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Prager v. Campbell County Memorial Hosp.

United States Court of Appeals, Tenth Circuit

July 2, 2013

Louis C. PRAGER, a Nevada resident, Plaintiff-Appellee,
v.
CAMPBELL COUNTY MEMORIAL HOSPITAL, a Wyoming Governmental Entity; Brian M. Cullison, M.D., a Wyoming resident, Defendants-Appellants/Cross-Appellees. and Rebecca Prager, a Nevada resident, Plaintiff-Appellee/Cross-Appellant,

Ordered Published Aug. 12, 2013.

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Robert Todd Ingram, Ingram Olheiser, P.C., (Scott J. Olheiser, Ingram Olheiser, P.C., Casper, WY, and T. Thomas Metier, Metier Law Firm, Fort Collins, CO, with him on the briefs), appearing for Appellees.

Billie L.M. Addleman, (Richard G. Schneebeck and Melissa R. Skorcz, with him on the briefs), Hirst Applegate, LLP, Cheyenne, WY, appearing for Appellants.

Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.

ORDER AND JUDGMENT [*]

HOLLOWAY, Circuit Judge.

This appeal arises from a diversity action based on a claim of medical negligence. The injured plaintiff, Louis Prager, alleged that Campbell County Memorial Hospital and its employee, Dr. Brian Cullison (together, the Hospital Defendants), negligently failed to diagnose

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Mr. Prager's broken neck following an automobile accident, resulting in serious nerve damage to his left arm. After a lengthy trial, the jury in the case awarded damages to Mr. Prager. Mr. Prager's wife, Becky, was awarded damages for loss of consortium. The jury awarded a verdict for seven million dollars to Mr. Prager and a verdict for two million dollars to Ms. Prager. Displeased with the jury's decision, the Hospital Defendants asked the district court to order a new trial or else reduce the Pragers' award of damages. The district court declined to disturb the verdict in favor of Mr. Prager but ordered Ms. Prager's damages reduced by 75%, to $500,000.

The Hospital Defendants now appeal the judgment in favor of the Pragers. Ms. Prager, in turn, cross-appeals the district court's remittitur of her loss-of-consortium award. Exercising jurisdiction under 28 U.S.C. ยง 1291, we AFFIRM the judgment in favor of Mr. Prager and REVERSE the district court's remittitur of Ms. Prager's damages, with instructions to reinstate the full amount of the jury's award.

I. BACKGROUND

A. The Facts

On an icy Wyoming morning in 2008, the truck that Louis Prager was driving skidded, rolled five times, and eventually came to rest upside down in the snow. It was a bad wreck.[1] When emergency personnel arrived at the scene of the accident, they found Mr. Prager bloodied but conscious. He had a serious cut under his left eye. Mr. Prager told the paramedics that he was also experiencing pain " on the left side of his neck and shoulder." Aplee. Supp.App. at 1644. Because a person in a rollover car crash is at high risk of suffering spinal injury, the emergency responders secured Mr. Prager to a backboard and placed a cervical collar— essentially, a neck brace— around his neck. This was done to support his head and neck and prevent movement until the full extent of his injuries could be ascertained at a hospital.

An ambulance took Mr. Prager to the emergency room at Campbell County Memorial Hospital, located nearby in the town of Gillette. He was met there by the attending emergency-room technician, Lisa Harry, who recorded that Mr. Prager was complaining of neck pain upon his arrival at 8:55 A.M. Sher Watt, a Registered Nurse, then came in to assess Mr. Prager's injuries. Nurse Watt, too, indicated on her nursing chart that Mr. Prager was complaining of neck pain when he first came to the emergency room.

Much of what happened after this point is hotly disputed by the parties. Two distinct and irreconcilable narratives emerged at trial. As the Hospital Defendants tell it, Dr. Cullison, who was the attending emergency-room physician that day, examined Mr. Prager shortly after his arrival at the hospital. In this version of events, Dr. Cullison first loosened Mr. Prager's cervical collar and then made a thorough physical examination of his neck and cervical spine by following a standard procedure known as the NEXUS protocol. [2] Having

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gone through all of the NEXUS criteria, Dr. Cullison was then able to " clear" Mr. Prager's cervical spine. In layperson's terms, Dr. Cullison's examination had ruled out the existence of a neck injury for Mr. Prager. This also meant, according to Dr. Cullison, that an x-ray of Mr. Prager's cervical spine would not be required: Mr. Prager's neck appeared fine.

Even so, Mr. Prager had sustained a facial laceration and was also complaining of pain around his left shoulder and tenderness in his back. Dr. Cullison testified that, for these reasons, he ordered CT films of Mr. Prager's head and facial bones, along with an x-ray and CT film of Mr. Prager's thoracic spine.[3] Dr. Cullison ordered the first two films to rule out the existence of a skull fracture or the presence of foreign bodies, such as dirt or glass, that might have become imbedded in Mr. Prager's facial wounds. The second two films were ordered to see what injury, if any, Mr. Prager had suffered to his shoulder or midsection. The x-rays and CT films showed no broken bones. Satisfied that Mr. Prager had suffered no serious injuries, Dr. Cullison stitched up the cut on Mr. Prager's face and discharged him from Campbell County Memorial Hospital early that afternoon.

