Bella v. Turner, 30 S.W.3d 892

• Decision Date: 05 October 2000
• Citation: 30 S.W.3d 892
• Court: Missouri Court of Appeals

30 S.W.3d 892

ANNE M. BELLA, Plaintiff-Respondent, v. STEVEN R. TURNER, M.D., and HEART CLINIC OF THE OZARKS, INC., Defendants-Appellants.

No. 23399

COURT OF APPEALS OF MISSOURI, SOUTHERN DISTRICT, DIVISION TWO

October 5, 2000, Filed

Bruce E. Hunt, Jeffrey S. Monroe and Russell L. Makepeace, of BURKART & HUNT, P.C., of Springfield, Mo., for Appellants.

David W. Ansley and Deborah K. Dodge, of HALL, ANSLEY, RODGERS & CONDRY, P.C., of Springfield, Mo., for Respondent.

James K. Prewitt, Judge. Crow, J., and Garrison, J., concur.

Plaintiff sought damages for medical malpractice against Defendant Steven R. Turner, a medical physician, and the clinic with which he is associated, Defendant Heart Clinic of the Ozarks, Inc. Following a jury trial, a verdict was received awarding Plaintiff one million dollars against both Defendants. Pursuant to the limitation of noneconomic damages contained in § 538.210, RSMo 1994, judgment was entered in favor of Plaintiff for $ 762,290.00. Defendants appeal, presenting five points relied on.

As the sufficiency of the evidence to support the verdict is not an issue, we will initially only briefly set forth the facts. Other relevant facts will be mentioned in discussing the points relied on.

Plaintiff entered the hospital on December 19, 1996, suffering from a heart attack. Defendant Turner, a cardiologist, performed an angioplasty and administered the anti-coagulant drug, heparin, to reduce the risk of blood clotting. Plaintiff remained on heparin until December 24, 1996, when she was discharged from the hospital.

The following day, Plaintiff returned to the hospital, having suffered a stroke. Other physicians treated her and administered heparin. Defendant Turner resumed the care of Plaintiff on January 1, 1997, and continued to prescribe heparin. On January 6, 1997, Plaintiff suffered another stroke. On January 15, at the request of Plaintiffs family, Defendant Turner ceased treating Plaintiff and another cardiologist, Dr. Allyn, assumed primary care of Plaintiff.

Dr. Allyn called in a hematologist, Dr. Gomez, who discontinued heparin on January 17, and diagnosed Plaintiff as having heparin-induced thrombocytopenia with thrombosis ("HITT"), an abnormal condition that causes blood to clot due to heparin.

In their brief, Defendants summarize "Plaintiffs theory of the case is that the administration of Heparin in conjunction with this disease caused her blood to clot, resulting in an ischemic stroke." Defendants state that their "theory of the case was that plaintiff suffers from antiphospholipid antibody syndrome (APLAS), another blood disorder, and that APLAS in fact caused the stroke." Defendants state that "heparin is appropriate therapy for APLAS."

Defendants' initial point contends that the trial court erred in preventing Defendants from cross-examining two medical physicians who testified as experts for Plaintiff "regarding standard of care and the nature of the diagnosis in dispute." Defendants assert that this kept them from cross-examining the physicians "on matters of objectivity and credibility, . . . and . . . prevented defendants from developing testimony refuting a key component of plaintiffs case-in-chief, namely that HITT was a common and well-known diagnosis in 1996."

After Dr. Patricia Cole testified for Plaintiff, Defendants' counsel sought, by an offer of proof presented out of the hearing of the jury, to show that Dr. Cole found no fault with the treatment of Dr. Allyn, who took over Plaintiffs care on January 15. Dr. Allyn continued administering heparin until bringing in Dr. Gomez as a hematological consultant on January 17. On that day, Dr. Gomez discontinued heparin and made the diagnosis of heparin-induced thrombocytopenia with thrombosis.

After Dr. Gerald Allen Soff testified for Plaintiff, Defendants' counsel made an offer of proof by questioning the doctor out of the presence of the jury. Essentially, the questions asked sought to show that the other physicians involved in Plaintiffs care did not seek to discontinue the heparin and did not reach the diagnosis of heparin-induced thrombocytopenia with thrombosis, yet Dr. Soff found no fault with them. In response to a series of questions, Dr. Soff stated that at least one of the other physicians, "if . . . in a position to directly affect the use or not to use [sic] heparin, . . . deviated from the standard of care." As we read his testimony, he placed responsibility on Dr. Turner, because he was the primary attending physician, rather than a consultant.

