The current standard for the proposition that injuries associated with medical bills and treatment do not automatically entitle the claimant to an award of pain and suffering can be found in Miller v. Swift, 42 S.W.3d 599 ( Ky.,2001) ("Because the evidence at trial supported a finding by the jury that Miller did not suffer additional pain as a result of the accident, we find the jury's pain and suffering award legally proper and hold that the trial court acted within its discretion in denying Miller's motion for a new trial."). Since that decision, no published decision from our appellate courts has disturbed a trial judge's denial of a motion for a new trial based upon such inadequacy of damages.
In the recent decision of Bayless v. Boyer, M.D., 2003-SC-000250-DG, Justice Roach writing for the Kentucky Supreme Court has continued that streak by affirming the Court of Appeals' decision which also affirmed the trial judge's denial of the injured person's motion for a new trial following a jury's award of medicals for surgery that was needed due to a missed diagnosis of a wrist fracture.
This Bayless decision is summarized briefly, as follows:
In this medical negligence case involving a missed diagnosis of a wrist fracture by the ER doctor and the radiologist, the jury awarded the minor his medicals but nothing for pain and suffering.
Expert testimony noted that the fracture was evident on the x-rays and if the ER doctor had examined the x-rays he would have noticed the fracture. However, the ER doctor testified there was no acute pain so he probably did not review the films. Patient was discharged and to return as needed if pain developed. Patient continued to be active upon discharge and played baseball (with much icing of his sore wrist). There was no follow-up care by the minor or at direction of his parents for two months. It was disputed whether the minor discovered the break before or after the end of the baseball season, but the orthopedist examined the wrist two months later, noted the break and calcification could not be repaired by a cast, performed surgical repair, was confident of a good result and that he should return to normal strength with no more increased risk of arthritic pain than if had been casted properly following the injury.
At trial, the jury found no fault on the ER doctor but found the radiologist negligent. The jury also apportioned fault on the minor and his parents combined for half the fault.
The COA then went through the basics in analyzing a zero pain and suffering verdict and rejected the contention that surgery constituted uncontroverted evidence of pain entitling the young man to those damages. The appellate standard is a review of the motion for new trial on inadequate damages under a 'clearly erroneous' standard and further reminded us that a "new trial depends to a great extend upon factors which may not readily appear in an appellate record." Miller v. Swift was then mentioned as a brief reminder that zero pain and suffering verdicts "may sometimes be appropriate (emphasis added). Hazel v. Beauchamp was relied upon by the claimants (hand in a shredder case followed by surgery had inadequate/nominal damages) but distinguished by the Supremes who added a caveat that Miller v. Swift was being followed but not extended.
With all that said, Justice Roach did address the facts at trial in the form of depositions, testimony and medical records to conclude the jury had a basis to conclude no pain following the break, no pain following surgery, and no interference with his day to day activities (play baseball, do pushups etc), to name a few. "Dr. Wyrick testified that there would likely have been significant pain associated with treatment of Michael's fractured wrist regardless of the treatment option, either casting or surgery, that was used. He further testified that he could not predict any significant difference in pain between the two options. Finally, Michael's surgery was performed under general anesthesia, preventing or limiting the acute pain directly related to the procedure . There was substantial evidence for the jury to conclude that Appellants were not entitled to a damages award for pain and suffering.
Comment:
There are three major shortcomings in this Court's analysis of 'pain and suffering'. First, is the willingness to overlook the actual record at trial. Second, is the failure to understand that more than just pain is involved in pain and suffering. Third, is that surgery does involve some emotional anguish and concern.
- Judicial deference and assumptions that the record supports the trial judge's decision.
The Bayless opinion reminded us again that an appellate judge can actually consider that which is not before them since there must be factors outside the record that the judge relies upon in denying the motion for a new trial. This is not fiction but fact - a "new trial depends to a great extent upon factors which may not readily appear in an appellate record." If the trial judge makes no special findings in his/her order, then those not-in-the-record factors are not before the Court and were not part of the lower court's decision and should not be part of the appellate court's rationale. Of course, addressing those "factors which may not readily appear in the appellate record" is a formidable, if not impossible task, for any counsel. A rule of judicial economy or deference should give way to a rule of record. If the motion for a new trial is denied then state the reasons on the record. Even simple evidentiary motions by counsel should state the reasons on the record. No less should be allowed for new trials. - Pain and suffering includes anguish and emotional distress.