Mr. Prager tells things differently. He testified at trial that he never saw Dr. Cullison until around 1:30 that afternoon, when Dr. Cullison came to stitch up the facial laceration. It was not until this time, Mr. Prager says, that Dr. Cullison removed the cervical collar from around his neck. Mr. Prager testified that he had been wearing the cervical collar all day and that the collar was still on him while the x-rays and CT films were being made earlier that day. According to Mr. Prager, Dr. Cullison then told him that " we checked all the x-rays and you have no broken bones." Id. at 1019. Mr. Prager stated that he continued to complain of neck pain during this time, but Dr. Cullison " reassured me that ... everything was okay." Id. at 1021. Mr. Prager told the jury that Dr. Cullison never physically examined his neck at any time before discharging him from the hospital.

Mr. Prager went to a friend's house to recuperate. Mr. Prager is a resident of Las Vegas, Nevada, but he had been living in Gillette for the previous five months, working on drilling rigs for an energy company. Mr. Prager never planned on permanently staying in Wyoming; he had temporarily moved there to learn " the drilling side of the oil business," id. at 991, with the ultimate aim of becoming a drilling consultant— something he thought would make a potentially lucrative enterprise. In the meantime, Ms. Prager had remained at their home in Las Vegas, where she teaches middle school and helps in raising their young granddaughter. To be clear, the Pragers emphasize that they were not living separately because of marital strife: Mr. Prager simply had a job to

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do, and that job had taken him to Wyoming for the time being.

Mr. Prager had started settling in at his friend's house when something went very wrong. He wrecked the truck on a Tuesday; after being discharged from the hospital, he spent Tuesday afternoon and all of Wednesday in bed. When he finally got up to use the bathroom early in the morning on Thursday, a blinding pain overtook him. He says that " it was like a bolt of lightning went off in my head." Id. at 1033. He felt a searing pain in his neck, and his left arm went numb. When the pain and numbness were no longer bearable, Mr. Prager returned to the emergency room at Campbell County Memorial Hospital. For the first time, x-rays were taken of his cervical spine. The x-rays showed that Mr. Prager's neck was, in fact, broken. See id. at 1040. Mr. Prager had a fracture around the fourth and fifth vertebrae of his cervical spine. He immediately underwent emergency surgery. Some five weeks after his accident, Mr. Prager left Wyoming and returned home to his wife in Las Vegas.

Life has not been easy for the Pragers since the accident. Mr. Prager's neck and left shoulder are in constant pain. The pain is often severe. His left arm— formerly his dominant arm— sustained severe nerve damage and is essentially paralyzed. There is, the evidence showed, very little he can do with that arm anymore. Mr. Prager also has bad headaches and finds it difficult to sleep. He has not worked since the accident and has not adjusted well to his new reality of chronic pain and reduced physical ability. He is listless and depressed, and his involuntary sedentariness is often punctuated by bouts of anger born of frustration.

His marriage has suffered, too. Ms. Prager told the jury that her husband came home from Wyoming a changed man. He is oftentimes agitated and isolated, angry and withdrawn. She testified that their life today has become in large part defined by Mr. Prager's constant state of pain, and their physical and emotional intimacy has withered. Ms. Prager must now shoulder the main economic responsibilities of the household while also caring for her husband. She has begun taking medication for depression. It appears likely that Mr. Prager's condition is permanent.

B. The Litigation

1. The Allegations and Testimony Concerning Negligence in Diagnosis

In 2010, the Pragers brought this diversity suit against Dr. Cullison and Campbell County Memorial Hospital in federal district court in Wyoming. Mr. Prager alleged negligence, and Ms. Prager asserted a claim for loss of consortium. Mr. Prager claimed the Hospital Defendants negligently failed to properly diagnose his broken neck once he was brought to the emergency room after the car crash. Mr. Prager said that soon after he started moving around following his initial discharge from the hospital by Dr. Cullison, the damaged vertebrae shifted and impinged on a nearby nerve root, thereby causing significant nerve damage to his left arm and shoulder. He alleged that— had the fracture been discovered on his first visit to the emergency room— he could have been immediately stabilized and treated, and the subsequent nerve damage would have been avoided.

At trial, the Pragers relied on the expert medical testimony of Dr. M. Scott Linscott, Jr., M.D., to establish the Hospital Defendants' negligence. Dr. Linscott is trained as an emergency-room physician. The Hospital Defendants did not object to the admission of Dr. Linscott as an expert in emergency medicine. Dr. Linscott testified

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at trial that the Hospital Defendants failed to meet the applicable standard of care in evaluating and treating Mr. Prager's injuries. He told the jury that, given the nature of Mr. Prager's accident and his documented complaint of neck pain in the emergency room, the Hospital Defendants violated the standard of care by not ordering radiological imaging of Mr. Prager's cervical spine. See id. at 108-09. Dr. Linscott further testified that, in these circumstances, the NEXUS protocol was not an adequate mechanism for identifying a possible cervical-spine fracture. See id. at 109.

2. The Jury Verdict

The jury agreed with the Pragers and returned a verdict finding the Hospital Defendants negligent. The jury awarded seven million dollars in compensatory damages to Mr. Prager and two million dollars to Ms. Prager for loss of consortium. The Hospital Defendants filed a post-trial motion asking the district court for a remittitur of the jury award or, in the alternative, a new trial. The district court did not reduce the amount of Mr. Prager's award. But the court found Ms. Prager's award excessive and supported only by " meager" evidence. Aplt.App. at 1402. The court thus pared her award for loss of consortium to $500,000. The Hospital Defendants now appeal the judgment in favor of the ...


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