2004-422, DEREK O'DONNELL & a. v. HCA HEALTH SERVICES of NH, INC. d/b/a PARKLAND MEDICAL CENTER & a.

and remand. of Ashley in January 1999. We affirm in part, reverse in part, vacate in part, negligent infliction of emotional distress, stemmi ng from labor and the delivery Ashley O’Donnell, a minor, damages for medical malpractice, negligence, and Derek and Melissa O’Donnell, individually and as parents and next friend of NADEAU, J. This appeal follows a jury trial awarding the plaintiffs,

Todd Hathaway on the brief, and Mr. Scheer orally), for the defendants. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Marc R. Scheer and

for the plaintiffs. and T roubh Heisler of Portland, Maine (John P. Flynn on the brief and orally), Maggiotto & Belobrow, PLLC, of Concord (Paul A. Maggiotto on the brief),

No. 2004 - 422 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Ashley, none of which were successful. After these attempts failed, the doctor previous difficulties. The doctor attempted several maneuvers to deliver clotting her daughter was experiencing, and advised the doctor of Melis sa’s room, spoke with the delivery doctor and expressed concern for the extensive experiencing. Melissa’s mother, Jane Sawyer, also present in the delivery requested a cesarean section delivery due to the difficulties she was dystocia again arose as a complication. As the labor progressed, Melissa Center for a planned induction of labor and delivery. During delivery, shoulder On January 13, 1999, Melissa was admitted to the Parkland Medical

that Ashley would be larger than the plaintiffs’ first child. Melissa suffered from early - stage preeclampsia and pre - natal tests indicated Melissa’s third pregnancy, did they seek to obtain the records even though However, Parkland Physician Services nev er obtained the records. Nor, during authorization allowing them to obtain the medical records of her prior delivery. complications during her first pregnancy and signed a medical release At that time, she advised her treating physician at Parkland of general established obstetric care with the defendant, Parkland Physician Services, Inc. For her second pregnancy in 1997, which ended in miscarriage, Melissa

deliveries by Melissa O’Donnell. presence of seve re shoulder dystocia, and recommended against future vaginal delivered quickly. In the post - delivery medical records, Dr. Miller noted the condition that could result in profound injury or death if the baby is not pubic bone, preventing delivery. Shoulder dystocia is a serious obstetrical shoulder dystocia, a complication in which the baby’s shoulder cont acts the M.D., in 1991. During that delivery, complications arose as a result of The delivery of plaintiffs’ first child was performed by Patricia Miller,

obstetrical eme rgency resulting in the nerve injury. plexus nerve injury. Both plaintiffs witnessed the birth, including the during the delivery as a result of which Ashley suffered a severed brachial the plaintiffs’ second child, was born in January 1999. Complications arose The jury could have found the following relevant facts: Ash ley O’Donnell,

she later had another child. after the plaintiffs’ expert referred to Melissa O’Donnell’s cesarean section when plaintiffs’ case after the opening statement; and (6) failing to grant a mistrial liability insurance in its jury instructions; (5) failing to non - suit portions of the comparative fault on the part of Melissa O’Donnell; (4) referring to potential testimony; ( p. 3 3) failing to set aside the verdicts for failure of the jury to find distress damages; ( p. 2 2) allowing plaintiffs’ expert to provide unreliable causation erred by: (1) failing to set aside the plaintiffs’ verdicts for bystander emotional Bisson, and Dr. Patricia Chaudhuri, argue that the Trial Court (McHugh, J.) d/b/a Parkland Medical Center, Parkland Physician Servi ces, Inc., Dr. Monelle On appeal, the defendants, HCA Health Services of New Hampshire, Inc. 3

Because pain experienced upon the death, illness or injury of a loved one is an 147 N.H. 681, 68 p. 3 3 - 84 (2002); Thorpe v. State, 133 N.H. 299, 304 (1990). their distress regardless of physical impact. Palmer v. Nan King Restaurant, we have consistently required plaintiffs to demonstrate physical symptoms of To recover for emotional distress under a traditional negligence theory,

third prong of Corso. accompanied by objective physical symptoms. Id. at 659. At issue here is the defendant; (2) foreseeability; and ( p. 3 3) serious mental and emotional harm distress to bystanders must satisfy three prongs: (1) causal negligence of the 651, 656 (1979). Under Corso, a claim for negligent infliction of emotional and causation when confronted with this issue. Corso v. Merrill, 119 N.H. 647, Since 1979, we have re lied upon the traditional tort concepts of foreseeability emotional distress to bystanders has proven to be a vexing issue for courts. Establishing the boundaries of liability for negligent infliction of

