PER CURIAM.
Tina Killinger, the special administrator of the estate of Jean M. Renschler, deceased, brought a medical malpractice action against Dr. William R. Marsh and his employer, Grand Island Radiology Associates, P.C. A jury returned a verdict in favor of Killinger, awarding damages in the amount of $1,278.75. Killinger filed a motion for new trial, arguing that the damages awarded were inadequate. The district court for Hall County overruled the motion for new trial. Killinger appeals. Based on the reasons that follow, we affirm.
On December 2, 2006, Renschler was admitted as a patient to St. Francis Medical Center in Grand Island, Nebraska. She had been suffering from bilateral methicillin-resistant staph aureus pneumonia, a type of pneumonia that causes more severe lung destruction than typical pneumonia and is difficult to treat, and she was not recovering. On the day Renschler was admitted, her blood pressure had dropped, as well as her oxygen saturation level, and she was running a fever. Prior to her admission on December 2, she had been at St. Francis Medical Center's skilled-care facility since October 29 due to the pneumonia and because she was too weak to be at home.
During Renschler's hospitalization, she underwent a CT scan of her chest, which scan revealed a lesion in her right lung. Renschler's primary care physician referred her to Marsh, a radiologist, to biopsy the lesion to determine if it was cancerous. On December 15, 2006, Marsh performed a CT-guided needle biopsy on the lesion in Renschler's lung. During the procedure, blood started filling Renschler's lung, making her unable to breath, and she began coughing up blood. The bleeding could not be controlled, and Renschler died. At the time of her death, Renschler was 57 years old and was survived by her daughters, Killinger and Tiffany Renschler (Tiffany).
On March 14, 2008, Killinger, in her capacity as the special administrator of Renschler's estate, brought a medical malpractice action against Marsh and Grand Island Radiology Associates to recover damages for herself and Renschler's estate. Killinger alleged in her complaint that Marsh was negligent in his care and treatment of Renschler while she was a patient at St. Francis Medical Center on December 15, 2006, and that such negligence was a direct and proximate cause of Renschler's death on December 15. Killinger alleged that Renschler's next of kin "have been deprived of the comfort of [Renschler's] society and companionship, her services and earnings, as well as such other pleasures and rights, having a pecuniary value, which attend immediate family relationships." Killinger further alleged that as a result of Marsh's negligence, Renschler's estate incurred funeral and burial expenses, as well as medical expenses.
A jury trial was held on January 25 through 29, 2010. The evidence showed that when Renschler was admitted to the medical center on December 2, 2006, she had numerous medical problems in addition to the pneumonia. Renschler was diagnosed as a child with juvenile rheumatoid arthritis, which progressed. She had severe chronic obstructive pulmonary disease (COPD), which required her to be on a continuous high dose of supplemental oxygen. Renschler had been on continuous supplemental oxygen since 2003. Renschler had smoked 1½ packs of cigarettes per day for 40 years. She was anemic and had pulmonary artery hypertension, bullous emphysema (areas of severe lung destruction), Barrett's esophagus, and Guillain-Barré syndrome (a neurologic condition that causes body weakness, in Renschler's case, numbness or tingling in her hands). She had chronic pain and anxiety requiring medication, and had suffered from recurrent pneumonia. She also had aortic regurgitation (leaking of the aortic heart valve), which was discovered in January 2006 when she had a heart attack. Heart valve replacement surgery was recommended, but Renschler was not healthy enough to undergo heart surgery. Renschler was also a very thin woman, weighing only 88 pounds. Renschler had been hospitalized or in skilled care for much of the year preceding her death.
Renschler had been disabled and unable to work since 1986. Prior to being disabled, Renschler had primarily been a homemaker, but had held a few jobs. Renschler had an eighth grade education.
Dr. John L. Allen, a radiologist called as a witness by Killinger, testified that someone with Renschler's conditions is "barely able to function everyday" and that before the biopsy was performed, if any of her conditions got worse, she could have died. He testified that Renschler was "teetering on the edge of pulmonary failure" at the time of her death. Allen testified that even if the lesion on her lung was cancerous, the cancer would not have caused her death; she was going to die from her COPD and her lung problems.
Dr. Dennis P. Clifford, a pulmonologist called as a witness by Killinger, testified that prior to Renschler's death on December 15, 2006, Renschler had a very poor prognosis based upon the severity of her underlying lung disease and heart condition. He testified that her life expectancy, whether she had cancer or not, was approximately 2 years, based on her lung disease and heart condition. In Clifford's opinion, if Renschler did have cancer, it would be a race to see whether the cancer or her other medical issues would cause her death and more than likely it would not be the cancer that would lead to her death.
