Decided June 30, 1976.
Negligence — Hospitals — Jury verdict excessive — New trial — On damages issue only — Authorized by App. R. 12 (D) and Civ. R. 42(B).
CERTIFIED by the Court of Appeals for Franklin County.
On December 10, 1971, Donald H. Mast, plaintiff-appellant herein, was admitted into Doctor's Hospital North, defendant-appellee herein, for diagnostic work to determine the nature and extent of arthritic problems affecting his neck and left arm. Pre-myelogram medication included an injection of nembutal and/or demerol in the right arm. Immediately upon receiving the injection, plaintiff experienced a sensation going down his right arm to the tip of his fingers which was later characterized in the defendant's records as paresthesia.
On December 5, 1972, plaintiff instituted an action in the Court of Common Pleas against the defendant. Plaintiff alleges that he "* * * has been caused to suffer injury, pain, paralysis, discomfort, anguish, restriction of activities, and has undergone medical treatment; that his injuries are permanent, and that he will suffer future pain, disability and will undergo future medical treatment and incur future medical expenses * * * [and that] by reason of the above he has been damaged in the sum of * * * $200,000."
Nearly all physicians who testified at trial (including defendant's expert) agreed that, as a result of the injection, Mast had sustained right radial nerve palsy and paralysis.
From the time of the injection, in December of 1971, until he returned to work March 19, 1973, Mast's condition improved from almost total paralysis of the arm to a degree of disability which was estimated variously by the plaintiff's expert as 30 percent loss of use, and by the defendant's expert as 15 percent of total disability. Mast testified that his condition improved during the first year, but thereafter remained at almost the same level through the time of trial, 2-3/4 years after the injection. His physician recorded "increased pain" many months after the incident. At the time of the injection, Mast had a life expectancy of almost 20 years. There was evidence of a loss of earnings of approximately $14,000, and of diminished earning capacity.
The jury returned a verdict, signed by seven of its eight members, finding "the issues" in favor of plaintiff and determining the damages sustained by plaintiff as $196,160. Judgment was entered upon the verdict.
In addition, all jurors answered, "yes" to the following interrogatories submitted pursuant to Civ. R. 49:
"1. Do you find that a nurse employed by Doctor's Hospital, and under its direction and control administered an intramuscular injection to the plaintiff on December 15, 1971, while within the scope of her employment for Doctor's Hospital?"
"2. If your answer to interrogatory No. 1 is yes, do you find that such injection caused damages to the right radial nerve of the plaintiff Donald H. Mast?"
Defendant's motion for a new trial, alleging primarily that the verdict was excessive, was overruled by the trial court.
Upon appeal, defendant assigned as error that the verdict was excessive as being contrary to the weight of the evidence, citing Schendel v. Bradford (1922), 106 Ohio St. 387.
The Court of Appeals determined that the verdict was excessive, and reversed the judgment for that reason, but determined that the court lacked jurisdiction to "separate the issues of liability and damages," and that it was therefore constrained to reverse and remand for a new trial of all issues, inasmuch as it found the damages issue to constitute reversible error.
On that latter question, the court found that its judgment is in conflict with the judgment in Jasterbowski v. Michos (1975), 44 Ohio App.2d 201, on the question: "[W]hether a Court of Appeals may properly reverse a judgment only as to damages and remand the cause for retrial solely upon the issue of damages, where the Court of Appeals finds the jury verdict in this regard to be against the manifest weight of the evidence but finds no error as to the jury verdict with respect to liability?," and certified the record of this case to this court for review and final determination pursuant to Section 3(B)( 4), Article IV of the Ohio Constitution.
Messrs. Volkema, Pees Snevel and Mr. Randall W. Pees, for appellant.
Messrs. Lane, Alton Horst, Mr. Collis Gundy Lane, Mr. Jack R. Alton and Mr. Charles J. Chastang, for appellee.
Before the advent of the Ohio Rules of Civil and Appellate Procedure the case law of this state clearly held that the reversal and vacation of an erroneous verdict for damages required a trial de novo as to all issues in the case. See Edelstein v. Kidwell (1942), 139 Ohio St. 595; Markota v. East Ohio Gas Co. (1951), 154 Ohio St. 546.
It is the opinion of a majority of this court, however, that App. R. 12 (D), in conjunction with Civ. R. 42(B), authorizes a Court of Appeals to order the retrial of only those issues, claims or defenses the original trial of which resulted in prejudicial error, and to allow issues tried free from error to stand.
App. R. 12(D) vests the court with the necessary authority to order a trial court to exercise its powers under Civ. R. 42(B) to separately try any claim or issue, when such separation is "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy." Civ. R. 42(B).
Accordingly, for the foregoing reasons, the certified question is answered in the affirmative, and the cause is remanded to the Court of Appeals with instructions to remand the cause to the Court of Common Pleas for a retrial upon only the issue of damages.
O'NEILL, C.J., HERBERT, CORRIGAN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
I agree that the cause be remanded. However, I am of the opinion that, in remanding the cause, it should be retried on all issues, on the basis of Markota v. East Ohio Gas Co. (1951), 154 Ohio St. 546, and Edelstein v. Kidwell (1942), 139 Ohio St. 595.