PUBLISHED OPINION
Case No.: 94-2807
Complete Title
of Case:
RADUNKA RUNJO,
Plaintiff-Appellant,
v.
ST. PAUL FIRE & MARINE INSURANCE
COMPANY and DONALD J. CHRZAN, M.D.,
Defendants-Respondents.
Submitted on Briefs: September 6, 1995
Oral Argument: ----
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: October 10, 1995
Opinion Filed: October 10, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: FRANK T. CRIVELLO
so indicate)
JUDGES: WEDEMEYER,
P.J., SULLIVAN and FINE, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the plaintiff-appellant the cause was submitted on the briefs of Kenan J.
Kersten and Leslie Van Buskirk of Kersten & McKinnon, S.C.
of Milwaukee.
Respondent
ATTORNEYSFor
the defendants-respondents the cause was submitted on the briefs of Michael
J. Hogan and Stephen W. Pasholk of Hogan, Ritter, Minix &
Comeau of Milwaukee.
|
COURT OF APPEALS DECISION DATED AND RELEASED October 10, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2807
STATE
OF WISCONSIN IN COURT OF
APPEALS
RADUNKA RUNJO,
Plaintiff-Appellant,
v.
ST. PAUL FIRE &
MARINE INSURANCE
COMPANY and DONALD J.
CHRZAN, M.D.,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
FRANK T. CRIVELLO, Judge. Reversed
and cause remanded.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
WEDEMEYER, P.J. Radunka Runjo appeals from a judgment
dismissing her malpractice complaint against Donald J. Chrzan, M.D. and St.
Paul Fire & Marine Insurance Company.
Runjo claims that the verdict questions and jury instructions regarding
damages were improperly formulated so as to be confusing and inconsistent. Because the directions contained in the
verdict, when combined with certain jury instructions were confusing and
inconsistent causing prejudice, we reverse and remand for a new trial.[1]
I. BACKGROUND
Runjo filed a medical
malpractice action against Chrzan alleging both negligence and failure to
obtain informed consent before performing elective facial plastic surgery to
decrease the size of her nose. Runjo
claims the surgery caused permanent injury and disfigurement. Runjo timely requested a verdict form
wherein the jury was directed to answer the damage questions only if it
answered “yes” either to the question inquiring whether negligence found by the
jury was causal or to the question inquiring whether failure to obtain informed
consent was causal.[2] Over Runjo's objection, the trial court
decided to direct the jury to answer the damage questions regardless of how it
answered the liability questions.[3]
When the
trial court instructed
the jury, it
included the following
pertinent
directions:
Certain
questions in the verdict are to be answered only if you have answered a
preceding question in a certain manner.
Therefore, read the introductory portion of each question very carefully
before you answer it. Do not needlessly
answer questions.
I
will go over the first four questions with you. Question No. 1 says: Was Dr.
Chrzan negligent in treating Ms. Runjo?
A place for you to answer yes or no.
Question No. 2 says: If your
answer to Question No. 1 is yes, then answer this question. Was such negligence a cause of injury or
damage to Ms. Runjo? And a place for
you to put yes or no. You only answer
No. 2 if you have answered No. 1 yes.
Question No. 3 says: Did Dr.
Chrzan perform any of his surgical procedures on Ms. Runjo without obtaining
her informed consent? And a place for
yes or no. And Number 4: If your answer to Question No. 3 is yes,
then answer this question. Was such
failure to obtain informed consent a cause of injury or damage to Ms.
Runjo? And a place for yes or no. So you see, you only answer No. 4 if you
answered No. 3 yes.
....
If you awar[d] damages in this case, those
damages are to be awarded as compensation for such impairment or damage to Ms.
Runjo's condition or appearance as was a natural result of Dr. Chrzan's
treatment.
After the trial court
informed the jury about the duty of Dr. Chrzan as a surgeon and his duty to
adequately inform a patient, the trial court further instructed the jury:
A
causal relationship exists between the surgeon's negligence and failing to
adequately disclose the risks and advantage of the proposed operation, and the
injury and damage to the plaintiff.
If
it has been proved to your satisfaction that had a reasonable person placed in
the plaintiff's position that adequately informed of all the significant risks
of the proposed operation, the person would not have consented to the
operation.
The
following are the damage questions.
Number 5(a) through 5(c) set forth in the verdict. They read as follows: First there is an introductory paragraph
that says, you must answer the following paragraph regardless of how you have
answered the proceeding questions.
....
You
must answer the damage questions no matter how you answered any of the previous
questions in the verdict. The amount of
damages, if any, found by you should [not] in any way be influenced or affected
by any of your previous answers to questions in the verdict.
....
