436 F.3d 879 (8th Cir. 2006), 05-1173, Smith v. Tenet Healthsystem SL, Inc.

Docket Nº:05-1173.
Citation:436 F.3d 879
Party Name:Dennis F. SMITH; Marya Smith, Appellants, v. TENET HEALTHSYSTEM SL, INC., doing business as St. Louis University Hospital; Tenet Healthcare Corporation; St. Louis University; Robert E. Burdge, M.D., Appellees.
Case Date:February 03, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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436 F.3d 879 (8th Cir. 2006)

Dennis F. SMITH; Marya Smith, Appellants,

v.

TENET HEALTHSYSTEM SL, INC., doing business as St. Louis University Hospital; Tenet Healthcare Corporation; St. Louis University; Robert E. Burdge, M.D., Appellees.

No. 05-1173.

United States Court of Appeals, Eighth Circuit.

February 3, 2006

Submitted: November 17, 2005

Appeal from the United States District Court, Eastern District of Missouri.

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John Dale Stobbs, argued, II, Alton, IL, for appellant.

G. Keith Phoenix, St. Louis, MO (Joseph F. Callahan, St. Louis, MO, on the brief), for appellees, St. Louis University and Robert Burdge, MD.

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Stephen G. Reuter, argued, St. Louis, MO (Robyn Greifzu Fox and Chaterine Vale Jochens, St. Louis, MO, on the brief), for appellees Tenet HealthSystem SL, Inc.

Before MURPHY, BOWMAN and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Dennis F. Smith ("Smith") brought this two-count medical malpractice action regarding the amputation of his right leg. The district court1 granted partial summary judgment and partial judgment as a matter of law in favor of the defendants on count one. A jury returned a verdict in favor of the defendants on count two. The district court then denied Smith's motion for a new trial and taxed Smith for a portion of the defendants' costs. Smith raises eight issues on appeal. For the reasons discussed below, we affirm the judgments and verdict but remand for a reduction of costs taxed to Smith.

I. BACKGROUND

Smith, a 50-year-old former coal miner, has a 30-year history of medical problems with his right knee. He has undergone more than a dozen surgeries on that knee. In 1986, Dr. Robert Burdge replaced Smith's right knee joint with a prosthesis. Dr. Burdge warned Smith about the possibility of having his leg amputated if his knee got worse and expressed concern about the effect of Smith's heavy work as a coal miner. In 1995, Smith received a total knee replacement by another physician and began receiving Social Security disability benefits. When he received this prosthesis, physicians informed him of substantial bone loss in his knee, precluding any future knee replacements. In 2000, Dr. Burdge performed a bone graft procedure to stabilize the total-knee prosthesis.

On January 5, 2001, Dr. Burdge performed a second bone graft procedure at St. Louis University Hospital because Smith's tibial plateau had collapsed. A few days after the surgery, Smith began to develop severe, adverse symptoms around the surgical site. On January 18, 2001, he went to a scheduled follow-up visit with Dr. Burdge. Because of Smith's symptoms, Dr. Burdge admitted Smith to St. Louis University Hospital and prescribed an antibiotic treatment in case Smith had an infection. Smith's condition worsened and Dr. Burdge removed the bone grafts because he suspected that Smith was experiencing a bone graft rejection. The symptoms of infection are the same or similar to the symptoms of a bone graft rejection. After numerous related hospital stays over the ensuing months and with all other options seeming futile, Smith consented to have his right leg amputated above the knee. That procedure was performed on September 20, 2001.

In 2002, Smith brought this two-count medical malpractice action based on diversity jurisdiction against Dr. Burdge, Tenet Healthsystem SL, Inc., doing business as St. Louis University Hospital ("Tenet"), and Dr. Burdge's employer, St. Louis University ("SLU") (collectively, "the defendants").2 Smith alleged that the defendants' negligent treatment caused the amputation of his right leg. Count one alleged that Tenet and SLU placed Smith in an "unclean hospital room" following his January 5, 2001, procedure and failed to follow internal policies and federal regulations regarding

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infection control (the "infection-control policies"). Count two alleged that the defendants were liable for Dr. Burdge's negligent failure to properly diagnose, treat and monitor Smith's knee.3 The defendants denied all liability, denied that Smith developed an infection in his right knee, and suggested that the cumulative trauma from Smith's history of knee problems was the sole cause of his amputation.

The district court granted summary judgment in favor of Tenet and SLU on the portion of count one concerning the allegation of an unclean hospital room and judgment as a matter of law in favor of Tenet and SLU on the remainder of count one. A jury returned a verdict in favor of the defendants on count two, and the district court denied Smith's motion for a new trial and taxed Smith for a portion of the defendants' costs. Smith raises eight issues on appeal and renews his request for a new trial.

II. DISCUSSION

A. Voir Dire

Smith argues that the district court abused its discretion in disallowing certain of his questions during voir dire because this limitation prevented an inquiry into potential juror biases regarding tort reform, medical malpractice and plaintiffs with preexisting medical conditions. Because Smith contemporaneously failed to object to the way in which voir dire was conducted and did not request permission to rephrase his questions, we review this issue for plain error to determine if the limitation was so prejudicial as to cause a miscarriage of justice. Ratliff v. Schiber Truck Co., Inc., 150 F.3d 949, 956 (8th Cir. 1998).

Given the questions asked of the potential jurors by the district court and Smith's attorney, we find no error. District courts have broad discretion to determine the scope of voir dire. Id. at 956. Voir dire is proper provided that there is an adequate inquiry to determine any juror bias or prejudice. See Nanninga v. Three Rivers Elec. Coop., 236 F.3d 902, 906-07 (8th Cir. 2000). In this case, the district court questioned the prospective jurors about experiences involving medical malpractice. The court also gave each party twenty minutes to supplement the court's examination. See Fed.R.Civ.P. 47(a) (explaining that when the court examines prospective jurors, "the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper") (emphasis added).

Prior to voir dire, the parties submitted proposed questions in writing. The district court disallowed certain of Smith's questions because they called for lengthy responses from individual jurors.4 However, during Smith's supplementary examination, Smith's counsel was permitted to ask...

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