Beckman v. Mayo Foundation, 85-5369

• Decision Date: 28 October 1986
• Docket Number: No. 85-5369,85-5369
• Parties: 21 Fed. R. Evid. Serv. 1262 Paul BECKMAN, guardian of Phyllis Beckman, an incompetent, Appellant, v. MAYO FOUNDATION, a non-profit corporation, Robert C. Hermann, M.D., Dennis G. Gruwell, M.D., and Earl T. Carter, M.D., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 435

804 F.2d 435

21 Fed. R. Evid. Serv. 1262

Paul BECKMAN, guardian of Phyllis Beckman, an incompetent, Appellant, v. MAYO FOUNDATION, a non-profit corporation, Robert C Hermann, M.D., Dennis G. Gruwell, M.D., and Earl T. Carter, M.D., Appellees.

No. 85-5369.

United States Court of Appeals Eighth Circuit.

Submitted June 9, 1986.

Decided Oct. 28, 1986.

Lester F. Murphy, East Chicago, Ind., for appellant.

James H. O'Hagan, Minneapolis, Minn., for appellees.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and REGAN ^*, Senior District Judge.

REGAN, Senior District Judge.

After a trial to a jury, plaintiff Paul Beckman, as guardian of Phyllis Beckman, appeals from the judgment of the jury that the plaintiff did not prove by a preponderance of the evidence that the defendants were negligent. We affirm the judgment in the district court.

Phyllis Beckman attended the Mayo Clinic on December 30, 1975, complaining of headaches of a varied severity which had been bothering her during the previous month. Mrs. Beckman expressed her concern that she might have a brain tumor. She was examined on January 6, 1976 by Dr. Hermann, a neurologist at the Mayo clinic. Dr. Hermann conducted a standard neurological examination, during which he reviewed Mrs. Beckman's medical history with her, observed her movement and speech, and evaluated her vision, ocular and facial movement, muscle strength, reflexes, and mental status. Additionally, Mrs. Beckman had been given a skull x-ray, an electroencephalogram (EEG) which measures the electrical activity within the brain and an echencephalogram which is an ultrasound test designed to detect abnormalities within the brain. The results of these tests were normal.

Dr. Hermann informed Mrs. Beckman that she was in all likelihood suffering from tension headaches, and that the normal test results showed that it was extremely unlikely that she had a brain tumor. However, he informed Mrs. Beckman that his diagnosis could be more certain if she were to undergo a CAT scan, a computerized x-ray device which prints out a picture display of the brain and surrounding tissue. He explained to her that there were slight risks inherent in the administration of a CAT scan: the risk of an allergic reaction to the dye used during the test and the risk caused by the radiation involved. Despite Dr. Hermann's advice that "the CAT scan would be the best way to go", Mrs. Beckman was concerned about the risk of radiation and elected not to have the CAT scan. Dr. Hermann prescribed medication for Mrs. Beckman and advised her to discontinue the medication that she had previously been taking. Dr. Hermann's diagnosis and offer of a CAT scan were documented in the Mayo Clinic records.

Mrs. Beckman returned to the Mayo Clinic in 1978 seeking treatment for unrelated medical problems. She said during that visit that she was no longer bothered by headaches.

Mrs. Beckman returned to the Mayo Clinic in March of 1981 complaining of severe headaches which she thought were caused by sinus trouble. She would also occasionally see sawtooth black lines in the left area of vision in both eyes and have tremors in her right hand. After an examination, no evidence of sinus disease was found.

Mrs. Beckman was further examined at the Mayo Clinic on June 16, 1981, by Dr. Gruwell, a resident in internal medicine. He reviewed her medical history and current problems. He then performed a physical examination on her, including a neurologic examination. He found nothing wrong with her neurologically. Dr. Gruwell told Mrs. Beckman that he thought her headaches were due to tension but offered a CAT scan to her for further assurance. Based on that information, she did not undergo a CAT scan.

