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Walters v. Hitchcock

Citation. 697 P.2d 847 (1985)
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Brief Fact Summary.

Plaintiff sued Defendant for medical malpractice because Defendant mistakenly removed a piece of Plaintiff’s esophagus, which was not repairable, while he was removing a lump from Plaintiff’s throat. The jury awarded Plaintiff $2 million in damages. Defendant appealed.

Synopsis of Rule of Law.

An appellate court will uphold a jury verdict in a medical malpractice action so long as the award amount does not shock the conscience.


In 1979, a lump was discovered on the neck of Lillian Walters (Plaintiff) by her family physician. At the time, Plaintiff was 32-years-old, not employed, and married with four minor children. Thereafter, Plaintiff was seen by surgeon, Dr. C. Thomas Hitchcock (Defendant), who recommended a surgical removal of the diseased areas of Plaintiff’s thyroid gland. Defendant informed Plaintiff that the procedure was low risk with an anticipated three-day hospital stay afterwards. Following the procedure, Plaintiff’s condition rapidly deteriorated: her head swelled, she lost her vision, and she suffered extreme respiratory distress. Plaintiff was taken to the intensive care unit where a breathing tube was inserted. Defendant was notified by the hospital’s pathology department that a piece of Plaintiff’s esophagus was connected to the thyroid specimen he had sent to the lab during her surgery. Subsequently, Defendant reopened Plaintiff’s wound and observed a significant hole in her esophagus that was not repairable. Defendant permanently closed Plaintiff’s esophagus. Plaintiff brought a medical malpractice action against Defendant and sought $4 million in damages. A jury awarded Plaintiff $2 million in damages, and Defendant appealed.


Whether an appellate court will uphold a jury verdict in a medical malpractice action so long as the award amount does not shock the conscience.


Yes. The trial court’s ruling is affirmed.


(Schroeder, C.J.): The magnitude of the verdict is the result of trial error and possible misconduct by the jurors. The $2 million jury verdict included $1,940,000 in general damages for pain and suffering. That would provide Plaintiff with about $48,000 annually for the remainder of her life. Assuming that one-half of the damage award is paid on expenses and attorneys fees, the remaining $1 million could be invested at 10 percent and provide an annual income of $100,000 without invading the principal sum. In Kirk v. Beachner Construction Co., Inc., 522 P.2d 176 (Kan. 1974), the court ruled that a jury’s verdict must be “reasonable” and not overly compensate a plaintiff. The majority here erred in affirming the excessive jury verdict rendered.


After Plaintiff’s esophagus was permanently closed by Defendant, she was only able to obtain nutrition via a tube inserted directly into her stomach. While Plaintiff regained her vision after her second surgery, she was required to undergo a number of surgical procedures and hospitalizations thereafter due to the negligence of Defendant. Defendant first argues that Walter’s counsel made inappropriate comments during his closing argument, stating “[w]ho would sell their esophagus for $4 million? I would not sell mine.” Defendant argues that the statement constitutes a prohibited “golden rule” argument. The term “golden rule” relates to improper arguments made by counsel that jurors should place themselves in the position of the plaintiff. Plaintiff’s counsel argues that the remarks were not asking that the jurors place themselves in Plaintiff’s position, but were merely hypothetical in nature. To constitute reversible error, there must be some likelihood that the improper remarks changed the result of the trial. Here, the remarks were both proper and improper, but the improper remarks are harmless in nature. First, counsel’s statement beginning with “who would sell…” is a fair argument relative to claimed damages and is not a “golden rule” argument. However, counsel’s comment that he would not sell his esophagus is his opinion, is testimonial in nature, and was improper but does not rise to reversible error. Next, Defendant argues that the jury’s award of $4 million is excessive. Defendant states that Plaintiff did not seek damages for lost wages or diminished future earning capacity and that her medical bills only totaled about $59,000 with no significant medical intervention expected in the future. Although Plaintiff is not expecting to undergo future surgical procedures, that does not mean that the damage done to Plaintiff can be undone. When Plaintiff now swallows food, it does not automatically go into her stomach. Instead, it piles up in bulges in her throat and upper chest. Plaintiff must manually massage the bulges downward to force the food into her stomach. The process is physically painful and will continue for the rest of her life. At trial, her life expectancy was 41.9 years. Plaintiff’s condition is embarrassing, distasteful to those around her, and is a major obstacle to leading a normal life. The size of the $2 million jury verdict does not shock the conscience and is thus appropriate.

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