Brown v. Hamid

• Decision Date: 29 June 1993
• Docket Number: No. 74850,74850
• Parties: Virginia M. Ellis BROWN, Appellant, v. Rashid S. HAMID, M.D., Respondent.
• Court: Missouri Supreme Court

Page 51

856 S.W.2d 51

Virginia M. Ellis BROWN, Appellant, v. Rashid S. HAMID, M.D., Respondent.

No. 74850.

Supreme Court of Missouri,

En Banc.

June 29, 1993.

Gwendolyn S. Froeschner, Columbia, for appellant.

Raymond C. Lewis, Columbia, for respondent.

BENTON, Justice.

Virginia M. Ellis ¹ sued Dr. Rashid S. Hamid for medical malpractice, specifically (1) prescribing the drug Corgard without knowing her prior medical condition; (2) failing to discontinue or taper Corgard; and (3) failing to diagnose and treat symptoms of congestive heart failure. The jury, after 33 minutes of deliberation, returned a unanimous verdict for Hamid. Ellis appealed to the Court of Appeals, Western District, and then this Court granted transfer. Affirmed.

Ellis asserts as trial court errors: (1) not sanctioning Hamid or defense counsel for unauthorized ex parte contact with her non-treating expert witness; (2) granting Hamid's motion in limine excluding any mention of missing office medical records; and (3) denying leave to amend her petition to add a second count for intentional spoliation or negligent maintenance of her records. Hamid counters that this Court should dismiss the appeal for untimely filing and numerous procedural violations.

I.

Ellis first saw Hamid in May 1984 for precautionary blood screening, because her son--already Hamid's patient--had hepatitis. Hamid found that Ellis did not have hepatitis, but that she suffered from hypertension (high blood pressure), diabetes, high cholesterol and low potassium. Hamid recommended that Ellis see her regular physician but since she was already at Hamid's office, she requested that he care for her.

Hamid prescribed potassium, increased her diabetes medication, and also discussed diet, counseling her to lose weight. On subsequent visits, Ellis' blood pressure remained high. Around June 10, 1984, Hamid gave her 42 "office sample" tablets of Corgard with directions to take one a day. This is a minimal dosage of Corgard, a beta blocker, which slows the heart rate and the force of the heart contraction. Ellis took 20 of the tablets in June 1984.

On June 30, 1984, Ellis visited Hamid's office complaining of chilling, coughing and fever. Because Ellis had some shortness of breath, Hamid did a chest x-ray, which indicated congestion in her lungs. Hamid testified that he urged her to go to the hospital but she refused, so he gave her a shot of antibiotic. That afternoon, Ellis became worse and was admitted to the hospital with congestion, coughing, chilling, and shortness of breath. The admitting diagnosis was bronchitis. Later that evening, based on an x-ray, Hamid diagnosed congestive heart failure and administered Lasix, a diuretic. Ellis improved within hours. Although Corgard can aggravate congestive heart failure, Hamid continued to administer the drug, fearing that an abrupt halt could cause a heart attack. Corgard was discontinued on July 3, 1984, by a consulting specialist in cardiology. After a seven-day hospitalization, Ellis was discharged, and has since been disabled, unable to work.

II.

Before this Court and the court of appeals, Hamid urges dismissal of the appeal because of numerous procedural deficiencies in filing and briefing. Hamid first attacks the court of appeals' order granting Ellis leave to appeal out of time. This Court will not disturb a special order of the court of appeals absent an abuse of discretion, which does not appear here. Rule 81.07; cf. Frankoviglia v. Centerre Bank of Branson, 791 S.W.2d 7, 9 (Mo.App.1990) (special order may be granted only if motion is filed within six months after final judgment).

Next, Hamid emphasizes defects on appeal, such as: errors in appellant's brief, the abbreviated transcript, an incomplete legal file, and a statement of facts claimed to be unfair and not concise. Hamid, in fact, filed substantial supplements to the transcript.

Cases should be heard on the merits if possible, construing the court rules liberally to allow an appeal to proceed. Sherrill v. Wilson, 653 S.W.2d 661, 663 (Mo. banc 1983). While not condoning noncompliance with the rules, a court will generally, as a matter of discretion, review on the merits where disposition is not hampered by the rule violations. Labrier v. Anheuser Ford, Inc., 621 S.W.2d 51, 55 (Mo. banc 1981).

The briefs in this case delineate the issues, citing authority and argument from which the issues can be decided. Eventually, an adequate transcript and legal file coalesced. In this case, the alleged deficiencies do not prevent review on the merits. See Thummel v. King, 570 S.W.2d 679, 690 (Mo. banc 1978).