Renschler's primary care physician testified that had Renschler survived the lung biopsy, Renschler would have lived more than 1 year and possibly up to 5 years. Renschler's primary care physician also testified that had Renschler survived, she would have gone back to the skilled-care facility she had previously been in or a similar long-term-care facility.
Dr. David E. Cantral, a pulmonologist called by Marsh and Grand Island Radiology Associates, testified that as of July 7, 2006 (6 months before Renschler died), Renschler's life expectancy was in the range of 2 to 2% years. Cantral further testified that such average life expectancy was based exclusively on Renschler's lung disease (COPD and pulmonary hypertension) and did not take her other medical issues into account.
Killinger testified that from 2001 until Renschler died, she would visit Renschler on a daily basis. During the visits, Killinger always checked with Renschler whether she needed anything done for her. Killinger testified that she went shopping for her mother and that someone from social services would take Renschler shopping on occasion. Killinger also helped Renschler get to doctor appointments. Renschler needed assistance when she went out of the house because she could not walk more than one or two blocks at a time due to her lung problems and because of the weakness and numbness in her hands. She was also unable to drive after she went on supplemental oxygen.
Killinger testified that Renschler was her best friend. Killinger testified that she leaned on Renschler for support and that Killinger and her children spent a lot of time with Renschler on the weekends.
Killinger testified that Renschler did not provide any financial support to either her or Tiffany. She further testified that she was not making any claim for financial support or pecuniary damages for services that Renschler provided to her. Tiffany did not testify, and there was no evidence at all in regard to Tiffany's relationship with Renschler.
An exhibit was entered into evidence showing that the funeral and burial expenses for Renschler totaled $1,278.75.
The jury returned a verdict in favor of Killinger, finding that Marsh was negligent in his treatment of Renschler, specifically in performing the CT-guided biopsy when the procedure was not medically warranted and counterindicated given Renschler's medical condition. The jury further found that Marsh's negligence was a proximate cause of Renschler's death. The jury awarded damages in the amount of $1,278.75. The trial court entered judgment on the verdict.
On February 4, 2010, Killinger filed a motion for new trial, alleging that the damages awarded were inadequate as a matter of law. The trial court overruled the motion.
Killinger assigns that the trial court erred in failing to grant her a new trial, because the damages awarded by the jury in the amount of $1,278.75 were inadequate as a matter of law.
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. In re Petition of Omaha Pub. Power Dist., 268 Neb. 43, 680 N.W.2d 128 (2004).
A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system. Id.
Killinger argues that the damages awarded by the jury in the amount of $1,278.75 were inadequate as a matter of law because the jury awarded damages for funeral expenses only and awarded no damages for Killinger's loss of services, comfort, and companionship. Killinger contends that because the damages were inadequate, the trial court erred in failing to grant a new trial on the issue of damages alone.
The jury was instructed that if it returned a verdict in favor of Killinger, which it did, then it had to determine the amount of money and the monetary value of the services, comfort, and companionship that Renschler would have contributed to her next of kin had she lived. The jury was instructed that in making this determination, it should consider the following: (1) reasonable funeral costs; (2) any services, comfort, or companionship that Renschler gave to her next of kin before her death and the prospect that there would have been changes in the future; (3) the physical and mental health of Renschler had she not died on December 15, 2006; (4) Renschler's life expectancy immediately before her death; and (5) the life expectancy of each next of kin. The jury was also told that it could not award the next of kin any damages for grief or mental suffering. The parties had stipulated that funeral expenses could be included in the wrongful death cause of action.
Killinger contends that the jury awarded damages for only funeral and burial expenses, because the amount of damages is the same as the amount of the funeral and burial expenses. However, as previously stated, funeral expenses, as agreed by the parties, was included as one consideration in determining the monetary value of services, comfort, and companionship. Therefore, the fact that the damages amount is the same as the funeral expenses does not allow us to conclude that the jury awarded only funeral expenses when it was one of the five factors the jury was instructed to consider. Further, the verdict form simply stated that the jury was awarding the sum of $1,278.75. The verdict did not itemize or break down the damages into categories. Because the verdict form did not itemize the damages awarded, we can only speculate as to what the jury intended to compensate for and cannot assume that the jury awarded damages for only funeral costs. Therefore, based on the jury instructions and the verdict form, we do not know whether the jury awarded damages for only funeral expenses.
That having been determined, we conclude that based on the evidence presented, the verdict is supported by the evidence and is not inadequate. On appeal, the fact finder's determination of damages is given great deference. In re Petition of Omaha Pub. Power Dist., 268 Neb. 43, 680 N.W.2d 128 (2004). The amount of damages is a matter solely for the fact finder, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of damages proved. Id. However, an award of damages may be set aside as excessive or inadequate when, and not unless, it is so excessive or inadequate as to be the result of passion, prejudice, mistake, or some other means not apparent in the record. Id.
