Keisic v. Valley Health Sys., LLC ( 2015 )

 and low sodium levels. 2 Testimony showed that Valley Health did not
follow its own policies regarding how lab results were to be reported to a
charge nurse or the treating physician. Lim testified, however, that he
would not have changed the treatment plan even if he had known of the
lab results.
Nurse Buenaflor, who treated Keisic, testified that a charge
nurse was informed of Keisic's lab results. Keisic protested this testimony
once outside the presence of the jury. He argued that the introduction of
testimony showing that there was a charge nurse indicated that Valley
Health committed a discovery violation. Keisic noted that he had
requested the names of all potential witnesses and that Valley Health
never disclosed a charge nurse. Valley Health stated that it did not know
of the charge nurse. The district court found that it was possible that
Valley Health did not know who the charge nurse on duty was. As a
remedy, the court ruled that Keisic was free to bring out the fact that no
charge nurse was ever disclosed.
While settling jury instructions, Keisic requested an
instruction on loss of chance of survival or recovery and increase of risk of
harm Keisic also asked for an extended instruction on proximate cause
discussing the substantial factor theory of causation. The court denied
both requests, finding lack of evidence for the former and that the latter
was encompassed in other instructions.
The jury returned a verdict in favor of respondents. The
verdict form indicated that the jury found both respondents had fallen
2According to emergency room records, Keisic consumed about eight
to ten beers per day.
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below their standards of care, but did not find the necessary causation
connecting their actions to Keisic's injuries.
Keisic moved for a new trial. He argued that the testimony
regarding a charge nurse showed that Valley Health committed a
discovery violation warranting a new trial. He also argued that the
district court erred by not giving his proposed jury instructions. The
district court denied the motion for a new trial.
On appeal, Keisic argues that 1) the district court erred by
denying his motion for a new trial on the ground that the respondents
failed to disclose the identity of the charge nurse; 2) the district court
erred by excluding Keisic's proposed jury instructions regarding loss of
chance and increase of risk and substantial factor theories of recovery; and
3) the district court abused its discretion when determining the standard
in denying Keisic's motion for a new trial. We conclude that the district
court did not err in denying the motion for new trial on the ground that
respondents failed to disclose the identity of the charge nurse. The jury
found a breach of duty without the charge nurse's testimony, thus, her
testimony would not have aided Keisic's case. We further conclude that
the district court did not err regarding the jury instructions because Keisic
failed to present statistical evidence that his chances of developing his
condition increased after the treatment and, therefore, entitled him to a
loss of chance instruction. Additionally, the instructions as a whole
covered the subject matter of the proposed substantial factor instruction.
Accordingly, we conclude that the district court did not abuse its discretion
when it chose the standard to determine whether a new trial was
warranted because there was no error to warrant a new trial under even
the most liberal of standards.
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Discovery of the Charge Nurse
Keisic contends that the district court erred when it denied his
motion for a new trial because the respondents failed to disclose the
identity of the charge nurse during discovery. We disagree.
We review a district court's decision to grant or deny a motion
for a new trial for an abuse of discretion. Gunderson v. MR. Horton, Inc.,
130 Nev., Adv. Op. 9, 319 P.3d 606, 611 (2014). A district court may, but
is certainly not required to, grant a motion for a new trial on numerous
grounds: irregular proceedings, misconduct, surprises that ordinary
prudence could not have guarded against, newly discovered evidence, or
errors in the law. NRCP 59(a). Nevada's civil rules require a party to
disclose "Mlle name and, if known, the address and telephone number of
each individual likely to have information discoverable under [NRCP]
26(b), including for impeachment or rebuttal." NRCP 16.1(a)(1)(A).
Here, the alleged ground for a new trial is an allegation of
withholding discoverable evidence. Nurse Buenaflor testified that the
charge nurse was aware of the lab results but that she did not know the
name of the charge nurse. The district court did not find it unbelievable
that Valley Health would not know, years later, the name of the charge
nurse on the day in question.
Even if the court found that the respondents purposely
withheld the information, the district court would still have been within
its discretion to deny the motion for a new trial First and foremost, the
jury's verdict shows the error was harmless because the jury concluded
that the respondents breached their duty. At most, the charge nurse's
testimony would only have solidified the result that Keisic had already
achieved without her. The jury decided against Keisic because he failed to
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prove causation, and the charge nurse's testimony would not have proved
causation. Additionally, the district court provided Keisic with a remedy
when it informed him that he would be entitled to bring out the fact that
the hospital never identified a charge nurse on duty.
Keisic failed to prove that the respondents committed a
discovery violation. Even if the respondents did commit a discovery
violation, disclosure of the charge nurse's identity would not have
improved Keisic's likelihood of success on the merits. Therefore, the
district court did not abuse its discretion when it denied Keisic's motion
for a new trial.
