This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Carol-Lynn Billingsley, et al.,





Reinold H. Plate, M.D., et al.,




Filed May 28, 2002

Reversed and remanded

Anderson, Judge


Steele County District Court

File No. C599845


Teresa F. McClain, Mark A. Hallberg, Mackenzie & Hallberg, P.A., 150 South Fifth Street, Suite 2500, Minneapolis, MN  55402 (for appellants)


Steven R. Schwegman, Mary B. Mahler, Quinlivan & Hughes, P.A., 400 South First Street, Suite 600, P.O. Box 1008, St. Cloud, MN  56302 (for respondents)


            Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N


            This case arises from a jury trial in a medical-malpractice action.  The jury, by special verdict, found appellant Carol-Lynn Billingsley negligent and 90% at fault, and found respondent physician Reinold Plate negligent and 10% at fault.  The jury awarded appellants no damages.  Appellants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial.  The district court denied both motions.  Because we conclude that statements during closing arguments by respondents’ counsel were prejudicial and not supported by the evidence, we reverse and remand for a new trial. 


            On Friday, June 19, 1998, Carol-Lynn Billingsley (Billingsley) went to see Dr. Patrick Greenwood because of a sore neck.  Dr. Greenwood diagnosed a pulled muscle and ordered medication.  Her pain continued through the weekend and during the next week, even with the prescribed medication.  Eventually, her husband, John Billingsley, made an appointment for her to see Dr. Plate on Thursday, June 25, 1998. 

            Billingsley told Dr. Plate at the first examination that she had numbness and tingling in her arms.  Dr. Plate performed a focused physical examination of Billingsley’s neck and the muscles surrounding her spine; Dr. Plate testified that no imaging study was conducted because, with neck pain or cervical strain, such testing does not usually yield useful information.  Dr. Plate prescribed physical therapy and a different medication, and told Billingsley that if her symptoms became worse, she should return for another examination.  Billingsley went to physical therapy the same day, but it did not alleviate her pain.  She went to physical therapy again the next day, Friday, June 26, when she experienced electric sensations in her arms and legs. 

            Billingsley went to Dr. Plate’s office again on that Friday afternoon, after the physical therapy appointment.  Dr. Plate testified that he wanted to reexamine Billingsley because he believed the electric sensations were new symptoms, and he wanted to reevaluate her condition.  He did not believe, however, that he was dealing with an emergency because the symptoms were developing slowly.  Dr. Plate prescribed new medication and scheduled an MRI for Tuesday, June 30, the next day the machine was available. 

            John Billingsley testified that his wife’s condition was in a declining state that evening.  By Saturday, June 27, she needed assistance using the bathroom and became incontinent.  He asked her if she wanted to return to the clinic, but she responded that she wanted to wait and see if the medications would work.  In fact, she refused, several times, to go to the hospital on Saturday. 

            On Sunday morning, June 28, Billingsley was non-responsive and her husband called for an ambulance.  Late Sunday night, doctors discovered an epidural abscess in her neck and they operated early Monday morning.  Because of the damage caused by the abscess, Billingsley is now a quadriplegic. 

            Billingsley brought a malpractice action alleging, inter alia, that Dr. Plate had been negligent in his treatment of her.  Respondents successfully moved in limine to amend their answer to plead comparative fault as an affirmative defense. 

            During closing arguments, counsel for respondents referenced medical reports prepared by Dr. Laurie Dunn (Dunn), a clinical psychologist who treated Billingsley after she became paralyzed.  The parties agree that Dunn’s reports were never admitted into evidence. 

            In her reports, Dunn recounted her sessions with Billingsley.  During one of those sessions, Dunn asked Billingsley about the source of her paralysis.  Dunn reported:

She immediately described it as being due to the abscess and not having gone to the dentist.  She described some sense of self blame.  She was unclear whether there were similar feelings from family members towards her. 


Dunn also documented that Billingsley believed that there was an “element of anger in her family due to the sequence of events that [led] up to” Billingsley’s paralysis. 

            Immediately after the jury’s verdict finding Billingsley 90% at fault and awarding no damages, appellants moved for judgment notwithstanding the verdict, or in the alternative, for a new trial.  Appellants’ claims were partially based on the statements made by respondents’ counsel during closing arguments.  Appellants also claimed that the verdict was not supported as a matter of law and was the result of passion or prejudice.  The district court denied all of appellants’ motions, and this appeal followed. 



            Appellants claim the district court abused its discretion by instructing the jury on the theory of comparative fault. 

