No. 92-209 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

LUCILLE P. YOUNG and LAURENCE G. YOUNG, Plaintiffs and Appellants,

-vVEFW H. HORTON,M.D., Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Edward P. McLean, Judgepresiding.

COUNSEL OF RECORD: For Appellant: ErikB. Thueson, ThuesonLawOffice,Helena,Montana For Respondent: E. Craig Daue, Garlington, Lohn & Robinson, Missoula, Montana

submitted on Briefs: November 24, 1992 Decided: June 10, 1993Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from a Fourth Judicial District Court, Missoula County, jury verdict in 

### a medical malpractice action. There are several issues on appeal: Was there sufficient evidence to support the jury's verdict that Respondent Dr. Vern H. Horton (Horton) obtained informed consent for the surgery from Appellant Lucille Young (Young)?

Were expert opinion and medical journal articles erroneously admitted on the issue of memory and credibility? Did the court abuse its discretion when it refused to allow theAppellants Lucille and Laurence Young (Youngs) to ask hypothetical questions about the law during voir dire? Were the parties affected by a recess of 5 days and one

additional day later, during the trial and if so, was Appellants1right to a fair trial prejudiced because of the recesses? Lucille Young began experiencingpain in her right leg after walking and when she asked her familydoctor, Doctor Coriell about it, he determined that she was suffering from restriction of arterial circulation in the leg. He referred her to Horton for diagnosis and treatment of the problem. Horton scheduled an arteriogram for Young andwhenhe obtained the results,prescribed surgerytoalleviatethecondition. Hortonperformed an aorto-bifemoral bypass on March 3, 1988 at Missoula Community Hospital. As a complication of the surgery, Young suffered a thrombosis of the anterior spinal artery, resulting in paraplegia. The complaint in this actionwas filed on February 26, 1990. 1. Informed Consent Youngs arguethat therewas insufficientevidence forthe jury to conclude that Horton obtained informed consent. We cannot agree. This Court's function in reviewing jury verdicts is necessarilyvery limited. Wemust reviewtheevidence in a light most favorable to the prevailing party to determine whether substantial evidence supports the jury's verdict. This Court cannot reweigh the evidence or disturbthe findingsof a juryunless that evidence is so inherently impossible or improbable as not to be entitled to belief. Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 48, 803 P.2d 629, 636 (citationsomitted). Horton testified that he advised Young of the risks of the surgery, suchas death, lungdamage,andproblems withher heart or the graft or bleeding when he spoke with her and her husband, Laurence,onMarch 2, 1988 inher hospital room. Dr. Golding, one of Horton's medical experts, stated that Ifhisdiscussion...covers the significant risks of the operative procedure and would be the standard discussion that a surgeon would have with the patient prior to the surgery." Dr. Szilagyi, Horton's other medical expert,statedthat 'I [a] ccordingtotherecord,Dr. Horton informed thepatient and her husband fully in complete accordancewith what

now is generally regarded as duty of the surgeon." 3Although theYoungs disputethat therewas everanydiscussion about the risks of the operation, "when conflicting evidence exists, the credibility and 

### weight given to the conflicting evidence iswithin the jury'spro~ince.'~ 

### Whiting

### v. State (1991), 248 Mont. 207, 213, 810 P.2d 1177, 1181. 

### his Court will not overturn its determination by weighing conflicting evidence on appeal." Davisv. L.D.S. Church (l99O), 244Mont. 61, 68, 796 P.2d

The jury concluded that Horton obtained Young's informed consent beforeheperformed the surgery. We concludethat there is substantial credible evidence to support the jury's verdict that Horton obtained Youngtsconsent prior to her surgery. 2. Expert Opinion and Medical Journal Articles The scope of review for discretionary evidentiary rulings of the trial court,iswhether there has been an abuse of discretion. Steer Inc. 

