Becker v. Plemmons

• Decision Date: 31 August 1992
• Docket Number: No. 10A01-9112-CV-402,10A01-9112-CV-402
• Citation: 598 N.E.2d 564
• Court: Indiana Appellate Court
• Parties: George R. BECKER, CRNA, Appellant-Defendant, v. Sandra Lee PLEMMONS, Administratrix of the Estate of John Plemmons, Sr., Deceased, Appellee-Plaintiff.

Page 564

598 N.E.2d 564

George R. BECKER, CRNA, Appellant-Defendant, v. Sandra Lee PLEMMONS, Administratrix of the Estate of John

Plemmons, Sr., Deceased, Appellee-Plaintiff.

No. 10A01-9112-CV-402.

Court of Appeals of Indiana,

First District.

Aug. 31, 1992.

Gregory J. Bubalo, Tracy S. Prewitt, Ogden Newell & Welch, Louisville, Ky., for appellant-defendant.

John M. Longmeyer, Louisville, Ky., Donald R. Forrest, New Albany, for appellee-plaintiff.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

George R. Becker, CRNA ("Becker") appeals from a judgment in favor of Sandra Lee Plemmons, administratrix of the Estate of John Plemmons, Sr., deceased ("Estate"), in a medical malpractice action and an award of $500,000 plus costs. We affirm.

ISSUES

We consolidate and restate the issues on appeal as:

1. Did the trial court err in not ordering a mistrial after the Estate's cross-examination of Becker regarding his prior employment at an abortion clinic and was Becker's motion for a mistrial timely?

2. Did the trial court err in prohibiting Becker from questioning Dr. Bentz, Becker's own expert witness, regarding his past testimony in malpractice cases?

3. Did the trial court err in denying Becker's request for ex parte conferences with John Plemmons, Sr.'s ("Plemmons") treating physicians?

4. Was there sufficient evidence to support the jury's verdict?

FACTS

On admission to Clark County Hospital for an elective shoulder surgery, Plemmons' medical records reflected that he had a normal EKG, chest x-ray, blood pressure, heart rate, and laboratory tests. Record at 611 (Exhibit # 1 at 3-4). Surgery was scheduled for January 13, 1986. Dr. Karia, Dr. Jimenez, and Becker, a Certified Registered Nurse Anesthetist, were to perform the anesthesia services during the surgery which was to be performed by Dr. Gossman and Dr. Sligar. Becker, however, was the only anesthetist present throughout the entire course of Plemmons' surgery.

At 7:30 a.m., Plemmons was taken into the operating room where anesthesia was started. Record at 611 (Exhibit # 1 at 75). Prior to administering the anesthesia, Becker attached various monitors to Plemmons. One of the monitors was a Dinamap which monitors a patient's blood pressure and heart rate. A separate monitor, the Dinamap recorder, prints out a permanent record of the information. Becker started the Dinamap at approximately 7:30 or 7:31 a.m., Record at 1783, and he turned on the recorder at 7:45 a.m. Record at 1746. This time frame is consistent with the Dinamap recorder which has an elapsed time clock monitor. The first elapsed time printed on the record was 00:12, which means that at 7:45 a.m., when the record was first printed, the Dinamap monitor had been on for 12 minutes.

The Dinamap recorder's printed record shows that the Dinamap monitor was on for 58 consecutive minutes during Plemmons' surgery. At trial, Dr. Jefferies testified that the printed record show that once the Dinamap was activated at approximately 7:30 a.m., it was not turned off during the first 58 minutes of the surgery. Record at 759. Likewise, Dr. Jimenez, Becker's supervising anesthesiologist, testified that once the anesthetic was administered the Dinamap would not be turned off. Record at 1373.

Sometime between 8:16 and 8:21 a.m., 51 minutes after the Dinamap had been turned on, Plemmons had no recordable blood pressure or heart rate. Record at 721-22. Plemmons suffered a progressive lack of oxygen over the course of several minutes, resulting in his heart stopping and a total destruction of his brain from lack of oxygen. Record at 682-683. Testimony at trial attributed Plemmons' condition to Becker's failure to make sure Plemmons was "breathing properly or being breathed for properly" during surgery. Id. Plemmons went into cardiac arrest. The code for cardiac arrest, however, was not called until 8:30 a.m., when Becker alerted the surgery staff of Plemmons' condition. Record at 737-38. Plemmons was eventually resuscitated and stabilized. Plemmons was then taken to the Intensive Care Unit where he was pronounced brain dead, removed from his respirator, and died on January 16, 1986.

