Burroughs v. Worsham

• Decision Date: 09 December 2002
• Docket Number: No. 3576.,3576.
• Citation: 352 S.C. 382,574 S.E.2d 215
• Court: South Carolina Court of Appeals
• Parties: Yolanda BURROUGHS, individually, and as Personal Representative of the Estate of James Burroughs, deceased, Respondent, v. John W. WORSHAM, M.D.; Terrell T. Leeke, M.D.; and Fairview Family Practice, Defendants, of whom John W. Worsham, M.D. and Fairview Family Practice are Appellants.

352 S.C. 382

574 S.E.2d 215

Yolanda BURROUGHS, individually, and as Personal Representative of the Estate of James Burroughs, deceased, Respondent, v. John W. WORSHAM, M.D.; Terrell T. Leeke, M.D.; and Fairview Family Practice, Defendants, of whom John W. Worsham, M.D. and Fairview Family Practice are Appellants.

No. 3576.

Court of Appeals of South Carolina.

Heard November 5, 2002.

Decided December 9, 2002.

John Hamilton Smith, of Charleston; Ruskin C. Foster and John C. Bradley, Jr., both of Columbia, for Appellants.

Susan C. Rosen and Richard S. Rosen, both of Charleston; Jeffrey J. Kroll and Isobel S. Thomas, both of Chicago, for Respondent.

ANDERSON, J.

Yolanda Burroughs, individually and as personal representative for James Burroughs' (Burroughs) estate, brought suit against Dr. John W. Worsham and Fairview Family Practice (collectively referred to as "Appellants") for medical malpractice. She alleged causes of action for wrongful death, survival, and loss of consortium. The jury awarded $3,500,000 each for the survival and wrongful death actions. The jury determined the decedent and Appellants were each fifty percent at fault. The jury found for Appellants on the loss of consortium claim. We affirm.

FACTS/PROCEDURAL BACKGROUND

Burroughs received a bachelor's degree, master's degree, and doctorate in theology. While serving as a missionary in Mexico, Burroughs met Yolanda, whom he married in 1984. They later had two children. After marrying, the couple moved back to the United States, and eventually settled in Greenville to be close to Burroughs' ill father.

Burroughs began working for the Hyatt Corporation as a night audit supervisor for $6.50 an hour. He was subsequently promoted to income auditor, to paymaster, to general cashier, to systems administrator, to systems specialist, and then to systems analyst. Burroughs was promoted in 1996 to Management Information Systems Manager. Finally, in May 1997, he was transferred to the corporate headquarters in Chicago, where he became an analyst on special programs and applications making $38,000.00 per year.

While residing in Greenville, Burroughs was a patient at Fairview Family Practice, which was owned by Dr. Worsham and Dr. Terrell T. Leeke. In 1990, Burroughs went to Dr. Leeke, who referred him to a gastroenterologist. Burroughs was diagnosed with a bleeding ulcer. Burroughs' first visit to Dr. Worsham was in 1992 for treatment of poison ivy. In 1993, Burroughs went back to the gastroenterologist and was diagnosed as having a propensity for ulcers and suffering from gastritis and duodenitis.

Burroughs was next seen by Dr. Worsham on April 12, 1995, to determine the cause of his lower abdominal pain. A hemoglobin test was performed and it indicated that Burroughs had a low hemoglobin count. Dr. Worsham prescribed ulcer medication, but provided no further treatment nor did he follow up on the hemoglobin count.

In August 1995, Burroughs returned to Fairview with abdominal pain. He was examined by Dr. Worsham and was diagnosed with acute bacterial prostatitis, for which an antibiotic was prescribed. Burroughs failed to follow-up for reexamination.

Dr. Worsham gave Burroughs a physical examination in February 1996. Burroughs continued having abdominal pain. Dr. Worsham informed Burroughs that he did not have any significant medical problems, but was anemic. Burroughs was prescribed iron and Citrucel. Dr. Worsham instructed Burroughs to return for a complete blood count in four weeks. According to Dr. Worsham, Burroughs did not go back for the four-week follow-up appointment.

Five months later, Burroughs returned with severe abdominal pain. Dr. Worsham did another blood test and again diagnosed Burroughs as having acute bacterial prostatitis. In his medical note, Dr. Worsham wrote: "[Burroughs] has a deep seeded [sic] fear of either prostate or stomach cancer...." Dr. Worsham additionally diagnosed Burroughs with "cancer phobia." Dr. Worsham directed Burroughs to call the next day for his lab results and to make an appointment to see Dr. Worsham in two weeks. Neither Dr. Worsham nor Burroughs followed up on the lab results.

Burroughs subsequently saw Dr. Worsham in October 1996. He complained of right side abdominal pain, dizziness, and weakness. Dr. Worsham believed Burroughs had a kidney stone and tests were performed which came back normal. Burroughs returned the following day with continued pain. Dr. Worsham felt a bulge in Burroughs' lower right abdomen. He concluded Burroughs had an incisional hernia over an old appendectomy scar.

