Clark v. Ross, 0406

• Decision Date: 21 November 1984
• Docket Number: No. 0406,0406
• Citation: 284 S.C. 543,328 S.E.2d 91
• Court: South Carolina Court of Appeals
• Parties: Benjamin F. CLARK, Administrator of the Estate of Angela Latreva Brown, Respondent, v. Sam H. ROSS, III and Thomas Collings, Appellants. . Heard

Page 91

328 S.E.2d 91

284 S.C. 543

Benjamin F. CLARK, Administrator of the Estate of Angela Latreva Brown, Respondent, v. Sam H. ROSS, III and Thomas Collings, Appellants.

No. 0406.

Court of Appeals of South Carolina.

Heard Nov. 21, 1984.

Decided March 6, 1985.

Betty J. Gambrell Cobb of King & Cobb, Jackson L. Barwick, Jr. of Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia; H. Grady Kirven and Steven C. Kirven of Watkins, Vandiver, Kirven, Gable & Gray, Anderson, for appellants.

Glenn W. Thomason and Michael F. Mullinax of Long, Thomason & Mullinax, Anderson, for respondent.

GOOLSBY, Judge:

In this medical malpractice action by the respondent Benjamin F. Clark, the Administrator of the Estate of Angela Latreva Brown, against two physicians, the appellants Sam H. Ross, III, M.D., and Thomas Collings, M.D., the questions on appeal relate to (1) the admissibility of certain testimony, (2) the limitation placed on the cross-examination of an expert witness, (3) the sufficiency of the evidence to support the verdict against each physician, (4) the trial judge's failure to grant a mistrial, (5) the trial judge's jury instructions, (6) the amount of damages, and (7) the award of certain expenses to Clark. We affirm as to both physicians the judgment represented by the jury verdict in Clark's favor in the amount of $175,000 actual damages and the award of expenses, including attorney fees, made by the Honorable Walter T. Cox, Jr., in the amount of $1,541.40. We reverse as to both physicians the judgment represented by the award of expenses, including attorney fees, made by The Honorable Clyde A. Eltzroth in the amount of $2,396.40 and remand the issue for redetermination.

Angela Latreva Brown became ill on Monday, July 2, 1979, while visiting her grandparents, Benjamin F. and Dorothy Clark, in Williamston, South Carolina. She complained of headaches and of the light hurting her eyes. Latreva also had a fever and experienced vomiting. Six days earlier, Latreva's grandmother removed a tick from Latreva's scalp following a fishing trip Latreva had taken with her grandparents and a cousin, Deirdre McClellan.

The following day, Latreva's grandmother took her to see Dr. Ross, a general practitioner who practices medicine in Williamston. He diagnosed Latreva as having tonsillitis and sinus congestion and prescribed a form of penicillin for her.

Latreva's condition, however, steadily worsened. She continued to suffer from headaches and a fever. Also, the light still hurt her eyes. By Wednesday evening, a rash, which the grandparents thought resulted from a reaction to the medicine, covered Latreva's chest and extremities. She complained of muscle and joint aches.

The grandmother took Latreva to Dr. Ross once again. This time, Dr. Ross diagnosed Latreva's condition as Fifth's disease, a malady similar to measles. He gave the grandmother a cortisone cream to put on the rash.

Latreva did not improve. After learning late Friday that Deirdre had been admitted by Dr. Collings, a pediatrician, to the Anderson Memorial Hospital for treatment of Rocky Mountain Spotted Fever, Latreva's grandparents took Latreva to the emergency room at the same hospital. Dr. Collings examined Latreva but would not admit her. He too diagnosed Latreva's condition as Fifth's disease.

Latreva's condition deteriorated. On Saturday morning, Latreva's grandmother again called Dr. Ross. He instructed her to take Latreva to Dr. Colquit Sims, Jr., an Anderson pediatrician.

Dr. Sims saw Latreva about 10:30 a.m. and determined she was in shock. He immediately sent her to the Anderson Memorial Hospital where treatment for Rocky Mountain Spotted Fever was begun by Dr. Steven Robert Horn, a second-year family practice resident.

Latreva died at approximately 11:00 p.m. that night. She was six years old. The pathology report states Latreva's death resulted from complications associated with Rocky Mountain Spotted Fever.

Clark's complaint charges that the failure of Dr. Ross and Dr. Collings to diagnose and treat Latreva for Rocky Mountain Spotted Fever caused her death.

I.

A.

Both physicians complain of the trial judge's admission in evidence of the grandmother's testimony that quoted Dr. Sims as saying when he first looked at Latreva, "This thing has done went too far." They objected to the testimony on the ground that the statement attributed to Dr. Sims constituted inadmissible hearsay. The trial judge, citing the Federal Rules of Evidence, which neither our legislature nor our Supreme Court has yet adopted, held the statement admissible as a present sense impression. See FED.R.EVID. 803(1).