### v. Department of Revenue (1990), 245Mont. 470, 475, 803

TheYoungs argue that the trial court improperly admitted four medical journal articles concluding that the majority of patients forget that they gave informed consent to their doctors prior to surgery. The Youngs contend these articles are improper for three

reasons: a. The articles lack probative value and are unfairly prejudicial. b. The expert testifying regardingthearticlesdidnot give his conclusion to a degree of medical 

### certainty. c. The respondent violated discovery rules.

a. TheYoungs statethat f'theissue

### of credibility is supposed 4to be decided by the jury--not by studies created by strangers which do not even fit the circumstances of the case." Respondent, however, contends that underRule 702, M.R.Evid., expert testimony is permitted Itif scientific knowledge will assist the jury to understand the evidence to determine a fact in issue.Ir We conclude that the medical articles and the related testimonywere admissible. The trial court ruled that the expert could testify and refer to themedical articlesbut they could not gobefore the juryas exhibits. Further,they couldbe referred to

as accepted studiesbut the expertwas not to testify as towhether Youngwas advised of the risks of surgery; thatwould be a question for the jury. vl[The] determination of relevancyand of the admissibility of evidence is within the discretion of the trial court. [W]e will not disturb the District Court's permission to admit the disputed

# ... testimony unless the court abused its discretion." Dahlin v. Holmquist (l988), 235 Mont. 17, 20, 766 P.2d 239,241. Here, the trial court carefully delineatedwhat was admissible and what was inadmissible. The expert's testimony was based on four medical journal articles and his own experience as a doctor. He did not testify on "theworkings of hermindtr nor did he commentas to whether Young had given informed consent. He did testify as to memory of a specific experience with which he had knowledge and used learned treatises as the basis of his testimony. Testimony by experts is admissible if scientific knowledge will assist the trier of fact to understand the evidenceor to determine 

### a fact in issue. Rule 702, ~.R.Evid. Here, the trial court determined that thismedical doctor had knowledge and experience to testify as to the authoritativeness of the medical journal articles and could assist the jury with informationabout surgical patients and their memory of informed consent. He could testify

### as to the conclusionsof themedical studiesand ofhis 

### own experience, but not as to the ultimate fact of whether Young gave Horton informed consent. Mahan 

### v. Farmers union Cent. Exchange (1989), 235Mont. 410, 421-422, 768 P.2d 850, 857. The trial court did not abuse itsdiscretion in admitting the four medical journal articlesand expert testimony

### as tohis experiencewith the subject matter. b. The Youngs argue that the medical expert did not render a vconclusionto a reasonable degree of medical certainty that these studies or the expert's opinion on them applied to [Young] and her memory," TheYoungs' objectioncameafterHortonfs attorneyasked the expert if his experience in his 

### own practice was consistent with a study in which most patients forgot the possible risks of 

### the surgery the doctor discussed with them. The Youngstattorney stated, "1 would object, Your Honor, on the grounds that opinions have tobe givenwith reasonable medical certainty." Thedoctor 

### in this case was not asked to give an opinion,rather, to speak of his past experience. Under Rule 702,M.R.Evid., an expertmay testify in the form of 

### an opinion or otherwise. His answer here was acceptable 

### in its form. c, The Youngs also argue that the medical articles wereinadmissible because they were unfairly surprised and Horton violated discovery rules. They further contend that they made several attempts during discovery to obtain this information,but it was not until after the pretrial conference that the articles and the expert's opinion were revealed. The Pretrial Order, Part VI states that "[tlhe parties shall exchange on or before November 27, 1991 any learned treatises, medical journal articles, or similar documentary proof that they may wish to use during the case in chief of the trial." On November 27, 1991, respondent's attorney sent two letters to appellants' attorney by telecopy. The first letter contained a list of medical journal articles the respondent planned to rely on during his case in chief. The second letter contains information regarding the issues about which the medical expert, Dr. Golding, would testify. These letters were providedwithin the schedule set out in the pretrial order of November 20, 1991. In addition, Part 111, Defendant's contentions 8 in the pretrial order, states that: "[s]urgical patients have a wellrecognized tendency recall (sic) poorly the risks about which they