related physical manifestations of emotional distress. We agree. evidence at trial, expert or otherwise, that the O’Donnells suffered delivery have been set aside. Among other things, they argue that there was no Melissa and Derek O’Donnell for their emotional distress as bystanders should On appeal, the def endants first argue that the damages awarded to

thousand dollars. This appeal followed. O’Donnell suffered extreme emotional distress and awarded him one hundred claimed damages including lost wages. The jury also found that Derek negligence and award ed her two hundred thousand dollars for all of her O’Donnell suffered extreme emotional distress as a result of the defendants’ dollars for damages suffered by Ashley. The jurors found that Melissa O’Donnell was not negligent to any degree. The jury awarded two million obtain the prior delivery records constituted negligence and foun d that Melissa In a special verdict form, the jury found that the defendant’s failure to

caused sleeping problems and heightened stress in their relationship. result of Ashley’s injuries. They testified that their emotional distress has the delivery as well as to the severe emotional shock they have endured as a injury. Derek and Melissa O’Donnell also testified as to the events surrounding were negligen t and that their negligence was the proximate cause of Ashley’s obstetrics, infertility and laparoscopic surgery, testified that the defendants is board - certified in obstetrics and gynecology and who specializes in high - risk During the jury trial, the plaintiffs’ expert, Joseph Finkelstein, M.D., who

into the shoulder and down the ar m. of her brachial plexus, a bundle of nerves running from the lower cervical spine neurological testing revealed Ashley suffered a near avulsion, or complete tear, required protracted reparative surgery for Melissa. Later pediatric records and performed a fourth degree episiotomy and delivered Ashley. The episiotomy p. 4 4

this case. the negligent infliction of emotional distress to by standers under the facts of Silva, 150 N.H. at 375. We decline the invitation to expand this exception to ken of average lay people what mental and emotional harm might result.” arose from direct physical inju ry and/or intentional torts where “it is within the improper wiretapping of conversations). These cases are distinguishable. They expert testimony to prove emotional distress from invasion of privacy caused by Fischer v. Hoop er, 1 p. 4 43 N.H. 585, 592 - 93 (1999) (plaintiff not required to offer testimony of emotional distress after alleged assault during a strip search); abuse); Silva, 150 N.H. at 374 - 75 (prisoner not required to offer expert expert testimony of emotional distress resulting from physical and mental Gronvaldt & Gronvaldt, 150 N.H. 551, 554 (2004) (wife not re quired to offer emotional damages without requiring expert testimony. See In the Matter of The plaintiffs point to three recent cases in which we allowed recovery for

issue was not preserved at trial. Further, the trial court specifically rejected the plaintiffs’ contention t hat the expert testimony establishing the physical manifestations of the distress. Melissa O’Donnell. The defendants’ motion clearly objected to the lack of time the defendants filed a motion to set asi de the verdicts for Derek and distress. The trial court reserved argument until after the verdict, at which moved for a directed verdict as to the claims of negligent infliction of emotional at trial. We disagree. At the c lose of the plaintiffs’ evidence, the defendants The plaintiffs maintain that the defendants failed to preserve this issue

otherwise. infliction of emotional distress. Accordingly, the trial court erred when it ruled held that expert tes timony is required to recover damages for negligent emotional distress claims.” Though the plaintiffs claim great suffering, we have ruled that “no expert is required in order for the plaintiffs to make their as ide the verdicts after trial. These motions were denied when the trial court defendants moved for a directed verdict on this issue and later moved to set regarding their physical manifestations of their distress or their cause. The At trial, the plaintiffs did not provide an expert witness to testify

(2003). of emotional distress.” Silva v. Warden, N.H. State Prison, 1 p. 5 50 N.H. 372, 37 p. 4 4 required to prove physical symptoms suffered from alleged negligent infliction to establish causation, we have repeatedly held that “expert testimony is emotional injury is sufficiently serious t o be afforded legal protection as well as experience with lasting effects. Palmer, 147 N.H. at 684. To ensure that the have held that the emotional harm must be a significant, painful mental Mem. Hosp., 1 24 N.H. 791, 796 (1984) (quotation omitted). Consequently, we when the plaintiff bears an unusual or aggravated burden.” Nutter v. Frisbie emotional cost borne by everyone living in society, “[t]he law intervenes only 5

