
The man was involved in a single-vehicle rollover accident on an icy road in Wyoming in 2008. The man’s truck skidded, rolled five times, and came to rest upside down in the snow. When emergency personnel arrived at the scene, the man was found to have a serious cut under his left eye and he complained of pain on the left side of his neck and shoulder. He was placed on a backboard and a cervical collar was applied in order to support his head and neck and to prevent movement until the full extent of his injuries could be assessed at the hospital.
At the hospital, it was recorded that the man was complaining of neck pain. According to the medical malpractice defendants, the emergency room physician loosened the cervical collar before performing a physical examination of the man that allegedly ruled out a neck injury and therefore, according to the emergency room physician, did not require an x-ray of the man’s neck (the emergency room physician did order, however, a CT scan of the man’s head and facial bones and a CT scan and x-ray of the man’s thoracic spine). The emergency room physician stitched up the man’s facial laceration and discharged him from the hospital early that afternoon.
According to the medical malpractice plaintiffs, the man did not see the emergency room physician until after another physician had already stitched his facial laceration. When the emergency room physician did examine him, he removed the cervical collar that the man had been wearing all day, including during x-rays and the CT scans, and advised the man “we checked all the x-rays and you have no broken bones,” despite the man advising the emergency room physician that he still had neck pain. The man testified that the emergency room physician never physically examined his neck at any time before discharging him from the hospital.
The man, who was from Nevada, left the hospital and went to a friend’s house in Wyoming to recuperate from his injuries. He spent that afternoon and the entire next day in bed. When he got up early the next morning to use the bathroom, he experienced a blinding pain that he described as “a bolt of lightning went off in my head.” He felt a searing pain in his neck and his left arm went numb. He returned to the same emergency room at which time x-rays were taken of his cervical spine that showed a fracture at the fourth and fifth vertebrae of his cervical spine, for which he underwent emergency surgery.
As a result of the alleged delay in diagnosing his neck fracture, the man has constant pain in his neck and left shoulder, his left arm (his dominant arm) is essentially paralyzed due to severe nerve damage, he has bad headaches, and he has been unable to work. The man’s nonphysical injuries include listlessness, depression, agitation, feelings of isolation, and anger due to frustration. The plaintiffs’ marriage suffered tremendously after the man’s life was permanently changed, resulting in the lack of intimacy and the man’s wife having to both care for her husband while at the same time shouldering much of their financial responsibilities. The effect on the marriage has been so great that the wife began talking medication for her own resulting depression.
The Jury’s Verdict
The Wyoming medical malpractice jury awarded $7 million in compensatory damages to the man and $2 million to his wife, for loss of consortium (the loss of the injured person’s services, society, companionship, affection, love, advice, guidance, and/or sexual relations). The medical malpractice defendants filed a post-trial motion asking the district court for a remittitur (reduction) of the jury award or, in the alternative, a new trial. The presiding judge refused to reduce the amount of the man’s jury award but found the wife’s award to be excessive and supported only by “meager” evidence, therefore reducing the wife’s award from $2 million to $500,000.
The Appellate Court’s Decision
The U.S. Court of Appeals for the Tenth Circuit found “fault with the court and not the jury,” holding that the trial judge “overreached in this case, improperly re-weighing the evidence and intruding on the rightful province of the jury,” when it reinstated the $2 million verdict that the jury had awarded to the man’s wife for her loss of consortium claim. The appellate court stated, “A district court abuses its discretion in ordering a remittitur “when the size of the verdict turns upon conflicting evidence and the credibility of witnesses.” In a word, the jury’s award is “inviolate.” And it remains inviolate “so long as it is not so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial.””
The appellate court noted with regard to the wife’s loss of consortium claim, “Those feelings of helplessness, hopelessness, limitation, and loss have now become an insoluble part of [the wife’s] life as well. She described to the jury her sadness, anger, and frustration at her husband’s physical and emotional condition—a situation not readily expected to improve. The jury heard that [the wife] now takes medication for depression and that she and her husband no longer go to bed together. The jurors took in all of this testimony and weighed it as they saw fit …. We think the jury acted within the reasonable bounds of its “wide latitude and discretion” …. We cannot reasonably say that the jury’s award was so excessive that it shocks the judicial conscience.”
Source Louis C. Prager and Rebecca Prager v. Campbell County Memorial Hospital and Brian M. Cullison, M.D., Nos. 11-8102 & 12-8027 (D.C. No. 1:10-CV-00202-ABJ).
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