were informed prior to the surgery. They tend to have greater recall of the information given to them before the surgery about the benefits of their operation. This contention provides sufficientnotice that thememory of giving informed consentwould be an issue for the respondent. The medical journal articles and the expert's testimony about patient recall about giving informed consent were properly admitted.3. Voir Dire The Youngs also argue that the trial court improperly restricted voir dire. They state that when their attorney attempted to ask the jurors whether they would follow the law on informed consent even if the surgery itself was technically correct, the trial court prevented them from asking any questions about the law at all, Horton counters that appellants had an opportunity to fullydiscuss the jurytsduty to adhere to the law

as the judge explains 

### it. IfAbsentan abuse of discretion.. .the trial court has great latitude in controlling voir dire." Priestv. Taylor (1987), 227 Mont. 370, 382, 740 P.2d 648, 655. (Citation omitted.) Upon reviewof thetrial transcript,thisCourt concludesthat the trial court did not abuse its discretion when it limited the Youngs1 attorney's voir dire. The Youngsfattorney

### was able toquestion the panel generally

as to whether they would follow the law as provided by the judge

even if philosophicallyopposed. He later attempted to inquire as towhether the potential jurorswould follow the particular law of informed consent. "The scope of questioning on voir dire is largely 

### a matter of discretion 

### for the trial judge who may set reasonable limits onthe examinationbut shouldpermit liberaland probing examination calculated 

### to discover possible bias or prejudice, with due regard to the interests of fairness to both parties." Hill v. Turley (1985), 218 Mont. 521, 520, 710 P.2d 50, 56. Here, the Youngstattorneyhad already elicited the assuranceof the jurors that they would follow the law given by the judge

even if they did not agree with the law. Anything more would be cumulativeand thetrial courtproperly exercised its discretionto

move the voir dire process along. 4. Recess during Trial Finally, the Youngs contend that their right to a fair trial was jeopardized by the interruptions during the course of the trial. The parties were given the trial schedule, including the two scheduled recesses at the pretrial conference on November 20, 1991. The trial started on December 2, continued on December 3, then a breakwas takenuntil December 9. The trial then continued

on December 10, recessed again on December 11 and concluded on December 12. We conclude that the trial courtdid not abuse itsdiscretion inconducting thetrial as scheduled. TheYoungs' attorneydid not object to the schedule at the pretrial conference nor did any jurors complain of problems due to the schedule. The Youngs presented no evidence of outside influences affecting the jury. When the court recessed on December 3, they were admonished not to discuss the case among themselves or anyone else. On December 10,before the trial was recessed until December 12, the court stated: The instruction Ihave been giving about not talking to anyone about this casebecomes particularly important at this time. It is necessary that you retain an open mind and not form any opinion prior to thismatter being submitted to you for your deliberations. In order to do that, we have to insure that you not discuss this case amongst yourselves or with anyone else, and that includes familymembers, prior to the matter being submitted to you for your deliberations.Any statements by appellants that they were prejudiced by the

recesses is speculation. The trial court did not abuse its discretion when it recessed for other court matters. AFFIRMED.

We Concur:Justice William E. Hunt, Sr., specially concurring. Iconcurwith themajority's decision upholding theverdict of the jury relating to the issue of informed consent. While conscious of the province of the jury in determining the facts, I must comment upon what the jury found to be "informed consent." The discussion took place in a stressful atmosphere which would not enable someone to be in the best frame of mind to give informed consent. Dr. Horton visited Mrs. Young the night before the operation. He explained the risks of the surgery in a couple of sentences. He did not provide her with any further explanation of the risks of the surgery, nor did he inform her of any alternative treatments that were available. Mrs. Young testified that she was frightened the day before the operation. Mrs. Young's surgery was merely an elective procedure. At the time of the conversation, the surgical team was placed together and bills for the surgerywere already being generated. Two doctors testified as expert witnesses for Dr. Horton stating that the explanation of the riskswas adequate. Mrs. Young

was unable to offer expert testimony to rebut those experts. Because she could not do so, the jury was left with no choicebut to reach the verdict that it did. For this reason, 

### I reluctantly

concur with the decision of this Court.