Mrs. Beckman was sent to the Neurology Department of the Mayo Clinic on June 18, 1981, for further evaluation. She was examined by Dr. Hermann who had examined her in 1976. She told Dr. Hermann that her headaches had resumed in September of 1980 and that they were caused by tension. She also told him about her vision problems and the hand tremors. He reviewed her medical history and conducted a neurologic examination. He found no abnormal conditions. Mrs. Beckman was also given an EEG and a skull x-ray. Although the results of the EEG were slightly different from the results of her 1976 EEG, Dr. Hermann explained that the changes were clinically insignificant. The results of the skull x-ray were also normal.

Dr. Hermann discussed the results of his examination and the diagnostic procedures with Mrs. Beckman. He again explained that the results showed that it was very unlikely that she had a brain tumor. He also told her that the improvement in her headaches between 1976 and 1981 was inconsistent with brain-tumor headaches. However, he again explained that a CAT scan was the best method to rule out a brain tumor. He also again explained the risks inherent in the CAT scan. Mrs. Beckman declined the CAT scan due to her concern about the risk of the radiation.

After a consultation with Dr. Carter, Dr. Gruwell wrote a letter to Mrs. Beckman summarizing her June 1981 examinations at the Mayo Clinic. Dr. Gruwell told Mrs. Beckman that Dr. Hermann thought that her headaches were not of a dangerous nature. Dr. Gruwell also stated that he thought her headaches were due to depression and suggested that she seek professional counseling and return to the Mayo Clinic in one year. The offers of a CAT scan were not recorded in the Mayo Clinic records.

On March 15, 1982, Mrs. Beckman's family could not awaken her. She was taken to St. Margaret Hospital in Hammond, Indiana in a semi-comatose state. She was given a CAT scan which revealed a large meningioma, a tumor of the meninges which is the membrane surrounding the brain. Although the meningioma was surgically removed, Mrs. Beckman now suffers from significant impairments.

Mr. Beckman, as guardian for Mrs. Beckman, brought this suit against the Mayo Foundation, Dr. Hermann, Dr. Gruwell, and Dr. Carter for negligence in failing to recommend a CAT scan to Mrs. Beckman, making a final diagnosis of her without performing a CAT scan which resulted in their failure to detect the meningioma and failing to record their offers of a CAT scan in June of 1981. At a trial before a jury, both parties presented expert testimony as to whether or not the defendant had committed negligence in their diagnosis or treatment of Mrs. Beckman and whether or not her impairments were caused by the meningioma. The jury found that the defendants were not negligent and thus did not reach the issue of causation.

Plaintiff appeals contending that the district court erred in that it: 1) refused to make Dr. Hermann answer crucial questions; 2) failed to give some of plaintiff's submitted jury instructions; 3) failed to grant a new trial because the jury's finding was against the weight of the evidence; and 4) failed to grant a judgment notwithstanding the verdict on the issue of liability.

The district court has discretion to control the extent of examination and cross-examination of witnesses. Skogen v. Dow Chemical Co., 375 F.2d 692, 704 (8th Cir.1967). Rule 611(a) of the Federal Rules of Evidence states that the district court should " * * * exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." In the instant case, defendant Dr. Herman had testified extensively as to his discussion with Mrs. Beckman during her examination on June 18, 1981. He stated in detail what he had told her about the results of her tests and what additional benefit could be gained from a CAT scan. He also testified that, based on the events of June 18, 1981, his diagnosis and treatment of Mrs. Beckman had complied with the standard of care of a reasonably careful neurologist under the circumstances. The district court did not abuse its discretion in denying plaintiff's request that Dr. Hermann be required to answer cumulative questions about these subjects.

Plaintiff's next assignment of error is the failure of the district court to give plaintiff's proposed instruction on defendants' burden of proof and defendants' standard of care. In order to review the instruction for error, the party asserting the error must have made an objection to the instructions to the district court. Plaintiff made no objections to the instructions to the district court.

Rule 51 of the Federal Rules of Civil Procedure states that:

No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

This court has required a proper objection to an error in jury instructions to preserve such error for...