Butler v. Naylor

• Decision Date: 10 September 1999
• Docket Number: No. 980037.,980037.
• Citation: 987 P.2d 41,1999 UT 85
• Parties: Nina E. BUTLER, Plaintiff and Appellant, v. Robert G. NAYLOR, M.D., Defendant and Appellee.
• Court: Utah Supreme Court

987 P.2d 41

1999 UT 85

Nina E. BUTLER, Plaintiff and Appellant, v. Robert G. NAYLOR, M.D., Defendant and Appellee.

No. 980037.

Supreme Court of Utah.

September 10, 1999.

Robert M. Anderson, Salt Lake City, for plaintiff.

P. Keith Nelson, Mark L. McCarty, for defendant.

HOWE, Chief Justice:

INTRODUCTION

¶ 1 Plaintiff Nina E. Butler brought this action against defendant Robert G. Naylor, M.D., alleging that he negligently performed a sphincterotomy on her. Dr. Naylor denied any negligence, and the jury returned a verdict in his favor. Butler moved for a new trial contending the trial court erred by (1) admitting an excerpt from the Zollinger medical text into evidence as an exhibit and allowing the jury to take it into the jury room during deliberations, and (2) giving jury instruction regarding alternative treatment methods. Butler's motion was denied, and she now appeals.

BACKGROUND

¶ 2 In August 1992, Butler was experiencing severe diarrhea. She discussed the problem with Dr. Charles Arena who referred her to Dr. Dennis Avner, a gastroenterologist. In September 1992, Dr. Avner performed a colonoscopy on Butler and subsequently diagnosed her with inflammatory bowel disease. Dr. Avner then referred Butler to the defendant, Dr. Naylor, a general surgeon.

¶ 3 On October 15, 1992, Dr. Naylor diagnosed Butler with a large posterior anal ulcer and a tight anal sphincter. He recommended both the excision of the anal ulcer and a sphincterotomy to release the tight anal sphincter. One week later, he performed the recommended surgery on Butler. In the four months following the surgery, Butler had at least four follow-up visits with Dr. Naylor. She also had at least five meetings with Dr. Arena within a year of her surgery. Butler did not mention any incontinence or other bowel problems during these visits with either physician.

¶ 4 Butler's first documented complaints of post-surgery incontinence came during visits with Dr. Kathleen Boynton in November and December of 1993 and January of 1994. Upon examination, Dr. Boynton determined that Butler's rectal tone was normal, but was unable to find the cause of her incontinence. In the months following her examination by Dr. Boynton, Butler met with a number of physicians and surgeons, none of whom linked her incontinence with the surgery performed by Dr. Naylor.

¶ 5 Butler was eventually examined by doctors at the Mayo Clinic in Scottsdale, Arizona. The doctors there determined that the cause of her incontinence may have been a shorter than normal anal canal. To remedy the condition, Butler underwent an anoplasty, a twelve-minute operation which lengthens the anal canal. The doctors performing the operation found nothing indicating that the surgery Dr. Naylor performed caused Butler's incontinence, and the anoplasty's purpose was not to remedy anything that Dr. Naylor had done. Following the anoplasty, Butler noticed some limited improvement, but experienced continued incontinence accompanied by emotional trauma resulting from the inability to control her bowels.

¶ 6 On May 2, 1995, Butler filed this action against Dr. Naylor alleging medical malpractice in connection with the surgery to remove her anal ulcer and release the tight sphincter. As part of his defense, Dr. Naylor testified that the surgery on Butler was performed in a manner consistent with the procedure outlined in a general surgical text authored by Robert M. Zollinger and Robert M. Zollinger, Jr. ("Zollinger text"). That procedure involved making a one- by three millimeter incision in the scarred subcutaneous portion of the external sphincter in order to relax a band of scar tissue that circled the anus. Dr. Naylor relied on the text to prove that he performed the sphincterotomy on Butler according to standard surgical technique as recognized by the medical community. Over Butler's objections, the portion of the Zollinger text which Dr. Naylor relied upon was introduced into evidence as an exhibit; thereafter, it was delivered to the jury for use in deliberations.

