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stating the standard for waiving a jury trial differs between civil and criminal proceeding attributed to a court's duty to safeguard a criminal defendant's constitutional right to a jury trial
Summary of this case from In re Dependency of A.C.Opinion
No. 40159-9-I.
Filed: January 25, 1999.
Appeal from the Superior Court for King County, No. 95-2-15371-2, Carol A. Schapira, J., on December 18, 1996, January 3, 1997, January 31, 1997.
Lembhard G. Howell, Attorney At Law, Appellant(s)
William R. Hickman, Reed McClure, William G. Adams, Hoffman Hart Wagner, Margaret A. Sundberg, Williams Kastner Gibbs, Respondent(s)
Frederick L. Jones, Sr., appeals the judgment entered on the jury's verdict in his medical malpractice action against Sisters of Providence in Washington d/b/a Providence Medical Center, Susan Lo, M.D., and Richard G. Foutch, M.D., contending that the trial court committed reversible error when it allowed an alternate juror to participate in the jury's deliberations without a vote. Because the alternate juror's participation in the jury deliberations violated the cardinal requirement that juries must deliberate in private, and because it does not affirmatively appear that there was not and could not have been any prejudice as a result, we agree and reverse.
We address Jones' other contentions on appeal in the unpublished portion of this opinion.
FACTS
On June 15, 1995, Mr. Jones filed a summons and complaint for medical malpractice against Providence, Dr. Lo, and Dr. Foutch, alleging negligence based on Drs. Lo and Foutch's failures to diagnose his ischemic leg. The trial court impaneled a jury of twelve with two alternates. Trial commenced on November 14, 1996. Mid-trial, one of the jurors was dismissed due to weather-related transportation problems. At the close of the case on November 27, 1996, the trial court asked the remaining alternate juror to participate in the jury's deliberations without a vote:
Before the trial started, we had designated seats for alternates, and Mr. Caudell, you are in the alternate seat.
What I'm going to suggest, and I hope it meets with your approval, is that when we return from the lunch hour, that you deliberate with the jury, but I'm going to caution you that you may not vote on any question before the jury.
The reason I'm proposing this is as follows:
It doesn't happen often, but if any of the other jurors were not able to complete jury service, I would call you back and the deliberations would have to start all over again.
I know you've paid close attention to this case; as I say, you are welcome to participate in the discussions on all the questions before the jury, but you may not vote; I do hope you'll take me up on that. If you feel that your personal life demands you, then you are excused for the current time, but I do caution you that I may have to call you back if any of the other jurors are not able to complete their service during deliberations.
3 Report of Proceedings at 168-69. At the time, none of the parties objected. The alternate juror participated in the deliberations, but left the jury room before the regular jurors returned their verdict on December 2, 1996. The jury found in favor of Drs. Lo and Foutch.
Mr. Jones moved for a new trial, contending that the trial court erred by allowing the alternate juror to deliberate with the jury. The trial court denied Mr. Jones' motion:
The alternate juror was permitted to participate in deliberations. Counsel were informed before deliberations began based on the court's concern that because of potential delay from the Thanksgiving holiday about to begin, that it might be very difficult to include him later should one of the jurors fail to appear. The alternate and jury were instructed that he could not vote on any question before the jury.
He returned on Monday but left at lunch time, several hours before the jury rendered its verdict on the first question. Thus, the court concludes he did not vote on any jury question. CR 47(b) permits the court to discharge the alternate at a later time. Moreover, counsel never raised an objection before or during the jury's deliberations.
Clerk's Papers at 282. Mr. Jones appeals.
DISCUSSION
Our Supreme Court has held that reversible error occurs when an alternate juror is present during criminal deliberations "unless `it affirmatively appears that there was not, and could not have been, any prejudice.'" State v. Cuzick, 85 Wn.2d 146, 150, 530 P.2d 288 (1975) (quoting State v. Carroll, 119 Wn. 623, 624, 206 P. 563 (1922)). The Supreme Court's reasoning was two-fold. First, the court noted that permitting the alternate juror to observe deliberations even if the juror did not actively participate in the deliberations violated former RCW 10.49.070, which "specifically required dismissal of alternate jurors upon submission of a case to the jury." Cuzick, 85 Wn.2d at 148. Second and "more significant," the court concluded that "{s}uch observation, even by one sworn to secrecy and silence, violates the cardinal requirement that juries must deliberate in private." Id. at 148-49; see also State v. Aker, 54 Wn. 342, 347, 103 P. 420 (1909) ("We are not inclined to sanction any practice which permits the invasion of the privacy of the jury room during deliberation."), quoted in State v. Smith, 43 Wn.2d 307, 310, 261 P.2d 109 (1953).