III.

On April 25, 1989, during early discovery, Hamid's attorney telephoned Ellis' expert at his office in the Medical Center. The expert, a doctor and medical school professor, never treated Ellis in the role of physician-patient. Hamid's attorney opened the conversation by stating that his purpose was to ascertain whether the expert "authored" a one-page opinion of the case. Ellis had responded with this one-page opinion, below the expert's name, to the standard interrogatory asking the name of each expert witness and the general nature of the expert's subject matter. See Rule 56.01(b)(4)(a). Ellis' expert confirmed that the interrogatory response included parts of his four-page review. During the conversation, Hamid's attorney claimed that a distinguished, retired physician had examined the case and found no malpractice, that a doctor's mistake did not necessarily constitute medical malpractice, and that Hamid's attorney had defended the expert's colleague and had used another colleague as an expert in another case. Hamid's attorney did apologize several times, saying he did not want to be telling the expert what to do. Hamid's attorney asked if the expert were going to testify; the expert answered that he would be reviewing more data and had not yet decided. The expert believed that the call was not "a big deal" but also that the real reason for the 7-to-10-minute call was to "dissuade" him from testifying as an expert by exerting "social pressure."

Ellis argues that the ex parte contact was "improper," citing State ex rel. Woytus v. Ryan, 776 S.W.2d 389 (Mo. banc 1989), and McClelland v. Ozenberger, 805 S.W.2d 264 (Mo.App.1991). Both Woytus and McClelland involved treating physicians. Brandt v. Pelican, 856 S.W.2d 658 (Mo. banc 1993) clarifies the rules governing ex parte contacts in that circumstance. These rules apply, however, only when there exists a physician-patient relationship.

In the present case, while the expert witness is a doctor, he never treated Ellis. Discovery of this doctor's opinions is governed by the rules for discovery of an expert's opinions, rather than by the rules for discovery of a "fact" witness. The question thus becomes whether, as a means of informal discovery, opposing counsel may contact ex parte an expert retained by the other side.

Rule 56.01(b) recognizes two roles that a retained expert can play in a case. First, an expert can be a "consultant," giving opinions to advise the legal team. Rule 56.01(b)(3). Second, an expert can be a trial witness. Rule 56.01(b)(4).

Rule 56.01(b)(4)(a) requires a party to disclose, upon interrogatory, the names of its expert witnesses. Until such an interrogatory, retained experts are consultants; and their written opinions are work product. Under Rule 56.01(b)(3), work product enjoys a "qualified immunity" from discovery. State ex rel. Missouri Highways & Transportation Commission v. Legere, 706 S.W.2d 560, 566 (Mo.App.1986). This immunity is absolute with regard to the mental impressions, conclusions, or opinions of consultants. Rule 56.01(b)(3).

A party waives any work product immunity for a consultant by giving the work product to the other side, or by authorizing the consultant to talk to the other side. If the consultant is also a witness, this immunity is waived by formal discovery. The identification of a retained expert as a witness begins the process of waiving this immunity. At the time of identification, a party need only disclose the general subject matter of the testimony. Rule 56.01(b)(4)(a). If the expert is deposed under Rule 56.01(b)(4)(b), further information is disclosed, constituting a waiver of the "work product immunity." While the disclosure may only be compelled by formal discovery, which is limited by Rule 56.01(b)(4), nothing in the Rules forbids a party from using informal discovery--including ex parte contacts--to discuss matters previously disclosed.

In the present case, while the ex parte contact occurred before the deposition, significant information was disclosed by the one-page summary of the expert's opinion included with Ellis' answer to the interrogatory seeking the expert's name. To the extent that the ex parte contact concerned this summary, it was within the scope of the waiver by that disclosure.

The rest of this ex parte contact could be perceived as an attempt to pressure the expert not to testify. In both formal and informal discovery, the Rules do not prohibit a party from trying to convince an expert that an opinion is erroneous, and should be reconsidered in light of particular facts or in light of the opinions of other experts. However, when a party or an attorney emphasizes his or her connections with an expert's colleagues or superiors--especially when unrelated to the case--it may constitute a form of pressure on an expert's decision to testify, and implies the possibility of indirect benefits or punishments from that decision. In some circumstances, such pressure may constitute a violation of an attorney's ethical duties or the criminal law. See § 575.270.1 RSMo 1986; Rules of Professional Conduct (Rule 4 of the Missouri Rules of Court), Rule 3.4.

In its discretion, a trial court may fashion an appropriate remedy to minimize the effect of an improper part of an ex parte contact. Appellate courts review the decision of the trial...