Anton v. Thomas, 880658-CA
| Decision Date | 12 February 1991 |
| Docket Number | No. 880658-CA,880658-CA |
| Citation | 806 P.2d 744 |
| Parties | Anthony ANTON and Judi Anton, as representatives for Perry Anton, their child, Plaintiffs and Appellants, v. Allan P. THOMAS, M.D., Defendant and Appellee. |
| Court | Utah Court of Appeals |
B. Ray Zoll (argued), Tom D. Branch, James C. Daugherty, Salt Lake City, for plaintiffs and appellants.
Gary D. Stott (argued), JoAnn E. Carnahan, Richards, Brandt, Miller & Nelson, Salt Lake City, for defendant and appellee.
Before GARFF, JACKSON and ORME, JJ.
This is a medical malpractice action based upon the alleged failure of appellee Dr. Allan Thomas to diagnose a urethral blockage suffered by appellants' minor child Perry Anton. By special verdict, a jury found "no negligence" in favor of Thomas. Appellants (referred to collectively as "The Antons") appeal. On appeal, the Antons assert errors at trial as follows: (1) the trial court's failure to qualify a witness as an expert, (2) jury instruction sixteen misled the jury concerning standard of care, (3) the trial court's denial of a motion for a new trial, and (4) the jury's verdict of "no negligence" was not supported by the evidence. We affirm.
Dr. Thomas was the Antons' first pediatrician when Perry Anton was born in 1976. There is a dispute as to how often Thomas saw Perry during his first year; the parties agree the last time Thomas treated Perry was in April 1982. Over a period of five years, according to the Antons, Perry was examined and treated by Thomas for several complaints including recurring urination problems. Thomas analyzed Perry's urine on several occasions and concluded his urination problems were behavioral in nature.
The Antons had Perry evaluated by a pediatric urologist, Dr. Richard Lee, in 1981, when Perry was five years old. Perry's problems included long-standing difficulty with urination, crying in the night, pain with urination and day and night incontinence. Dr. Lee performed several urological tests and diagnosed posterior urethral valves 1 which were blocking Perry's passage of urine. Dr. Lee prescribed a catheter to allow for voluntary urination, and he operated on Perry eleven days later. Three more operations followed within the next two months and urethral implant surgery was performed in September 1982. Follow-up tests revealed marked improvement in Perry's upper urinary tract and he required no further surgery. The Antons testified that as a result of his urinary tract difficulties, Perry is on high blood pressure medication and must limit his physical activities.
Expert testimony at trial indicated that posterior urethral valves is a somewhat rare condition. There was conflicting testimony as to what action, if any, should have been taken by Thomas given the Antons' repeated complaints concerning Perry's health. The Antons testified they had reported to Thomas on several occasions that Perry seemed to have difficulty urinating, that his growth was behind that of his peers, that he had little or no appetite, and that he had daytime incontinence. Thomas's testimony was not in full accord on these points.
The Antons sued Thomas for medical malpractice, claiming that Perry suffered permanent impairment and disability as a result of Thomas's failure to diagnose the urethral blockage. A four day trial ensued. The jury returned a special verdict finding Thomas was not negligent in his treatment of Perry. The Antons' motion for a new trial was denied and they appealed.
With few exceptions, a plaintiff in a medical negligence case must introduce expert testimony to establish the standard of care by which the doctor's conduct is to be measured. Butterfield v. Okubo, 790 P.2d 94, 96-97 (Utah Ct.App.1990); Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah Ct.App.1988); Robinson v. Intermountain Health Care, 740 P.2d 262, 264 (Utah Ct.App.1987). The Antons sought to have Dr. James H. Howell qualified as an expert to testify as to the standard of care provided by pediatricians in Utah at the time of the facts in controversy, and to give his opinion concerning Thomas's performance related to that standard. Dr. Howell testified he was a graduate of the University of Utah College of Medicine; that he was the medical director for the Wyoming State Training School at the time of trial; that he was in contact with physicians in the state of Utah on a regular basis; and that he had reviewed Perry Anton's medical records. The trial court declined to qualify Dr. Howell as an expert witness because sufficient foundation for his opinion was not laid.
The trial court has discretion to determine the admissibility of expert testimony, and to determine if the witness is qualified to give an opinion on a particular matter. Gaw v. State Dept. of Transp., 798 P.2d 1130, 1134 (Utah Ct.App.1990); Utah R.Evid. 702. Such a ruling will not be reversed unless the trial court abused its discretion in excluding the expert testimony, and, even then, only if the appellant can show "the excluded evidence would probably have had a substantial influence in bringing about a different verdict." Gaw, 798 P.2d at 1133-34 (quoting Redevelopment Agency v. Tanner, 740 P.2d 1296, 1303-04 (Utah 1987)). Admission of expert testimony requires proper foundation to qualify the witness. Burton v. Youngblood, 711 P.2d 245, 248 (Utah 1985) (); Schindler v. Schindler, 776 P.2d 84, 89 (Utah Ct.App.1989) (); State v. Pendergrass, 803 P.2d 1261, 1265 (Utah Ct.App.1990) ().
The parties agree, and the trial court found the Youngblood standard to be germane to the present case. Defendant Youngblood, a board-certified plastic surgeon, performed an upper eyelid surgery, blepharoplasty, on plaintiff Burton. Burton developed complications as a result of the surgery and filed an action alleging medical negligence. On appeal, Burton asserted that the trial court erred in excluding testimony of an ocular plastic surgeon on the basis that the expert was not qualified to testify as to the standard of care of Youngblood, a general plastic surgeon who performed ocular surgery. In affirming, the Utah Supreme Court observed, "[h]ad Burton's counsel laid adequate foundation to establish that the ... methods governing blepharoplastic surgery were identical, regardless of whether the physician was a general or specialized plastic surgeon ... then the expert would have been free to testify." Youngblood, 711 P.2d at 248 (citations omitted).
Applying Youngblood to the present case, the trial court did not abuse its discretion in not qualifying Howell as an expert witness. No foundation was laid or sought to be laid regarding Howell's qualifications to testify concerning the standard of care in Utah. At the time of trial, and presently, Howell is a director of an institution for mentally retarded persons of all ages in Wyoming. His experience with pediatric patients is limited to his above employment and in medical school while functioning as an intern.
The Antons contend even though Howell is a general practitioner, he could still be called as an expert witness to give an opinion on the standard of care even a general practitioner should use in referring a patient to another specialist, in this case, a urologist. At trial, however, the Antons' counsel sought only to elicit an opinion from Howell concerning the standard of care of pediatricians and physicians in Utah. These questions did not specifically address referral practices but treatment practices. We conclude that there was no error in not allowing Howell to testify as an expert witness.
The Antons also allege that...
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