Drs. Lo and Foutch contend that the Cuzick rule should not be applied in civil proceedings because CR 47(b), unlike former RCW 10.49.070, does not require the trial court to discharge alternate jurors upon submission of the case to the jury: "An alternate juror who does not replace a regular juror may be discharged or temporarily excused after the jury retires to consider its verdict." CR 47(b) (emphasis added). We reject this argument for two reasons.
First, although CR 47(b) does not forbid an alternate juror from participating in civil deliberations, it also does not expressly authorize an alternate juror to participate in or observe deliberations. Rather, CR 47(b) contemplates that an alternate juror may be temporarily excused and then recalled to replace a regular juror who is unable to complete deliberations at which time deliberations would begin anew. Cf. State v. Johnson, 90 Wn. App. 54, 72, 950 P.2d 981 (1998) (construing analogous CrR 6.5).
Second, the mandatory language of RCW 10.49.070 was not the primary basis for the Supreme Court's holding in Cuzick. Rather, the court based its holding in principle on the "more significant" and "cardinal requirement that juries must deliberate in private." Cuzick, 85 Wn.2d at 149. Indeed, if this court were to adopt Drs. Lo and Foutch's argument that CR 47(b) authorizes trial courts to permit alternate jurors to participate in civil deliberations, then it logically follows that CrR 6.5 which succeeded former RCW 10.49.070 and closely parallels CR 47(b) would also authorize trial courts to permit alternate jurors to participate in criminal deliberations.
Dr. Foutch also contends that the constitutional concerns protecting the sanctity of a the jury room in criminal cases simply do not apply to civil cases. Although the "cardinal requirement that juries must deliberate in private" is a principle of "constitutional stature," the cardinal requirement that juries must deliberate in private "was borne out of a concern to protect the integrity of the jury system." State v. Lehnherr, 30 Or. App. 1033, 569 P.2d 54, 57 (1977). That is, permitting an alternate juror or other stranger to observe and participate in the jury's deliberations compromises the sanctity of the jury's deliberations and, in turn, could undermine the public's confidence in our judicial system as whole:
It has been said the deliberation of the jury is a final and crucial stage of any trial. In order that the institution of jury trials be preserved and its usefulness continued, its deliberations and pronouncements must be kept pure, and untainted, not only from all improper influences, but from the appearances thereof. It is often said that the jury trial is one of the bulwarks of our liberty, but it will remain so only as long as public confidence in the institution prevails.
Daniels v. Bloomquist, 258 Iowa 301, 138 N.W.2d 868, 872 (1965). "{T}he same concerns of the sanctity and secrecy of the jury room apply with as much force to civil and as to criminal trials and as much implicate the rights of civil as of criminal litigants." Eickmeyer v. Dunkin Donuts, 507 So.2d 1193, 1194 (Fla. Dist. Ct. App. 1987); see also State Highway Comm'n v. Dunks, 531 P.2d 1316, 1318 (Mont. 1975) ("It is true legal principles have been applied less stringently to civil juries than criminal juries, however, we cannot conclude that there is a double standard that can be applied to the sanctity of a jury's deliberations based on criminal or civil process."). Therefore, applying the reasoning of Cuzick, 85 Wn.2d 146, we hold that it is error for a trial court to permit an alternate juror to participate in civil jury deliberations.
Nonetheless, Dr. Lo maintains that an alternate juror's participation in civil deliberations should not constitute reversible error absent a showing of actual prejudice. See, e.g., United States v. Olano, 507 U.S. 725, 737-41, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (holding that although "the presence of alternate jurors does contravene `the cardinal principle that the deliberations of the jury shall remain private and secret,'" reversal is not required under the federal rules of criminal procedure unless actual prejudice is shown). But our Supreme Court has held that prejudice must be presumed where the sanctity of the jury room has been breached, because it is impossible to recreate what occurred in the jury room and what effect or influence the alternate juror's presence may have had on the jury's deliberations. Cuzick, 85 Wn.2d at 150. Therefore, notwithstanding federal case law to the contrary, an alternate juror's participation in civil deliberations constitutes reversible error unless it affirmatively appears that there was not and could not have been any prejudice.