We recently observed in Hall v. Palmetto Enterprises II, Inc., of Clinton, 282 S.C. 87, 317 S.E.2d 140 (S.C.App.1984), that the admission or exclusion of evidence is within the sound discretion of the trial judge and that the exercise of his discretion will not be disturbed on appeal absent a clear showing of an abuse of discretion, the commission of legal error in its exercise, and prejudice to the rights of the appellant. See also S.C. State Highway Dept. v. Rural Land Co., 250 S.C. 12, 156 S.E.2d 333 (1967); Welch v. Whitaker, 282 S.C. 251, 317 S.E.2d 758 (S.C.App.1984).

Assuming Dr. Sims's out-of-court statement constituted inadmissible hearsay [ see Addyman v. Specialties of Greenville, Inc., 273 S.C. 342, 257 S.E.2d 149 (1979); Bain v. Self Memorial Hospital, 281 S.C. 138, 314 S.E.2d 603 (S.C.App.1984); W. Reiser, A Comparison of the Federal Rules of Evidence with South Carolina Law at 42 (2d ed. 1983) ], neither physician demonstrated any prejudice resulting from its admission by the trial judge. Dr. Sims testified at trial and thus afforded both physicians the opportunity to cross-examine him regarding the statement. In this state, the admission in evidence of inadmissible hearsay affords no basis for reversal where the out-of-court declarant later testifies at trial and is available for cross-examination. State v. Caldwell, S.C., 322 S.E.2d 662 (1984); State v. Huggins, 275 S.C. 229, 269 S.E.2d 334 (1980).

We note also Dr. Sims testified at trial that he recognized Saturday morning upon examining Latreva her condition "was just shocking" and that it was not "any real diagnostic thing [for him] to say something terrible was happening."

The admission, then, of Dr. Sims's hearsay statement provides no basis for us to upset the judgment below and grant a new trial.

B.

Dr. Ross questions the ruling by the trial judge allowing Clark's medical expert, Dr. Ralph Sheldon Bell, to testify, over objection, in response to a hypothetical question that, according to Dr. Ross, assumed a fact not proven.

Dr. Bell, who is a pediatric physician from Long Island, New York, and a Clinical Professor of Pediatrics at Stoneybrook University, was asked to assume, among other things, that a hypothetical child on the third day of her illness had a rash on her legs, arms, and chest. Dr. Ross objected to the hypothetical question on the ground that the record contained no evidence that on the third day of her illness Latreva had a rash on her legs.

The evidence in the record at the time the hypothetical question was asked, however, suggests the presence of a rash on Latreva's legs on the third day of her illness. Before Dr. Bell was asked to assume certain material facts, Dr. Horn testified without objection that, when he took Latreva's history, the grandmother related to him that "the child began having a rash" on Tuesday evening, the second day of her sickness, and that the grandmother "first noticed it on the legs."

Although Clark did not specifically prove Latreva had a rash on her legs on the third day of her illness, that fact was certainly inferable from and well within the range of the evidence then in the record. The trial judge committed no error, therefore, in allowing Dr. Bell to give his opinion in response to the hypothetical question. Wright v. Graniteville Co., Vaucluse Division, 266 S.C. 88, 221 S.E.2d 777 (1976).

C.

Dr. Collings and Dr. Ross both contend that the trial judge improperly allowed Dr. Sims, in response to a hypothetical question from Clark's counsel, Mr. Mullinax, to testify to what he himself would do under the circumstances. Only Dr. Collings, however, is in a position to argue the point. Dr. Ross neither objected to the admission of the testimony nor moved to strike it. Shockley v. Cox Circus Co., 204 S.C. 353, 29 S.E.2d 491 (1944).

As we noted before, Dr. Sims is the pediatrician to whom Latreva was referred for treatment on the day she died. He has practiced in Anderson County for thirty-two years and has treated "probably a hundred" cases of Rocky Mountain Spotted Fever. During Dr. Sims's direct examination, he was given a hypothetical situation based upon certain facts said to constitute Latreva's condition when seen by Dr. Collings in the emergency room on Friday evening. Mr. Mullinax then asked:

Q. [G]iven the hypothetical situation ..., would it be your opinion that a reasonable, medical practitioner would have treated that patient based on those symptoms?

....

THE WITNESS: [Dr. Sims] He's asking me an average person. I can tell him what I do, but I can't tell him what an average doctor would do.

THE COURT: I'm going to permit Dr. Sims to say what he would do and explain why he would do it, but I may strike his testimony.

....

A. I would treat with terramycin ....

Q. All right, based on that hypothetical, you would treat with terramycin?

A. Yes, sir.

....

Q. Well, why would you treat, what are you suspecting?

A. I'd be suspecting Rocky Mountain Spotted Fever ....

The trial judge refused to strike Dr. Sims's response to counsel's question even though he recognized that what Dr. Sims himself would have done under the circumstances posed by the hypothetical question would not be relevant. See King v. Williams, 276 S.C. 478, 279 S.E.2d 618 (1981); Welch v. Whitaker, supra. The trial judge interpreted...