Jury Instructions
Keisic contends that the district court abused its discretion
when it decided to exclude his proposed jury instructions regarding 1) loss
of chance and increased risk and 2) substantial factor analysis.
"A district court's decision to give a jury instruction is
reviewed for an abuse of discretion." Posas v. Horton, 126 Nev. 112, 115,
228 P.3d 457, 459 (2010). An erroneous jury instruction, or the erroneous
failure to instruct, is cause for reversal only if a different result may have
been reached had the error not occurred. Id.Loss of Chance / Increased Risk Instruction
Keisic argues that the district court abused its discretion by
not instructing the jury that the respondents may be held liable for
malpractice if they reduced his chance of survival or recovery or increased
his risk of harm. Respondents argue that because Keisic did not present
any statistical evidence that there was a chance he would not have
developed the disease in the absence of malpractice, he merely insisted
that he would not have developed the disease at all, so he was not entitled
to a loss of chance instruction. We agree. Atkinson v. MGM Grand Hotel,
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Inc., 120 Nev. 639, 642, 98 P.3d 678, 680 (2004) (stating that a party is
entitled to a jury instruction on his theory of the case if the theory is
supported by the evidence).
We have adopted the loss-of-chance doctrine, holding "[in
cases in which the plaintiff prevails, it can be said that the medical
malpractice more probably than not decreased a substantial chance of
survival and that the injured person ultimately died or was severely
debilitated." Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 6, 805 P.2d 589,
592 (1991) (emphasis omitted).
In Prabhu v. Levine, 112 Nev. 1538, 1544, 930 P.2d 103, 107
(1996), we considered whether sufficient evidence supported a loss-of-
chance verdict. There, the evidence included expert testimony and
statistics that showed that by not timely treating a tumor, Dr. Prabhu
decreased the plaintiffs chances for a favorable recovery. Id. The jury
heard evidence that showed that 1) the plaintiffs prognosis would have
been better if the tumor had been caught earlier; and 2) medical
negligence allowed the tumor to grow, thus decreasing chances of recovery.
Id. at 1544-45, 930 P.2d at 107-08.
Here, Keisic presented no evidence that his chances of
developing the disease increased after the malpractice. Dr. Madias, an
expert witness, testified that a patient suffering from low sodium will have
an increased chance of developing Osmotic Demyelination Syndrome if
sodium levels are raised too quickly. However, there was no testimony
showing what Keisic's chances of developing the disease were before
treatment. Ultimately, the jury could not compare Keisic's chances before
and after treatment and, therefore, could not rationally conclude that he
had lost any chance of survival or that his risk had increased.
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Accordingly, Keisic was not entitled to the loss of chance and increased
risk instruction and the district court did not abuse its discretion in
excluding the proposed instruction.
Substantial Factor Analysis Instruction
Keisic contends that the district court abused its discretion by
declining to give his proposed jury instruction, which was a more detailed
version of the substantial factor instruction that the district court gave to
the jury. Specifically, Keisic's proposed instruction contained language
that would have allowed the jury to rely on human experience instead of
mathematical certainty. He claims this was necessary because the
testimony at trial confused the distinction between proximate cause and
scientific certainty.
The respondents contend that human experience and not
needing mathematical certainty were covered in other instructions, and
that this case was not more unique than a typical medical malpractice
claim. We agree. Beattie v. Thomas, 99 Nev. 579, 583-84, 668 P.2d 268,
271 (1983) ("If the other instructions given to the jury adequately cover
the subject of the requested instruction, . . the trial court should not give
it.").
Here, the district court instructed the jury that the plaintiffs
burden of proof was to present evidence that was more likely true than
not. Keisic had no burden to prove absolute certainty. Thus, the jury was
adequately instructed that it was to focus on a balance of probability and
did not need to eliminate all possibility. Further, Keisic provides no
authority that a specific instruction regarding causation does not need to
be mathematically proven, nor did he show that it is even an accurate
statement of law, thus, we will not intervene. Edwards v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)
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(stating that we need not consider claims that are not cogently argued or
supported by relevant authority). Therefore, we conclude that the district
court did not abuse its discretion by denying Keisic's proposed instruction.
Cf. Ins. Co. of the West v. Gibson Tile Co., 122 Nev. 455, 463, 134 P.3d 698,
702-03 (2006) ("The district court has broad discretion to settle jury
instructions, and a district court's decision to give a particular instruction
will not be overturned absent an abuse of discretion or judicial error."
(internal quotations omitted)). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
;1°74
Douglas
J.
cc: Hon. Kenneth C. Cory, District Judge
Thomas J. Tanksley, Settlement Judge
Shook & Stone, Chtd.
Maupin Naylor Braster
David N. Frederick
Bailey Kennedy
Hall Prangle & Schoonveld, LLC/Las Vegas
Mandelbaum, Ellerton & Associates
Eighth District Court Clerk
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