Based on the record in this case, it does not affirmatively appear that there was not or could not have been any prejudice. That is, although the alternate juror left the jury room before the final vote, it cannot be determined what effect or influence the alternate juror's comments and actions during deliberations had on the jury. Therefore, the alternate juror's participation in the jury's deliberations constitutes reversible error.
As a final matter, Drs. Lo and Foutch contend that even if the trial court erred when it permitted the alternate juror to participate without a vote in the jury's deliberations, Mr. Jones waived the error by failing to object when the trial court announced that the alternate juror would be permitted to participate in the deliberations without a vote. In Cuzick, the respondent also argued that the appellant "waived his right to challenge the makeup of the jury when his counsel failed to object to the alternate juror's admission to the jury room at the time it was ordered." Cuzick, 85 Wn.2d at 149. Our Supreme Court resoundingly rejected this argument, noting again the importance of protecting the sanctity of the jury room:
"Objection to deviation from the authorized number of jurors has been held nonwaivable, however. Even if waiver is allowed, the importance of the jury secrecy principles affected is such that it can only be made informedly and affirmatively by the defendant himself, not implied from the silence of his counsel."
Id. (emphasis added). Nonetheless, Drs. Lo and Foutch argue that this rule should not be extended to the civil context, noting that waiver of jury trial may be implied in the civil context but must be express in the criminal context. Compare Ford Motor Co. v. Barrett, 115 Wn.2d 556, 563, 800 P.2d 367 (1990) (holding that jury trial in a civil action may be waived by inaction where the party fails to demand jury trial or pay fee on or before setting of trial date) with City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984) (holding that a criminal defendant's waiver of a jury trial must be affirmative, unequivocal, and on the record).
Although the standard for waiving a jury trial differs between civil and criminal proceedings, this difference can be attributed to the court's duty to carefully safeguard a criminal defendant's fundamental constitutional right to a jury trial. See Acrey, 103 Wn.2d at 207 (citing Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942)). But in this case, as discussed above, we are not only concerned about an individual's right to a jury trial, but also the integrity of the judicial process as a whole. Moreover, once Mr. Jones invoked his right to a civil jury, he had a reasonable expectation that the trial court would employ procedures that protected the jury from outside influence. Cf. CR 47(b) ("When an alternate juror is temporarily excused but not discharged, the trial judge shall take appropriate steps to protect such juror from influence, interference or publicity which might affect the juror's ability to remain impartial{.}").
By permitting the nonvoting alternate juror to participate in the jury's deliberations, the trial court compromised the cardinal principle that juries must deliberate in private. "Being that the jury is a fundamental part of our justice system, waiver of the right to jury or to a variation in its constitution should not be taken lightly, and certainly not inferred except by express written agreement or a stipulation on the record by counsel." Cabral v. Sullivan, 961 F.2d 998, 1003 (1st Cir. 1992); accord Cuzick, 85 Wn.2d at 149. Therefore, without deciding whether civil litigants can ever stipulate to a nonvoting alternate juror's participation in the jury's deliberations, we hold that Mr. Jones did not waive the trial court's error by failing to object when the trial court announced that the alternate juror would be permitted to participate in the jury's deliberations without a vote.
Reversed and remanded for a new trial.
A majority of the panel having determined that the remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports but will be filed for public record in accord with RCW 2.06.040, it is so ordered.
Although our disposition of the alternate juror issue makes it unnecessary to address Mr. Jones' other assignments of error, we address them to provide some guidance to the trial court on retrial.
A. ERROR-IN-JUDGMENT INSTRUCTION
The trial court instructed the jury that "{a} physician is not liable for an error of judgment if, in arriving at that judgment, the physician exercised reasonable care and skill, within the standard of care the physician was obliged to follow." Clerk's Papers at 199. Mr. Jones contends that the trial court erred in giving this instruction, which mirrors WPI 105.08, because it misstates the law, is a judicial comment on the evidence, is confusing for the jury, and was not appropriate under the facts of this case.