District courts are allowed considerable latitude in selecting the language of jury instructions, and we will not reverse a decision concerning instructions absent an abuse of discretion.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  Generally, a new trial is not warranted if the instructions fairly and correctly state the applicable law.  Alevizos v. Metropolitan Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). In addition, a party is entitled to a specific instruction on his or her theory of the case if there is evidence to support the instruction and it is in accordance with applicable law.  Cornfeldt v. Tongen, 262 N.W.2d 684, 698 (Minn. 1977).


Shea v. Esensten, 622 N.W.2d 130, 137 (Minn. App. 2001).

            Minnesota adopted the Comparative Fault Act in 1969 and comparative fault replaced the doctrine of contributory negligence in tort claims.  1969 Minn. Laws ch. 624, § 1.  The act is codified in chapter 604 of the Minnesota Statutes.  Minn. Stat. § 604.01 (2000).[1]  Comparative fault, also referred to as comparative negligence, is based on the theory that a plaintiff may be negligent and still recover damages. 

            It is well-settled that the principle of comparative fault may be applied in medical-malpractice cases.  See Sandhofer v. Abbott-N.W. Hosp., 283 N.W.2d 362, 368 (Minn. 1979) (“Apportionment of negligence is the function of the jury.” (citations omitted)); Martineau v. Nelson, 311 Minn. 92, 101-02, 247 N.W.2d 409, 415 (1976); Rosenthal v. Kolars, 304 Minn. 378, 380-81, 231 N.W.2d 285, 286-87 (1975); Shea, 622 N.W.2d at 137-38.  In comparing negligence, a jury may consider the fault of both the physician and patient.  See Tomfohr v. Mayo Found., 450 N.W.2d 121, 123 (Minn. 1990) (“Ordinarily, in a death by wrongful act negligence case, any fault attributable to a patient is compared with that attributable to the defendant medical provider.”).

            Appellants argue, based on Martineau, that it is improper as a matter of law to instruct the jury on a theory of comparative fault in a medical-malpractice case because the comparative-fault defense

has been limited to circumstances where the patient has: (1) refused specific treatment against medical advice; (2) failed to follow specific instructions of a physician; or (3) [gave] false or misleading information concerning symptoms. 


But Martineau states only that the

contributory negligence defense in a malpractice case is limited because of the disparity in medical knowledge between the patient and his doctor and because of the patient’s right to rely on the doctor’s knowledge and skill in the course of medical treatment. 


Martineau, 311 Minn. at 102, 247 N.W.2d at 415.  Martineau recognized the limitations of a comparative-fault defense in medical-malpractice cases, but does not restrict it necessarily to the three sets of circumstances cited by appellants.  The foundation of the Martineau analysis is that it is unfair to expect a patient to have the same knowledge and duty as a physician.  Id.  But here, the evidence shows that Billingsley did not go to the hospital on Saturday, June 27, when her symptoms dramatically worsened.  Because her refusal to seek medical treatment when faced with an obvious decline in her physical condition has no disparity-of-knowledge implications, Martineau simply does not apply.  It was appropriate and proper, given the facts of this case, to allow the jury to compare the negligence of the physician with the negligence of the patient who did not seek additional treatment. 

            Even if Martineau limited comparative fault to the three sets of circumstances cited by appellants, the jury could still find Billingsley was negligent by failing to follow the instructions of her physician.  There is evidence in the record that Dr. Plate always told his patients to return to see him if their symptoms worsened.  The record indicates that Billingsley’s symptoms did worsen on June 27 when she became incontinent.  Because the jury could find that Billingsley’s failure to return to Dr. Plate that day constituted a failure to follow specific instructions, an instruction on comparative fault was appropriate even under appellant’s narrow reading of Martineau.  There was no abuse of discretion by the district court.


            The decision to grant a new trial based on claimed attorney misconduct rests wholly within the district court’s discretion.  Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994).  The misconduct must clearly result in prejudice to the losing party to warrant a new trial.  Eklund v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 350 (1974).  The district court judge is best positioned to determine whether an attorney’s misconduct has tainted the jury’s verdict.  Johnson, 518 N.W.2d at 601. 

            Appellants argue that the closing argument reference to Dunn’s reports constituted misconduct because it did not fairly represent the content of the reports and because the reports were never admitted into evidence.  But appellants neither objected to the remarks before the jury retired to deliberate nor requested a curative instruction.  An objection to improper remarks, a request for curative instructions, and a refusal by the district court to take curative action are generally prerequisites to obtaining a new trial on appeal, except where misconduct is so flagrant as to require the court to act on its own motion or is so extreme that a corrective instruction would not have alleviated the prejudice.  Bisbee v. Ruppert, 306 Minn. 39, 47-48, 235 N.W.2d 364, 370-71 (1975); Patton v. Minneapolis Street Ry. Co., 247 Minn. 368, 375-76, 77 N.W.2d 433, 438-39 (1956); Janicke v. Hilltop Farm Feed Co., 235 Minn. 135, 141-42, 50 N.W.2d 84, 87-88 (1951). 