Defendants argue that Plaintiffs two experts were using a "double standard" because the experts gave testimony "criticizing defendant Turner for not making a diagnosis while preventing defendant from demonstrating that other members of his profession were not held to the same standard of care in treating plaintiff." However, as we read the testimony Defendants elicited in an offer of proof, it appears that Dr. Cole found no fault with Dr. Allyn because Dr. Allyn brought in a hematological consultant who discontinued the heparin within two days after he became the primary attending physician. Dr. Soff appears to have testified that as the primary attending physician, it was Dr. Turner who was responsible for the use of heparin.

Both parties discuss Tillman v. Elrod, 897 S.W.2d 116 (Mo.App. 1995), which states, at 118: "Where concurrent or successive negligence combined together results in injury, the injured party may recover damages of either or both, and neither can use the defense that the prior occurrence or negligence of the other contributed to the injury." Defendants acknowledge that Tillman "stands for the proposition that concurrent tortfeasors cannot escape liability by pointing out the misfeasance of one another." They say they do not dispute this statement, but argue that the trial court exceeded the holding of Tillman "by preventing effective cross examination of the experts regarding standard of care."

The portion of Tillman that the parties discuss pertains to negligence of two or more persons combining to create an injury. Tillman is not controlling, as it appears the physicians who subsequently treated Plaintiff caused no injury, in that the damage from the stroke had already occurred. Tillman aside, there was no abuse of discretion in the trial court's ruling. Although cross-examination on matters of credibility is generally permitted, the extent and scope of cross-examination is in the discretion of the trial court, and its ruling will not be disturbed except where a clear abuse is shown. Cram v. Newt Wakeman, M.D., Inc., 800 S.W.2d 105, 107 (Mo.App. 1990).

The admissibility of expert testimony is within the trial court's discretion. Estate of Dean, 967 S.W.2d 219, 224 (Mo.App. 1998). "A trial court does, not usually commit reversible error by mere exclusion of expert testimony, even if the offered testimony is relevant and admissible." Id. Furthermore, "[a] trial court . . . is authorized to exclude evidence which is irrelevant, immaterial or which is collateral to the proceeding." Id. Stated another way: "It is . . . generally proper to exclude . . . evidence that unnecessarily diverts the attention of the jury from the question to be decided." Destin v. Sears, Roebuck & Co., 803 S.W.2d 113, 116 (Mo.App. 1990). "If a decision of the trial court on the admission, or exclusion of evidence is correct for any reason it will be affirmed." Id. at 117.

Generally, courts have ruled that evidence of the negligence of other persons not before the court is not admissible. See Longshore v. City of St. Louis, 699 S.W.2d 16, 18 (Mo.App. 1985)(error to admit evidence that other persons used road for negligent or illegal purpose of drag racing in wrongful death case). See also State v. Hutchison, 947 S.W.2d 535, 536 (Mo.App. 1997)(evidence of other's negligence not a defense in criminal charge of careless and imprudent driving).

Plaintiffs experts in Defendants' offer of proof explained how the circumstances when Dr. Allyn took over Plaintiffs care were different from those while Dr. Turner was treating Plaintiff. It is unlikely that the jury would have found that there was, as Defendants urge, a "double standard" in the witnesses' standard of care. Under these circumstances, we do not think that it was abuse of discretion for the trial court to exclude testimony which would have discussed whether Dr. Allyn was also negligent, as such testimony might be confusing to the jury. The cross-examination that Defendants sought would have brought up the negligence of another physician who treated Plaintiff after the fact of the damage. Such evidence is generally irrelevant and can be confusing to the jury. Placing it under the label of cross-examination as to the standard of care does not change what it would have presented to the jury. Under these circumstances, we find no abuse of discretion by the trial court in excluding it. Point I is denied.

For their second point, Defendants contend that the trial court erred when it prevented Defendants from making an adverse inference argument due to the failure of Plaintiff to call as witnesses two of her treating physicians, Dr. Allyn and Dr. Gomez. As earlier noted, Dr. Allyn succeeded Dr. Turner as Plaintiffs primary attending physician and Dr. Allyn called in Dr. Gomez for a hematological consult.

Defendants cite, among other decisions, this District's opinion in Adams v. Kiser, 971 S.W.2d 331, 333 (Mo.App. 1998), for the holding that there is a presumption that a party's treating physician is more available to that party and thus not equally available, which allows the opposing party to comment on the failure to call that physician as a witness. Adams was an automobile negligence action, not medical malpractice. Here, we think the considerations are considerably different.

Hill v. Boles, 583 S.W.2d 141 (Mo.banc 1979), provided for a balancing test in determining whether a treating physician is more...