First, Mr. Jones argues that WPI 105.08 misstates the law because it contradicts the objective standard of care required of health care providers by statute:
The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances{.}
RCW 7.70.040. This court, however, has previously rejected this exact argument, reasoning that WPI 105.08 supplements, rather than contradicts, RCW 7.70.040:
We do not accept {Appellant's} invitation to reject the error-of-judgment instruction. Our Supreme Court approved the instruction in Miller v. Kennedy, 91 Wn.2d 155, 160, 588 P.2d 734 (1978){,} and Watson v. Hockett, 107 Wn.2d 158, 164-65, 727 P.2d 669 (1986). The court in Watson concluded that the instruction is useful to remind the jury that "medicine is an inexact science where the desired results cannot be guaranteed, and where professional judgment may reasonably differ as to what constitutes proper treatment." {Watson,} 107 Wn.2d at 167 (emphasis omitted).
Gerard v. Sacred Heart Med. Ctr., 86 Wn. App. 387, 388-89, 937 P.2d 1104, review denied, 133 Wn.2d 1017 (1997); see also Christensen v. Munsen, 123 Wn.2d 234, 249, 867 P.2d 626, 30 A.L.R.5th 822 (1994) ("{A}n error in judgment instruction supplements the standard of care and can only be given with a proper standard of care instruction.") (emphasis added); Watson, 107 Wn.2d at 166 ("The `no guarantee',`bad result' and `error in judgment' instructions . . . `supplement' the standard of care; while they may clarify it, they do not change it.").
Second, Mr. Jones contends that the trial court erred in giving the jury WPI 105.08 because it is an impermissible judicial comment on the evidence. But our Supreme Court has previously held that WPI 105.08 accurately states the law and "does not constitute an impermissible comment on the evidence by the trial judge under Const. art. 4, § 16." Christensen, 123 Wn.2d at 249.
Third, Mr. Jones contends that the trial court erred in giving the jury WPI 105.08 because it confuses the jury on the proper standard of care required of physicians. In support of this contention, Mr. Jones cites a number of medical malpractice cases from other states that have struck down similar error-in-judgment instructions, including Rogers v. Meridian Park Hosp., 307 Or. 612, 772 P.2d 929, 933 (1989) (holding that Oregon's error-in-judgment instruction was unduly confusing because it "obscure{d} the fact that, to avoid liability, the defendant must exercise the degree of care, skill, and diligence required by law," and "suggest{ed} that substandard conduct is permissible if it is garbed as an `exercise of judgment'"). As the Delaware Supreme Court has noted, each case discussing the propriety of a particular jurisdiction's error-in-judgment instruction "ultimately turns on peculiar variations in language and the context in which the `judgment' language is placed, as viewed by the reviewing court." Riggens v. Mauriello, 603 A.2d 827, 831 (Del. 1992). In Washington, our Supreme Court has held that WPI 105.08 "supplements the standard of care" instruction, "accurately state{s} the law," and is "appropriately worded." Christensen, 123 Wn.2d at 249 (citing Watson, 107 Wn.2d at 164-65). Moreover, this court has previously rejected the argument that the Rogers reasoning should be applied to WPI 105.08. See Thomas v. Wilfac, Inc., 65 Wn. App. 255, 263-64, 828 P.2d 597 (1992). Therefore, we reject Mr. Jones' contention that WPI 105.08 confuses the jury on the proper standard of care required of physicians.
Fourth, Mr. Jones contends that the trial court erred in giving the jury WPI 105.08 because the instruction was inappropriate under the facts of this case. The error-in-judgment instruction "only applies . . . when there is evidence that in arriving at a judgment, the physician exercised reasonable care and skill within the standard of care he or she was required to follow." Christensen, 123 Wn.2d at 249. Ordinarily, the instruction will only be given in "situations in which the doctor is confronted with a choice among competing therapeutic techniques or among medical diagnoses." Id. Because "an error in judgment instruction supplements the standard of care{, it} can only be given with a proper standard of care instruction." Id.
In this case, Drs. Lo and Foutch both presented expert testimony that they exercised reasonable care and skill within the standard of care they were required to follow. Moreover, both physicians presented evidence that Mr. Jones' condition presented them with a choice among medical diagnoses. And finally, the trial court gave a proper standard of care instruction.
Nonetheless, Mr. Jones maintains that error in judgment instruction "should not be given where the physician failed to perform a proper examination so as to ascertain the facts and circumstances upon which to make a judgment." Appellant's Br. at 30-31 (citing Truan v. Smith, 578 S.W.2d 73, 76, 100 A.L.R.3d 715 (Tenn. 1979)). Granted, if a physician does not perform a proper examination, that physician did not exercise reasonable skill and care in carrying out his or her duties. But as discussed above, in this case, both physicians presented evidence that they exercised reasonable care and skill. And the mere fact that Mr. Jones and the physicians presented conflicting testimony on whether the physicians exercised reasonable skill and care does not render the error in judgment instruction inappropriate. Rather, it creates an issue for the jury. Therefore, the trial court did not err in giving WPI 105.08 to the jury in this case.