Concentration on the 'pain' element of 'pain and suffering' to the total exclusion of the other components reflect poor analysis. Bayless made no mention at all of the mental suffering, anguish and inconvenience associated with a missed diagnosis, delay in treatment, and an unnecessary surgical procedure (albeit sufficiently anesthetized) with its subsequent recovery and therapy. In real life, every surgical procedure is cause for worry, plus the post-surgical worries and limitations for an additional time period following the failed recuperative time period from the missed diagnosis when the young man in Bayless thought he was well.
Back to the basics might help.
- "The words 'pain and suffering' as used in the law are a term of art meaning the 'physical pain and mental suffering' attendant to a personal injury." Department of Education v. Blevins, 707 S.W.2d 782, 785 (Ky.1986)(emphasis added).
- Restatement (Second) of Torts. Section 456 provides that:
"If the actor's negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for (a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it, and (b) further bodily harm resulting from such emotional disturbance. (emphasis added).
- Corrective surgery is not a novel concept within our medical or legal system and that fear and worry from surgery (especially unnecessary surgery) has happened before. My quick research found a corrective surgery appellate decision following a missed sponge when our Courts at an earlier time recognized "[t]hat appellant suffered some pain, discomfort and mental anguish as a result of that operation is not a matter of pure speculation and under these circumstances the mere fact that the negligence of appellee, [Dr.] Harter, caused appellant to be subjected to an additional surgical procedure, if that finding is made by a jury, is sufficient to support a reasonable recovery for pain and suffering. Laws v. Harter, 534 S.W.2d 449, Ky.,1976.
It should not be beyond the kith and kin of reasonable men and women, that someone who has been advised of all the risks of surgery and signed the detailed consent form and who is about to go under anesthesiology for what should have been an avoidable procedure might/probably/should have some worry, distress, and anguish as to his future outcome and hope another mistake is not made. Any competent physician will advise the patient of the risks and concerns with no guaranteed result. In this case, the young man did achieve a good result, but only through the passage of time was it finally determined that he had no limitations or increased risk of arthritis (all during which he might very well have had some concerns whether he would return to normal). - Finally, after all is said and done. Is this decision that significant? Well, yes and no.
Yes, because it reflects continued fuzzy and narrow thinking by courts which repeatedly ignore all the elements of pain, suffering, inconvenience, and mental anguish with a trusting regard that there must be some unarticulated and non-documented factors that the trial judge saw and relied upon to justify the deference to that judge's denial of a new trial motion.
No, because Miller v. Swift has not been extended, and the judicial analysis continues to rely upon the trial record in spite of the appellate court's stated deference to the trial judge. The appeals courts still list those factors upon which a jury may determine no pain was associated with the medical bills and treatment.
However, Miller and its progeny are really nothing more than an analysis of proximate cause of the damages associated with the injury. These causation issues are not a pretext for jury nullification, but are a legal requirement to support the verdict as the law requires.- Was there a pre-existing condition not aggravated by the accident?
- Was there an insignificant impact with no associated injury and nothing more than diagnostic treatment and testing?
- Was there a subsequent injury or trauma that was the cause of the pain?
- And in the medical negligence arena, was there really no difference in the pain associated with the second procedure compared to the missed diagnosis from the earlier procedure or was there no new or additional pain associated with the new procedure anyway?
In Miller v. Swift, 42 S.W.3d 599, 602 (Ky.,2001) Judge Keller wrote
"One of the issues that this jury was empaneled to decide was whether the accident aggravated or aroused Miller's pre-existing pain, and the parties actively contested this factual issue. The trial court properly instructed the jury regarding permissible damages for pain and suffering when pre-existing conditions may have been aggravated, [footnote omitted] and the jury concluded, on the basis of the evidence submitted to it, that Miller was not entitled to compensation for this item of damages. Even though they awarded Miller over $5000 in medical expenses and lost wages, the jury made a conscious decision to award nothing for pain and suffering."
"Because the parties litigated the question of whether Miller endured additional pain and suffering as a result of this collision and Swift solicited testimony which would support the jury's conclusion, we hold that the trial court did not abuse its discretion in denying Miller's new trial motion. (emphasis added)." Id."The civil justice system uses juries to decide exactly these types of factual disputes, and the testimony and evidence at trial in this case contained substantial support for the jury's verdict. Both parties presented the jury with probative evidence on the issue of whether this collision caused Miller any additional pain and suffering, and the trial court properly denied Miller's motion for a new trial (emphasis added)." Id.
And last but not least, remember that motor vehicle accidents and their injuries provide a specific statutory damage entitlement upon reaching a medical or injury threshhold for the award of "pain, suffering, inconvenience and anguish" - all of which be specifically delineated 'as the law from the judge' in the instructions (as well as any other negligence instruction). Furthermore, the Bayless case above will have no applicability to a surgical procedure following a car accident since the accident required the procedure in the first place.
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