Question
5(c) asks what sum of money will fairly and reasonably compensate Radunka Runjo
for the pain, suffering and disability sustained by Radunka Runjo as a result
of the injuries. You will answer this
question by inserting such a sum of money as you are satisfied will fairly and
reasonably compensate Radunka Runjo for such pain and suffering ....
....
If you have determined that a reasonable person
in Radunka Runjo's position would not have consented to the operation had the
reasonable person been fully informed of the possible risks and advantages, you
will insert as your answer to the damage question the amount of money which
under the evidence will reasonably and fairly compensate Radunka Runjo for the
injury suffered by Radunka Runjo as a result of the operation.
(Emphasis
added).
The action was tried to
a jury that returned a verdict: (1) finding that Chrzan was not negligent
in treating Runjo; (2) finding that Chrzan did not perform Runjo's
procedures without obtaining her informed consent; (3) awarding damages to
Runjo of $15,000 for past and future hospital/medical expenses, $2,200 for loss
of earnings, and $24,500 for past and future pain, suffering and
disability. Runjo moved to set aside
the verdict and for a new trial. Her
motion was denied. Judgment was entered
dismissing her complaint and she now appeals.
II. DISCUSSION
Runjo claims she is entitled
to a new trial because the jury instructions, when combined with the special
verdict, were inconsistent and confusing to the jury. Runjo argues that the inconsistency and confusion arose from the
fact that the instruction, on the one hand, directed the jury to award damages
no matter how it answered the preceding liability questions and, on the other
hand, directed the jury to award damages only if a reasonable person in Runjo's
position would not have consented to the operation had she been fully informed. We agree that the instructions, combined
with the special verdict, were inconsistent and confusing to the jury.
In response, Chrzan
argues that there is no basis in the record for the proposition that the jury
was misled or confused in any way as evidenced by the absence of any question
directed to the trial court by the jury during deliberations. Chrzan points out that the jury instructions
at issue are standard civil instructions suggested by the Wisconsin Civil Jury
Instructions Committee. In addition,
the verdict form is of a standard content and reflects the well-recognized
policy in this state that a jury is not to be informed of the effect of its
verdict. Finally, Chrzan contends, “the
instructions and verdict ... fairly address the factual issues of this case as
both addressed issues of negligence and informed consent.” We are not persuaded by Chrzan's arguments.
A trial court has wide
discretion in framing the special verdict.
Maci v. State Farm Fire & Casualty Co., 105
Wis.2d 710, 719, 314 N.W.2d 914, 919 (Ct. App. 1981). We shall not reverse unless the question does not fairly
represent the material issue of fact to the jury. Id.
Similarly, trial courts have wide discretion in deciding what
instructions will be given so long as they fully and fairly inform the jury of
the principles of law applied to the particular case. D.L. v. Huebner, 110 Wis.2d 581, 624, 329 N.W.2d
890, 909 (1983). Still, a trial court
has the duty to present to the jury instructions “adequate to enable it to
intelligently perform its function.” Haefner
v. Batz Seed Farms, Inc., 255 Wis. 438, 440, 39 N.W.2d 386, 387
(1949). Misleading instructions and
verdict questions which may cause jury confusion are a sufficient basis for a
new trial. Behning v. State
Fireworks Mfg. Co., 57 Wis.2d 183, 188, 203 N.W.2d 655, 658
(1973). We test the prejudicial effect
of an improperly given instruction by determining whether the jury was probably
misled. D.L., 110 Wis.2d
at 628, 329 N.W.2d at 911.
The purpose of all judicial
process is to achieve justice. In
applying our well recognized procedural rubrics and standards of review, we
must be ever vigilant that justice is secured and process does not become an
unwelcomed impediment. The existence of
exceptions in our standard form of process serves to eliminate the unwarranted
and unreasonable hardships that are inflicted by procrustean application of
these very same processes. Where jury
instructions appear on their face inconsistent and confusing, we are required
to examine the context in which the jury received the contradicting
instructions to determine whether the verdict itself inspires no confidence.
The damage instructions
given to the jury, both in the verdict form and as actually read to them,
unquestionably directed the jury to award damages regardless of the answers it
made to the liability questions. In
juxtaposition, however, the jury instructions also unquestionably instructed
the jury to only award damages “if you have determined that a reasonable person
in Radunka Runjo's position would not have consented to the operation.” Although neither instruction, in and of
itself, is an erroneous statement of the law, when juxtapositioned as they were
in this case, their combination served only to mislead and confuse. The fact, however, that each instruction alone
was not erroneous does not salvage the reversible error. See Ackley v. Farmers Mut.