B. EVIDENCE OF MR. JONES' PSYCHIATRIC HISTORY
Mr. Jones does not dispute that his psychiatric history was relevant to the damages he sought for "lost income experienced and reasonably certain to be experienced in the future, pain and suffering, mental anguish, and a significant impairment of his ability and capacity to enjoy life{.}" Clerk's Papers at 5. He contends, however, that the trial court improperly admitted two psychiatric evaluations by Ronald W. Levin, M.D. and William A. Burkhart, Ph.D. under the business records exception to the hearsay rule, and that the psychiatric evaluations and Dr. Burkhart's testimony were unduly prejudicial and needlessly cumulative.
A practicing physician's records, made in the regular course of business, properly identified and otherwise relevant, constitute competent evidence of a condition therein recorded.'" State v. Ziegler, 114 Wn.2d 533, 538-39, 789 P.2d 79 (1990) (citation omitted). "The trial judge's decision to admit or exclude business records is given great weight and will not be reversed unless there has been a manifest abuse of discretion." Id. at 538; State v. Garrett, 76 Wn. App. 719, 722, 887 P.2d 488 (1995).
Although Mr. Jones does not dispute that his psychiatric evaluations are properly identified business records, he maintains that the trial court abused its discretion in admitting the evaluations because they contain inadmissible hearsay. But the cases upon which Mr. Jones relies are distinguishable because they involved speculation about the cause of the patient's condition and not just a diagnosis of the patient's condition. See, e.g., Liljeblom v. Department of Labor Indus., 57 Wn.2d 136, 141, 356 P.2d 307 (1960) ("Exhibit No. 1 contains the conclusions of the doctors {as to the cause of decedent's injury}, and it was for that segment of the report that respondent was urging its admission into evidence. Business records are not admissible for the purpose of proving the conclusions there recorded."); Young v. Liddington, 50 Wn.2d 78, 83-84, 309 P.2d 761 (1957) ("Any opinions or conclusions that the doctor may have made from the history given by the mother and his examination of the patient related only to his treatment of epilepsy, and could not be admitted as any proof that the epilepsy which he was then treating was the result of diphtheria. Such a diagnosis or conclusion could only be based upon speculation or conjecture.").
In this case, on the other hand, the psychiatric evaluations only contain statements attributed to Mr. Jones which are admissible under the ER 804(b) "Statements for Purposes of Medical Diagnosis or Treatment" exception to the hearsay rule and the treating physicians' diagnoses of Mr. Jones' condition which are admissible under the business records exception to the hearsay rule. Glenn v. Brown, 28 Wn. App. 86, 90, 622 P.2d 1279 (1980). Therefore, the evaluations do not contain inadmissible hearsay.
Mr. Jones also contends that the trial court abused its discretion in admitting the psychiatric evaluations because they were unduly prejudicial. ER 403 excludes evidence "if its probative value is substantially outweighed by the danger of unfair prejudice . . . or needless presentation of cumulative evidence." "The weighing of probative value against unfair prejudice under this rule rests within the sound discretion of the trial court." Kirk v. Washington State Univ., 109 Wn.2d 448, 462, 746 P.2d 285 (1987).
The psychiatric evaluations at issue contain information about Mr. Jones' struggles with alcohol and drug abuse, post-traumatic stress syndrome, and depression that was highly probative of the damages that Mr. Jones sought for "lost income experienced and reasonably certain to be experienced in the future, pain and suffering, mental anguish, and a significant impairment of his ability and capacity to enjoy life{.}" Clerk's Papers at 5. The trial court redacted the unduly prejudicial statements from the evaluations, including the fact that Mr. Jones was recurrently AWOL while in the military. Moreover, Mr. Jones himself testified that he suffered from drug and alcohol addiction. Therefore, balancing the probative value of Mr. Jones' psychiatric evaluation against the danger of unfair prejudice, the psychiatric evaluations cannot be characterized as so unduly prejudicial or inflammatory as to require exclusion under ER 403.