advise them of the complications with her first delivery. We will uphold the Melissa O’Donnell. The defendants argue that Melissa O’Donnell failed to the verdict for the failure of the jury to find any comparative fault on the part of Next, the defendants argue that the trial court erred in f ailing to set aside

a sustainable exercise of discretion. decision to allow Dr. Finkelstein to testify as to the cause of Ashley’s injury was Bake r Valley Lumber, 148 N.H. at 613. Accordingly, we find the trial judge’s trial and went to the weight and credibility of Dr. Finkelstein’s testimony. Cf. methodology employed by Dr. Finkelstein was subject to cross - examination at course of the last twenty - five years. Furthermore, the reasoning or numerous obstetric seminars, and review of journal s and treatises over the Ashley’s injury was derived from his personal experience, attendance at Dr. Finklestein testified that his expert opinion regarding the cause of

that field. Id. field does not automatically disqualify a doctor from testifying as an expert in (1993). In Briley we held that the lack of specialization in a particular medical of a per se rule of exclusion or inclusion. Mankoski v. Briley, 137 N.H. 308, 313 qualifications must be deter mined on a case - by - case basis, not by application private practice in high - risk obstetrics since 1978. An individual witness’s obstetrics at the New York Hospital Cornell Medical Center, and maintained a laparoscopic surgery. In addition, he has been a clinical instructor in and gynecology and specializes in high - risk obstetrics, infertility and The record establishes that Dr. Finkelstein is board - certified in obstetrics

612 (2002). exercise of discretion. Baker Valley Lumber v. Ingersoll - Rand, 148 N.H. 609, determination of expert qualification unless we find it to be an un sustainable or education.” N.H. R. Ev. 702. We will not reverse a trial court’s expert may be qualified on the basis of “knowledge, skill, experience, training plexus during delivery.” New Hampshi re Rule of Evidence 702 states that an injuries, “he would not know how to quantify the forces exerted on the brachial defendants argue that because Dr. Finkelstein is not a specialist in nerve Finkelstein wa s not sufficiently reliable and should have been excluded. The Specifically, they argue that the reasoning or methodology employed by Dr. Finkelstein, M.D., to testify as to the cause of Ashley’s nerve injury. erred in allowing the plaintiffs’ expert, obstetrician - gynecologist Joseph We construe the defendants’ next argument to be th at the trial court

related to the emotional distress claim. remand for a new trial on the issue of damages due Melissa O’Donnell not Derek O’Donnell, and vacate the award of damages to Melissa O’Donnell. We emotional distress. Accordingly, we reverse the jury’s award o f damages to is not disturbed by our ruling barring her claim for negligent infliction of Melissa O’Donnell’s suit also included a claim for lost wages. That claim p. 6 6 “F irst the [defendants] must show that it was a substantial error such that it we apply a two - part test. See Francoeur v. Piper, 146 N.H. p. 5 525, 531 (2001). In determining whether an erroneous jury instruction requires reversal

applicable to the case in such a way that the jury is misled. Id. unless the charge, taken in its entirety, fa ils adequately to explain the law We review jury instructions in context and will not reverse the trial court them. Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 457 (2003). to inform the jury of the appropriate standards of law by which it is to resolve The purpose of jury instructions is to identify issues of material fact, and

trial and the legal instructions which I have just given to you. determine damages is based only upon the evidence presented at other sources from any award made in this case. Your duty to This is so because the plaintiffs may be required to repay such reflect benefits which may have been received from other sources. permit you to make any deduction from the plaintiffs’ damages to coverage or any other type of insurance b enefits. The law does not injuries claimed. This includes, for example, health insurance has received benefits from other sources in connection with the Likewise, you may not consider or speculate whether the plaintiff without regard to the defendants’ finan cial circumstances. responsibility is to determine damages in accordance with the law defendants are insured or have the ability to pay any awards. Your consider or speculate whether the defendant is - - or any of these In determining damages, ladies and gentlem en, you may not

jury the following instruction: potential liability insurance in its jury instructions. The trial court gave the The defendants next argue that the trial court erred by referring to

aside the verdict. conclude that the trial court properly denied the defendants’ motion to set have found no comparative fault on the part of Melissa O’Donnell. We during her first pregnancy. In light of this evidence, a reasonable jury could failed to obtain the records, which report ed the complications that took place authorizing the defendants to obtain her medical records. The defendants There was evidence that Melissa signed a medical release form