            The paramount consideration in determining whether a new trial is required in a case such as this is whether prejudice occurred.  Boland v. Morrill, 270 Minn. 86, 100, 132 N.W.2d 711, 720 (1965).  The prejudice must be such that it affected the outcome of the case.  Id.  Even statements that are unfair may not be prejudicial enough to require a new trial.  Id. at 99-100, 132 N.W.2d at 720.  Therefore, we must decide whether the “conduct was so prejudicial that it would be unjust to allow the result to stand.”  Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 (Minn. 1981) (citation omitted). 

            During his closing argument, respondents’ counsel stated:

And, in fact, when you look in the records, I had made mention of psychiatric records and a Lori Dunn, a psychologist that Mrs. Billingsley had discussed her concerns and her frustrations with, and she had told Dr. Dunn -- and these are in the records from Lori Dunn, clinical psychologist -- that her problems in her abscess was ultimately caused because she didn’t go to the dentist and that her family was extremely angry with her because of her unwillingness to seek treatment on June [27th] [sic], 1998. 


(Emphasis added.)

Appellants argue that the remarks do not fairly represent Dunn’s reports. 

            While the closing arguments vaguely track Dunn’s comments regarding the Billingsley’s sense of blame and the cause of her quadriplegia, the characterization of her family as “extremely angry” with her was clearly prejudicial and beyond the scope of the reports.  The jury had to decide whether Billingsley’s negligence and that of her treating physician were direct causes of her injury, as well as the comparative fault of each party.  The closing argument went to the heart of that issue, by stating that Billingsley’s family blamed her for not returning to see Dr. Plate but also that the family was “extremely angry” about her failure to do so.  These were powerful and damaging arguments not supported by evidence in the record.  Respondents claim the final argument did not go beyond fair inferences from the medical reports.  But the characterization of her family as “extremely angry” with Billingsley is simply unsupported by anything in the record or by Dunn’s non-admitted medical report.

            We conclude that even if a corrective instruction had been sought, it could not have countered the prejudice suffered by appellants, and, thus, we reverse and remand for a new trial.  Bisbee, 306 Minn. at 47-48, 235 N.W.2d at 370-71. 

            Our decision to remand for a new trial is bolstered by the fact that Dunn’s report was not admitted into evidence, however inadvertent the failure to admit the report might have been.  The supreme court has recognized that in cases with closely balanced evidence, a new trial is warranted where non-admitted, or excluded, evidence is argued.  Brown v. St. Paul City Ry. Co., 241 Minn. 15, 23, 62 N.W.2d 688, 694 (1954) (“Where the evidence is so closely balanced, it might well be that the improper use of the excluded portion of the hospital record was sufficient to tip the scales in favor of plaintiff.”); Maher v. Roisner, 239 Minn. 115, 117-18, 57 N.W.2d 810, 811-12 (1953) (“In the case of an error involving the exposure to the jury of material evidence not properly admitted, it is possible that instructions could not have cured the resulting damage. * * *  This is especially true when the evidence is as close as it is in the case at bar.” (citations omitted)).

            The evidence was close in this case, with respondents relying primarily on the cross-examination of appellants’ expert medical witnesses to prove their comparative-fault defense.  The prejudicial character of the statement regarding Dunn’s reports, after considering the close nature of the evidence, requires a remand for a new trial. 

            Notwithstanding the normal deference to a district court’s decision as to whether a new trial should be granted, we must reverse.  After reviewing the record, we conclude the district court abused its discretion by denying appellants’ new trial motion.


            On review, we will not set aside answers to special-verdict questions “unless they are perverse and palpably contrary to the evidence,” or unless the evidence is so clear that there is no room for differences among reasonable people.  Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993). 

The evidence must be viewed in a light most favorable to the jury verdict.  If the jury’s special verdict finding can be reconciled on any theory, the verdict will not be disturbed.


Id. (citations omitted).

            Because we remand for a new trial on all issues, we need not address appellants’ assertion that the verdict was perverse and palpably contrary to the evidence. 

            Reversed and remanded.

[1] The statute states, in part:

Contributory fault does not bar recovery in an action by any person or the person’s legal representative to recover damages for fault resulting in death, in injury to person or property, or in economic loss, if the contributory fault was not greater than the fault of the person against whom recovery is sought, but any damages allowed must be diminished in proportion to the amount of fault attributable to the person recovering.  The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each party and the court shall then reduce the amount of damages in proportion to the amount of fault attributable to the person recovering.

Minn. Stat. § 604.01, subd. 1 (2000).