Other statements were also redacted from the evaluations, but the nature of those statements cannot be determined from the incomplete record on appeal.
For the same reasons, Dr. Burkhart's testimony about Mr. Jones' psychiatric history cannot be characterized as so unduly prejudicial as to require exclusion under ER 403. Moreover, the fact that Dr. Burkhart's testimony included cumulative evidence does not alone require its exclusion: "the admissibility of cumulative evidence lies within the trial court's discretion." Christensen, 123 Wn.2d at 241. Indeed, ER 403 only refers to needlessly cumulative evidence, and the trial court may have concluded that Dr. Burkhart's testimony would help the jury better understand Dr. Burkhart's psychiatric evaluation of Mr. Jones. Therefore, the trial court's court decision to admit the evidence of Mr. Jones' psychiatric history cannot be characterized as an abuse of discretion.
C. SPECIAL VERDICT FORM AND INDEPENDENT DUTY INSTRUCTION
Mr. Jones contends that the trial court erred in leaving Providence off the special verdict form, which required the jury to allocate fault between Drs. Lo and Foutch, and refusing to instruct the jury that Providence has "an independent duty of care to its patients" under principles of ostensible agency. Clerk's Papers at 125. Providence maintains that the parties' pretrial agreement which stipulated that Providence's liability derived solely from Drs. Lo and Foutch's alleged negligence negated any need to include Providence on the special verdict form.
"Instructions are sufficient if they permit a party to argue his or her theory of the case, are not misleading, and, when read as a whole, properly inform the jury on the applicable law." Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662, 935 P.2d 555 (1997). "Special verdict forms are reviewed under this same standard." Capers v. Bon Marche, 91 Wn. App. 138, 142, 955 P.2d 822, 825 (1998). That is, "when read as a whole and with the general charge, the special verdict must adequately present the contested issues to the jury in an unclouded, fair manner." Id. An erroneous statement of the applicable law, however, is not reversible error unless it is prejudicial. Id.
Although Mr. Jones and Providence agreed that questions of fact remained as to whether Providence was liable to Mr. Jones under principles of ostensible agency, the parties stipulated that Providence's liability, if any, derived from Drs. Lo or Foutch's alleged negligence:
COME NOW Frederick L. Jones, Sr. and Sisters of Providence in Washington, Inc., through their respective counsel of record, and stipulate as follows to limit the liability issue of Sisters of Providence, d/b/a Providence Medical Center and Providence Family Medical Center:
There is no evidence of active or primary negligence comprising independent fault of Sisters of Providence in Washington in proximately causing damage to Frederick L. Jones, Sr.; however, there remain questions of fact as to whether Sisters of Providence in Washington would be liable to the plaintiff under legal theories of respondeat superior because of ostensible agency of Dr. Lo and Dr. Foutch, in the event either or both physicians are found liable to the plaintiff.
Clerk's Papers at 18-19. The trial court, however, found that Drs. Lo and Foutch were Providence's employees as a matter of law, and instructed the jury that Providence would be rather than could be liable if the jury found either Dr. Lo or Dr. Foutch negligent:
In deciding how to word Instruction 10, the trial court effectively found that Drs. Lo and Foutch were Providence's agents as a matter of law:
There's no evidence that {Drs. Lo. and Foutch} were not employed; this isn't like I work for So-and-So Emergency Services, who's an independent contractor; I didn't hear that.
They are employees of the hospital. I don't have a question that the hospital is responsible for the actions of its employees. I mean it is certainly that I am not — I mean you haven't asked me to direct a verdict, but as I say there's no evidence before me that says that the hospital is not. But the point is it's not independent, it's not something that helps you to divide the hundred percent. The hundred percent at this point is really only between Dr. Lo and Dr. Foutch, if at all; you know, maybe they're both at zero, I'm not trying to say that somebody's the bad guy here, but there's no independent number that you would assign to the hospital.
{T}he point is Sisters of Providence was the employer here, or something like that, and that there is no independent basis for their negligence; "If you find `X' then `Y' follows," or something like that.
The parties have stipulated that Sisters of Providence is only liable to Mr. Jones if you find that Dr. Lo and/or Dr. Foutch were negligent. Therefore, you will only be asked to consider the care provided by Dr. Lo and Dr. Foutch.
Clerk's Papers at 202 (Instruction 10). Therefore, the trial court effectively ruled that Providence would be liable as a matter of law if the jury found either Dr. Lo or Dr. Foutch negligent, and it was unnecessary for the trial court to include Providence on the special verdict form, or to instruct the jury on principles of ostensible agency.