145 N.H. at 9 p. 6 6, 9 p. 7 7. weight of the evidence only if no reasonable jury could have reached it. Mullin, N.H. 186, 190 (1999) (quotations omitted). A verdict is conclusively against the result of mistake, partiality, or corruption.” Quinn Bros. v. Whitehouse, 144 jury verdict if it is conclusively against the weight of the evidence or if it is the of discretion. Mullin v. Joy, 145 N.H. 96, 96 - 97 (2000). “We will set aside a was made without evidence or the court committed an unsustainable exercise trial court’s decision on a motion to set aside the verdict unless the decision 7 done if the trial continues to verdict. Id. To show an unsustainable exercise of should b e granted only if the trial court determines that justice may not be Servs. of Sullivan County, 149 N.H. 264, 268 (2003). A motion for mistrial absent an unsustainable exercise of discretion. Murray v. Developmental We will not overturn a trial court’s decision on a motion for mistrial

deliveries. We disagree. prejudiced because the jury might improperly have compared the two she had her third child. The defendants argue that they were unduly mistrial after the plaintiffs’ expert referred to Melissa’s cesarean section when Finally, the defendants argue that the trial court should have granted a

motion for nonsuit. reject the defendants’ argument that the trial court erred in denying their Physician Services and that the jury understood those claims. Accordingly, we identified for the jury the pla intiffs’ claim against Bisson and Parkland the record, it is clear that the plaintiffs’ opening statement adequately and Parkland Physician Services’ negligence, and their burden of proof. From the pl aintiffs discussed the issue of negligence, various elements of Bisson’s familiarize the jury with the nature of the claims being presented. Specifically, agree with the trial judge’s finding that the opening statement did adequately their claims against defendants Bisson and Parkland Physician Services. We defendants’ argument that it failed to identify evidence necessary to sustain After reviewing the plaintiffs’ opening statement, we reject the

true and consider all the evidence most favorably to the plaintiff. Id. upon defendant’s motion for nonsuit, the Court must consider the evidence as submission. Cusson v. Beauregard, 143 N.H. 410, 411 (1999). In passing statement to determine whether upon that evidence there is a case for On appeal, we review the grant of a motion for nonsuit after an opening

We disagree. plaintiffs failed to describe evidence sufficient to meet their burden of proof. negligence. The defendants argue that as a result of that omission, the opening statement that the failure to obtain prior medical records constituted have been nonsuited because plaintiffs’ counsel did no t articulate in his Next, the defendants argue that portions of the plaintiffs’ case should

there was no error. reviewing the trial court’s jury instructions in their entirety, we conclude that determining damages, and referred to insurance onl y in that context. After The instructions explained what the jury could and could not consider when We fail to see how the jury could have been misled by the instructions.

show that the err or did not affect the outcome below.” Id. at 531 - 32. substantial error, the court] will reverse the jury verdict unless the [plaintiffs] could have misled the jury regarding the applicable law. . . . [If there is p. 8 8

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

the motion for mistrial. instruction. Accordingly, the trial court acted within its discretion by denying from Dr. Finkelstein’s unsolicited remark could have been cured by a jury defense counsel. We conclude that any prejudice that might ha ve resulted court offered to give a limiting instruction, but that offer was declined by that cannot be cured by jury instructions. Murray, 149 N.H. at 26 p. 8 8. The trial inadmissible or inappropriate; they must constitute an irreparable injustice motion was denied. To justify a mistrial, remarks must be more than merely Following Dr. Finkelstein’s remark, the defense requested a mistrial and that argue that brachial p lexus injuries occur in cesarean section deliveries as well. matter under advisement based upon the belief that the defendants might to Melissa’s subsequent delivery by cesarean section. The court had taken the The defendants had previously moved in limine to exclude all references

of the doctor’s test imony. This reference was not elicited by counsel’s question. Nor was it a major theme

pregnancy when she had her third child. physicians to do, as was in fact the choice in a subsequent be the ch oice by many physicians and recommendations by many have the right choice to do a cesarean section, which in fact would [one should have] explained everything to the patient so that they

Finkelstein gave a long answer that concluded, the standard of care called for after a prior incidence of shoulder dystocia. Dr. records of the birth of Melissa O’Donnell’s first child in 1991 and asked what During the trial, the plaintiffs’ expert, Dr. Finkelstein, was directed to the

N.H. 295, 296 (2001). untenable or unreasonable to the prejudice of his case. State v. Lambert, 147 discretion, the defendant must demonstrate that the court’s ruling was clearly