¶ 7 Following the presentation of all evidence and closing arguments, the court excused the jury to commence their deliberations after which the trial court heard counsel's objections to the jury instructions. Butler objected to instruction thirty-eight which read, in sum, that when more than one method of diagnosis or treatment is recognized by a respectable portion of the medical community, a physician is not negligent in selecting one of the recognized methods, even if the method turns out to be a wrong selection, or one not favored by other physicians. The court noted Butler's objection.

¶ 8 The jury returned a verdict in favor of Dr. Naylor. Butler now appeals, contending she is entitled to a new trial because the court committed harmful error by (1) admitting the Zollinger text into evidence as an exhibit and providing it to the jury for use during deliberations; and (2) giving instruction thirty-eight to the jury over her objection.

STANDARD OF REVIEW

¶ 9 Rules of evidence are interpreted according to general rules of statutory construction. See State v. Robertson, 932 P.2d 1219, 1228 (Utah 1997)

. Where a rule's language is plain and unambiguous we will not look beyond the rule itself for meaning. See id. A trial court errs when it rules contrary to an evidentiary rule's plain meaning; however, an "`"erroneous decision to admit or exclude evidence does not constitute reversible error unless the error is harmful."'" Jones v. Cyprus Plateau Min. Corp., 944 P.2d 357, 360 (Utah 1997) (quoting Jouflas v. Fox Television Stations, Inc., 927 P.2d 170, 173 (Utah 1996) (quoting Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1378 (Utah 1995))). "Harmful error occurs where `the likelihood of a different outcome in the absence of the error is "sufficiently high so as to undermine confidence in the verdict."'" Id. (quoting Jouflas, 927 P.2d at 174 (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987))).

¶ 10 A trial court's ruling concerning a jury instruction is reviewed for correctness. See Billings v. Union Bankers Ins. Co., 918 P.2d 461, 466 (Utah 1996)

. A new trial will not be granted unless any error of the trial court was prejudicial, meaning that it misadvised or misled the jury on the law. See Vitale v. Belmont Springs, 916 P.2d 359, 363 (Utah Ct.App.1996).

ANALYSIS

I. EVIDENCE

¶ 11 Butler contends the trial court committed harmful error when, in violation of rule 803(18) of the Utah Rules of Evidence, it admitted into evidence as an exhibit a single page from the Zollinger medical text. She asserts that the trial court further prejudiced her when it permitted the jury to use the exhibit during deliberations. We review this issue to determine whether the trial court erred. If it did, we must then determine whether the abuse constituted harmful error which would entitle Butler to a new trial.

¶ 12 Dr. Naylor testified that he performed the surgery on Butler according to the procedure described and recommended in the Zollinger text. He stated that the procedure was intended to relax the anal canal and allow it to open normally. He also stated that he did not cut any of the muscle tissue of Butler's external sphincter.

¶ 13 At one point during his testimony, he read a passage aloud from page 456 of the Zollinger text that described how the surgery was to be performed. Following the reading, Dr. Naylor moved to have page 456 admitted into evidence as an exhibit. Butler objected, stating lack of foundation. Dr. Naylor then laid additional foundation and made a second motion to have the exhibit admitted. Butler objected again, this time citing rule 803(18). The court overruled the objection and allowed the page into evidence for illustrative purposes only.

¶ 14 Utah Rule of Evidence 803(18) creates an exception to the hearsay rule for learned treatises. It states:

The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness:

(18) To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

When rule 803(18) is construed according to its plain language, the trial court did err in admitting the Zollinger excerpt as an exhibit. See Robertson, 932 P.2d at 1228

. The rule prohibits the admission of published treatises as exhibits. In reference to rule 803(18), Professor Weinstein states:

To insure that the jurors will not be unduly impressed by the treatise, and that they will not use the text as a starting point for conclusions untested by expert testimony, the last paragraph bars the admission of treatises as exhibits so that they cannot be taken into the jury room.

J. Weinstein & M. Berger, 4 Weinstein's Evidence ¶ 803(18)[02] (addressing Federal Rule of Evidence 803(18)). Thus, the trial court erred by allowing the page to be admitted into evidence as an exhibit and by allowing it to be taken to the jury room for...