The Estate filed a proposed complaint with the Medical Review Panel, pursuant to

Indiana's Medical Malpractice Act ¹, against the hospital, Dr. Karia, Dr. Jimenez, and Becker. This action was later brought only against Becker. After a jury trial, a verdict was returned finding that Becker committed an act of malpractice and awarding the Estate $500,000 in damages. On August 22, 1991, the trial court entered judgment accordingly. Thereafter, Becker filed a motion to correct error requesting a new trial, which motion was denied. Record at 537-41. Becker now appeals.

DISCUSSION AND DECISION

Issue One

Becker argues that the Estate's reference to his prior employment was introduced for the sole purpose of prejudicing the jury against him and could not be remedied by an admonishment. The Estate counters that the reference was merely an attempt to demonstrate that Becker misrepresented his employment history.

The question of whether the conduct of counsel was so improper as to prejudice the fair conduct of the trial is within the sound discretion of the trial court, because the trial court has the advantage of observing the events and their effects at trial. Hall-Hottel Co. v. Oxford Square Co-Op., Inc. (1983) Ind.App., 446 N.E.2d 25, 30-31, trans. denied; Riverside Insurance Co. v. Pedigo (1982), Ind.App., 430 N.E.2d 796, 809. At trial, Estate attempted to inquire as to whether Becker did anesthesia in 1983 for "an abortion clinic" in the Lincoln Federal Building. Record at 1730. Before Becker stated any objection, the court interrupted and directed counsel to approach the bench. After the bench conference, the trial court admonished the jury to disregard the question. Record at 1730-31. The trial court instructed:

"The Jury will absolutely, totally disregard the last question posed by Counsel for the Plaintiff. It has no bearing on this particular case and indeed if we were to explore it further there might be evidence that it was a complete mis-identification of where the witness was previously employed, to that extent has no function in front of this Jury. Disregard it completely."

Id. Any harmful effect that may have occurred was cured by the trial court's admonishment. See Rudolph v. Landwerlen (1883), 92 Ind. 34, 40 (abuses in argument may be sufficiently corrected by admonishment and great discretion is afforded to the trial court's decision in refusing to grant a new trial). Not having the benefit of observing the actual events and their effects at trial, we must presume that the jurors followed the trial court's comprehensive admonishment. See Maynard v. State (1987), Ind.App. 508 N.E.2d 1346, 1358, trans. denied (admonishment presumed to cure any possible prejudice).

Becker further contends that the Estate, despite the trial court's instructions to the contrary, continued to emphasize the same subject matter. The Estate complied with the trial court's instructions. During the bench conference, the trial court prohibited the Estate from using the term "abortion." Record at 1766-67. Thereafter, the Estate continued with its cross-examination, asking Becker if he was employed at EMW Women's Health Services ("EMW") in 1983 and 1987, to which Becker responded affirmatively. Record at 1731. On direct examination, however, Becker testified that upon completion of his anesthesiologist program in 1981, he worked at Norton's Hospital for two years and then he came to Clark County Hospital where he became an employee of Dueke, Fulson, Jimenez, an anesthesiology group. Record at 1489. Becker also testified that he worked at Clark County Hospital in 1984, 1985, 1986, and 1987. Record at 1711.

Becker has failed to show how he has been unfairly prejudiced by the Estate's questions regarding the dates he was employed at EMW or that the questions were improper. Contrary to Becker's contentions, his prior employment is relevant to his training and competency. A person in the medical profession will have different skills and experience depending upon where that person has been employed. After direct examination, Becker had left the jury believing that his anesthesiologist experience was entirely hospital-based, which was not true. Additionally, Becker's failure to testify about his prior work experience at EMW, when he gave an otherwise detailed history of his anesthesiological experience, goes to his credibility as a witness. Since Becker testified on direct examination as to his prior employment, there was no error in cross-examining him regarding the same. See Davis v. Eagle Product, Inc. (1986), Ind.App., 501 N.E.2d 1099, 1107, trans. denied (cross-examination is appropriate means to "elucidate, modify, explain, contradict, or rebut" direct testimony).

Even if the trial court abused its discretion by concluding that any prejudice was cured by the admonishment, the trial court's denial of Becker's motion for mistrial would still be proper. The steps in the procedure to preserve an issue regarding counsel's misconduct for appellate review are:

" '(1) To promptly interpose and state their objection, if reasonably required, to the objectionable language or argument, and request the court to so instruct the jury as to counteract any harmful effect of such language or argument, and if granted, and such instruction was not sufficient to cure the error, follow such action by a motion to have the submission set aside; (2) to promptly object to the improper language or argument of counsel, and move to set aside the submission, stating reasons why the harm done could not be cured by any action the court might take in the matter.' "

Lawson v. Cole (1954), 124 Ind.App. 89, 92, 115 N.E.2d 134, 136 (emphases added). In the case at bar, Becker failed to advise the court promptly at the time of the admonishment that he believed it to be...