The jury was to determine the monetary value of the services, comfort, society, and companionship Renschler would have provided to her next of kin had she lived. In doing so, the jury was instructed to take five factors into consideration, as earlier set forth.
As previously discussed, the jury was presented with evidence of the funeral costs. There was no evidence presented in regard to the life expectancy of Killinger or Tiffany.
In regard to the remaining considerations, Renschler's physical health was very poor before she died. She had severe COPD, pulmonary artery hypertension, bullous emphysema, aortic regurgitation, and numerous other conditions. Allen testified that she was "teetering on the edge of pulmonary failure" at the time of her death. Clifford and Cantral testified that Renschler's life expectancy before the lung biopsy was performed was approximately 2 years. Renschler's primary care physician testified that if Renschler had survived the lung biopsy, she would have lived more than 1 year and possibly up to 5 years.
During the relevant period, Renschler was a mother who did not contribute to the financial support of either of her daughters. She had been disabled since 1986 and was primarily a homemaker before that time. Killinger testified that Renschler did not provide any financial support to either her or Tiffany. She further testified that she was not making any claim for financial support or pecuniary damages for services that Renschler provided to her.
In regard to comfort and companionship, the evidence shows that Killinger and Renschler had a good relationship. However, during the several years before Renschler's death, Killinger was the one providing comfort and companionship to Renschler, rather than Renschler's providing comfort and companionship to Killinger. From 2001 until Renschler died, Killinger visited her mother on a daily basis. During the visits, Killinger always checked whether Renschler needed anything done for her. Killinger helped Renschler with her shopping and helped her get to doctor appointments. Renschler was dependent upon Killinger for help and support. The evidence showed that the relationship demanded time and services of Killinger, but that the relationship did not bestow any benefit having a significant monetary value to Killinger.
Further, had Renschler survived the lung biopsy, there was no evidence of any comfort or companionship of a pecuniary nature reasonably expected to be provided by Renschler to Killinger in the future. Killinger would have continued to provide comfort and care for Renschler as Renschler's health continued to deteriorate.
This case is distinguishable from Reiser v. Coburn, 255 Neb. 655, 587 N.W.2d 336 (1998), a wrongful death case which the Nebraska Supreme Court reversed on the basis of inadequate damages. In Reiser, a father, as personal representative of his son's estate, brought a wrongful death action against a motorist, alleging that the motorist's negligence caused the accident and the death of the father's 18-year-old son. On a cause of action for loss of consortium, services, society, companionship, and counsel, the jury awarded a verdict of $0. The father filed a motion for new trial on various grounds, including an inadequate verdict, which the trial court overruled. On appeal, the Supreme Court reversed, stating that there was uncontroverted evidence of a close and loving relationship between the son and his parents. The evidence in Reiser showed that the son was engaged in farming with his father, who described the son as his "`right-hand man.'" Id. at 663, 587 N.W.2d at 342. The father testified that his son was with him all the time and helped him with everything that needed to be done on the farm. He testified that they had a good relationship, that the family would often gather at the son's home for Sunday dinner, and that the son regularly went to church and engaged in recreational activities with his parents and younger siblings. The Supreme Court concluded that a verdict of $0 for loss of the deceased's society, comfort, and companionship did not bear any reasonable relationship to the evidence and that the verdict was inadequate as a matter of law.
The present case, as opposed to Reiser, involves an adult child losing her severely ill parent. Also in Reiser, there was evidence that the father and son worked side by side on a daily basis and there was also evidence of specific activities the son did with his father and the rest of his family. In the present case, although Killinger testified that Renschler was her best friend and the evidence demonstrates that they had a good relationship, there is little evidence of how this relationship was beneficial to Killinger. The evidence focused on the help and support that Killinger provided to Renschler rather than on any comfort and companionship that Renschler provided to Killinger. Further, Killinger testified that she was not making any claim for financial support or pecuniary damages for services that Renschler provided to her.
Damages for loss of society must be determined upon a consideration of the facts of each case. Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001). There is no exact fiscal formula for determination of damages recoverable for loss of society, comfort, and companionship; a loss which is not subject to some strict accounting method based on monetary contributions, past or prospective. Id. Because it is impossible to generalize the extent to which persons enjoy each other's companionship and society, the value of such highly personal relationships must be decided on a case-by-case basis. Id.
In the present case, the jury's award of damages is supported by the evidence and bears a reasonable relationship to the elements of damages proved. We are unable to say that the damages awarded by the jury for Killinger's loss of services, comfort, and companionship were inadequate. Thus, the trial court's overruling of Killinger's motion for new trial was not an abuse of discretion.
We conclude that the damages awarded by the jury were not inadequate. Accordingly, the trial court did not abuse its discretion in overruling Killinger's motion for new trial.
AFFIRMED.