Burroughs was referred to Dr. Joseph C. McAlhany, a general surgeon, for evaluation of his condition. Dr. McAlhany noted the pain was "just some strain secondary to the previous appendectomy scar." He prescribed anti-inflammatory agents and heat. Further, he instructed Burroughs to return for a recheck in two to three weeks. Burroughs failed to show up for the follow-up office appointment with Dr. McAlhany.

In April 1997, Burroughs returned to Fairview with abdominal pain. Because Dr. Worsham was no longer with the practice, Dr. Leeke treated Burroughs. Dr. Leeke determined Burroughs was suffering from abdominal pain and chronic anemia. He prescribed Burroughs' usual ulcer medications.

Approximately two weeks later, Burroughs moved to Chicago for his promotion with Hyatt Hotels Corporation. On November 3, 1997, Burroughs sought treatment in the emergency room of Edward Hospital for severe lower abdominal pain, dizziness, and diarrhea. He was admitted to the hospital. A CT scan showed a mass in the lower abdomen. Burroughs was diagnosed as having colon cancer.

Several surgeries were performed in an attempt to remove much of the cancer. However, by the time it was diagnosed, the cancer had spread throughout the abdomen. Burroughs' cancer was incurable. He and his family returned to Ware Shoals, where Burroughs received treatment and hospice care. Burroughs died in May 1999.

Yolanda originally brought this action against Fairview, Dr. Worsham, and Dr. Leeke. Dr. Leeke was dismissed by a directed verdict, and the initial trial ended in a mistrial. The case was retried against Appellants. The jury determined Appellants and Burroughs were each fifty percent liable. The jury awarded $3,500,000 on both the survival and wrongful death actions. The jury found for Appellants on the loss of consortium claim. Appellants' motions for judgment notwithstanding the verdict and a new trial absolute were denied.

ISSUES

I. Did the trial judge err in admitting Dr. Bart Green's testimony over Worsham's objection because South Carolina does not recognize the "loss of chance of survival" doctrine?

II. Did the trial court err in admitting testimony from Burroughs' employer regarding possible future promotions and salary ranges, and in allowing testimony by an economist, who relied on these figures for calculation of future damages?

III. Did the trial court err in refusing to allow Worsham, as referring doctor, to testify as to what he expected Dr. McAlhany to do in evaluating and diagnosing Burroughs' condition pursuant to the referral?

IV. Did the trial court err in refusing to permit Worsham to testify that his review of Dr. McAlhany's chart showed no entry indicating Burroughs returned for a follow-up visit?

V. Did the trial court err in failing to properly charge the jury regarding the standard of care to which Worsham should be held?

VI. Were the jury verdicts in this case inconsistent, where the jury found damages for wrongful death but no damages for loss of consortium?

STANDARD OF REVIEW

I. Admission of Expert Testimony

The admission or exclusion of expert testimony is a matter within the sound discretion of the trial court. Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998); Means v. Gates, 348 S.C. 161, 558 S.E.2d 921 (Ct.App.2001). A trial court's ruling to exclude or admit expert testimony will not be disturbed on appeal absent a clear abuse of discretion. Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002); Means, 348 S.C. at 166,558 S.E.2d at 923; see also Lee v. Suess, 318 S.C. 283, 457 S.E.2d 344 (1995) (admission of expert testimony is within sound discretion of trial judge and will not be overruled absent finding of abuse of discretion and prejudice to complaining party). An abuse of discretion occurs when there is an error of law or a factual conclusion that is without evidentiary support. Bayle v. South Carolina Dep't of Transp., 344 S.C. 115, 542 S.E.2d 736 (Ct.App.2001).

II. Exclusion of Testimony

It is well settled that the admission and rejection of testimony are matters largely within the trial court's sound discretion, the exercise of which will not be disturbed on appeal absent an abuse of that discretion. Pike v. South Carolina Dep't of Transp., 343 S.C. 224, 540 S.E.2d 87 (2000); Commerce Ctr. of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc., 347 S.C. 545, 556 S.E.2d 718 (Ct.App.2001); see also Gamble v. International Paper Realty Corp., 323 S.C. 367, 474 S.E.2d 438 (1996) (admission or exclusion of evidence is matter within sound discretion of trial court and, absent clear abuse, will not be disturbed on appeal). To warrant reversal, the appellant "must show both the error of the ruling and resulting prejudice." Recco Tape and Label Co. v. Barfield, 312 S.C. 214, 216, 439 S.E.2d 838, 840 (1994); see also Carlyle v. Tuomey Hosp., 305 S.C. 187, 407 S.E.2d 630 (1991) (proof that an error caused the appellant prejudice is a prerequisite to reversal based on error where the trial court's discretion is involved). In order for this Court to reverse a case based on the erroneous admission or exclusion of evidence, prejudice must be shown. Hanahan v. Simpson, 326 S.C. 140, 485 S.E.2d 903 (1997); Commerce Ctr., 347 S.C. at 559, 556 S.E.2d at 726; see also Potomac Leasing Co. v. Bone, 294 S.C. 494, 497, 366 S.E.2d 26, 28 (Ct.App.1988) ("Before the Court of Appeals will reverse a judgment...