Because neither party assigned error to this instruction, it is the law of the case. Richmond v. Thompson, 130 Wn.2d 368, 385, 922 P.2d 1343 (1996).
Providence requests attorney fees on appeal under RAP 18.9 and CR 11 for defending an appeal that it deems frivolous. "An appeal is frivolous when, considering the record in its entirety and resolving all doubts in favor of the appellant, no debatable issues are presented upon which reasonable minds might differ, i.e., `it is devoid of merit that no reasonable possibility of reversal exists.'" Brin v. Stutzman, 89 Wn. App. 809, 828, 951 P.2d 291 (1998) (citation omitted). Applying this standard, we reject Providence's request for attorney fees.
D. NUMBER OF DEFENSE WITNESSES
Mr. Jones contends that the trial court erred in permitting five non-treating experts to testify concerning whether Drs. Lo and Foutch were negligent in failing to diagnose Mr. Jones' ischemic leg. But as discussed above, "the admissibility of cumulative evidence lies within the trial court's discretion." Christensen, 123 Wn.2d at 241. And the mere fact that the trial court permits more than one expert to testify on a particular subject does not constitute an abuse of discretion. Indeed, our Supreme Court has noted that cumulative evidence may be required in medical malpractice cases to ensure that the jury understands the case:
The specialty areas in this case were highly technical and also interrelated. The trial court may have deemed some cumulative testimony helpful to the jury's understanding of the issues, and some similar responses may have been unavoidable given the fact that several ophthalmologists testified. In any case, both parties' witnesses produced overlapping testimony to a limited extent, and the court did not abuse its discretion in allowing such testimony.
Id.
In this case, Drs. Lo and Foutch each presented two experts concerning whether they were negligent in failing to diagnose Mr. Jones' ischemic leg. In addition,
Providence, whose liability turned on the alleged negligence of Drs. Lo and Foutch, presented one expert on this issue. Mr. Jones points to nothing in the record that suggests the expert testimony was unduly cumulative or prejudicial except the number of experts that testified. This is not sufficient. Therefore, the trial court's decision to permit multiple experts to testify on whether Drs. Lo and Foutch were negligent in failing to diagnose Mr. Jones' ischemic leg cannot be characterized as an abuse of discretion.
E WORKERS' COMPENSATION INSTRUCTION
Mr. Jones also contends that the trial court erred in refusing to give his proposed instruction that would explain to the jury that any recovery obtained by Mr. Jones was subject to the Department of Labor and Industries' right of reimbursement for workers' compensation benefits paid to Mr. Jones. Instead, the trial court simply instructed the jury to disregard the fact that Mr. Jones was covered by workers' compensation: "Certain information was given to you about workers' compensation for the limited purpose of explaining certain testimony and evidence in this case. In arriving at your verdict you are not to consider the fact that Mr. Jones was covered by workers' compensation." Clerk's Papers at 207.
As the trial court explained in its order denying Mr. Jones' motion for a new trial, it was unnecessary for the trial court to explain the Department of Labor and Industries' right of reimbursement, and the instruction given allowed Mr. Jones to argue the theory of his case. Moreover, the jury is presumed to follow the trial court's instruction to disregard the fact that Mr. Jones was covered by workers' compensation. See Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 136, 875 P.2d 621 (1994). Therefore, in light of instruction 14, the trial court did not err in refusing to explain to the jury why it should disregard the fact that Mr. Jones was covered by workers' compensation.
F. TRIAL COURT'S PARTIAL EXCLUSION OF DR. PINKERS' TESTIMONY
Mr. Jones also contends that trial court erred in refusing to permit his expert, Dr. Lothar Pinkers, to testify about the basic standard of care required of family medicine practitioners such as Dr. Lo. But instead of designating the relevant portion of the record, Mr. Jones relies on the following civil minute entry:
"Dr. Pinkers may not offer opinions on the standard of care in family practice medicine." Clerk's Papers at 176. The record on appeal is inadequate for this court to properly review Mr. Jones' assignment of error. See Dash Point Village Assocs. v. Exxon Corp., 86 Wn. App. 596, 612, 937 P.2d 1148 (1997) ("A party seeking review has the burden of perfecting the record so that this court has before it all of the evidence relevant to the issue.").
Reversed and remanded for a new trial.