Automotive Ins. Co., 273 Wis. 422, 425, 78 N.W.2d 744, 746 (1956)
(improper instruction on a given subject is not cured by the fact that the law
is correctly stated elsewhere); see also Savina v. Wisconsin Gas
Co., 36 Wis.2d 694, 703, 154 N.W.2d 237, 241 (1967) (“A correct
statement in another part of the instruction sometimes does not correct but
only confuses the jury.”). Further,
Chrzan's argument that the instructions at issue are standard instructions
suggested by the Wisconsin Civil Jury Instructions Committee does not alter our
conclusion. Although pattern jury
instructions may be persuasive authority, they are not precedential
authority. See State v.
O'Neil, 141 Wis.2d 535, 541 n.1, 416 N.W.2d 77, 80 n.1 (Ct. App. 1987).
We conclude that the
combination of these instructions, together with the instructions on the
verdict, probably misled the jury and resulted in an inconsistent verdict. To the liability question of whether Dr.
Chrzan had performed any surgical procedures on Runjo without obtaining her
informed consent, the jury answered
“no.” In sequence, however, the jury
was instructed to award damages only if there was a determination that a fully
informed reasonable person would not have consented to the medical
procedure. In other words, in contrast
to the general instruction to award damages regardless of the liability
answers, the jury was also instructed to award damages only if they
found Chrzan did not obtain informed consent.
The impact on the verdict, in light of the inconsistent instructions, in
effect, allowed the jury to answer “no” and “yes” to the same question. It allowed the jury to find that Chrzan did
obtain informed consent in answering the liability question, but also to find
that Chrzan did not obtain informed consent by awarding damages. Such a result could only have arisen from
confusion.
Accordingly, we must
reverse the judgment and remand for a new trial.
By the Court.—Judgment
reversed and cause remanded.
[1] Runjo also raises the following issues of error: (1) the evidence was insufficient to support the jury's verdict in regard to informed consent and negligence; (2) the trial court erroneously exercised its discretion in granting a motion in limine brought by the defense; and (3) the trial court erroneously exercised its discretion by failing to strike certain opinion testimony and subsequently failing to give the jury an instruction of admonition. Because of our disposition of this case, it is not necessary for us to address these additional claims of error. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).
[2] Runjo's requested verdict
provided:
The plaintiff, by Kersten & McKinnon,
S.C., her attorneys, requests the following form of jury verdict herein:
Question No. 1: Was Dr. Chrzan
negligent in treating Mrs. Runjo? YES
_____ NO _____
Question No. 2: If you have
answered question no. 1 yes, then answer this question: Was such negligence a cause of injury or
damage to Mrs. Runjo? YES _____
NO _____
Question No. 3: Did Dr. Chrzan
perform any of his surgical procedures on Mrs. Runjo without obtaining her
informed consent? YES _____ NO _____
Question No. 4: If you have
answered question no. 3 yes, then answer this question: Was such failure to obtain informed consent
a cause of injury or damage to Mrs. Runjo?
YES _____ NO _____
The following question should be answered
only if you have answered “yes” to either
question no. 2 or question No. 4.
Question No. 5: What sum of
money will fairly and reasonably compensate Mrs. Runjo for:
A. Her pain, suffering and
disability? $
B. Hospital and medical
expenses? $
C. Loss of earnings? $
[3]
The actual verdict submitted in this case provided:
QUESTION NO. 1
Was Dr. Chrzan negligent in treating Mrs.
Runjo?
ANSWER:
No
Yes
or No
QUESTION NO. 2
If your answer to Question No. 1 is “Yes”,
then answer this question: Was such negligence a cause of injury or
damage to Mrs. Runjo?
ANSWER:
N/A
Yes
or No
QUESTION NO. 3
Did Dr. Chrzan perform any of his surgical
procedures on Mrs. Runjo without obtaining her informed consent?
ANSWER:
No
Yes
or No
QUESTION NO. 4
If your answer to Question No. 3 is “Yes”,
then answer this question: Was such
failure to obtain informed consent a cause of injury or damage to Mrs. Runjo?
ANSWER:
N/A
Yes
or No
YOU MUST ANSWER THE FOLLOWING QUESTION REGARDLESS OF HOW
YOU HAVE ANSWERED THE PRECEEDING [sic] QUESTIONS:
QUESTION NO. 5
What sum of money will fairly and
reasonably compensate Mrs. Runjo for:
(A) Past
& future hospital and
medical expenses? $ 15,000.00
(B) Loss
of earnings? $ 2,200.00
(C) Past
& future pain, suffering
and disability? $ 24,500.00
Dated at Milwaukee, WI this 20 day of May,
1994.
/s/
Dennis O. Hibner
Foreperson
Dissenting Jurors Question
Numbers
/s/ Donna Lohr #3
/s/ Clarence Manns #3