Davis v. Killu

• Decision Date: 02 February 2006
• Docket Number: No. 20040301.,20040301.
• Citation: 2006 ND 32,710 N.W.2d 118
• Parties: Anthony L. DAVIS, Plaintiff, Appellant, and Cross-Appellee v. Keith KILLU, M.D., Philip Hershberger, M.D., Triad Hospitals, Inc., Quorum Health Services, Inc., QHG of Minot, Inc., UniMed Medical Center-St. Joseph's Hospital, and Minot Health Services, Inc., dba Medical Arts Clinic, Defendants and Appellees Philip Hershberger, M.D., Defendant, Appellee, and Cross-Appellant.
• Court: North Dakota Supreme Court

Page 118

710 N.W.2d 118

2006 ND 32

Anthony L. DAVIS, Plaintiff, Appellant, and Cross-Appellee v. Keith KILLU, M.D., Philip Hershberger, M.D., Triad Hospitals, Inc., Quorum Health Services, Inc., QHG of Minot, Inc., UniMed Medical Center-St. Joseph's Hospital, and Minot Health Services, Inc., dba Medical Arts Clinic, Defendants and Appellees

Philip Hershberger, M.D., Defendant, Appellee, and Cross-Appellant.

No. 20040301.

Supreme Court of North Dakota.

February 2, 2006.

Wade G. Enget (argued), Schulte & Enget, Stanley, N.D., and Tom P. Slorby (appeared), Slorby Law Office, Minot, for plaintiff, appellant, and cross-appellee.

John C. Kapsner, Vogel Law Firm, Bismarck, for defendants and appellees.

Tracy Vigness Kolb (argued) and Lance D. Schreiner (appeared), Zuger Kirmis & Smith, Bismarck, for defendant, appellee, and cross-appellant.

CROTHERS, Justice.

[¶ 1] Anthony L. Davis appealed from a judgment entered on a jury verdict dismissing his medical malpractice action against Dr. Keith Killu, Dr. Philip Hershberger, and several corporate health care providers. Hershberger cross-appealed from the judgment. We conclude the trial court's evidentiary rulings challenged by Davis do not constitute reversible error, rendering it unnecessary for us to address the issue raised by Hershberger on the cross-appeal. We affirm.

I

[¶ 2] In May 2000 Davis complained to his urologist at the Medical Arts Clinic in Minot about pain in his right ankle and the urologist referred Davis to Killu, an internal medicine physician. After conducting tests on Davis at the UniMed Medical Center on May 24, 2000, Killu diagnosed Davis as having cellulitis, with possible osteomyelitis, and admitted him to the hospital for intravenous antibiotic treatment. Despite the treatment, Davis's left ankle was becoming more swollen and sore, and Killu sought a consultation with Hershberger, an orthopedic surgeon. Hershberger saw Davis on June 6, 2000, and recommended incision and drainage, debridement, and exploration of the bone of the ankle. Hershberger also ordered continued intravenous antibiotics for six weeks and told Davis he may require additional surgeries and would require long-term intravenous antibiotics. Davis was discharged from the hospital on June 30, 2000, with orders to continue intravenous antibiotic treatment.

[¶ 3] Davis returned for an appointment with Killu on July 11, 2000. Killu believed Davis's condition had improved, continued him on the same antibiotics for another six weeks, and told him to follow up with the orthopedic clinic. On July 28, 2000, Davis returned to the orthopedic clinic and began treatment with another orthopedic surgeon, Dr. Ravindra Joshi. On August 7, 2000, Joshi sent a sample from a blister that had formed on the bottom of Davis's right foot to the North Dakota Health Department for fungal analysis, and the test came back positive. Davis was transferred to the Mayo Clinic, where his leg was amputated below the right knee on August 15, 2000. It was later determined that Davis's condition was caused by blastomycosis, a rare fungal infection of the bone which does not respond to antibiotic treatment.

[¶ 4] In February 2002 Davis brought this medical malpractice action against Killu, Hershberger, and various associated corporate health care providers. Davis alleged Killu and Hershberger were negligent in failing to timely diagnose and treat the fungal infection in his right ankle, which resulted in the amputation of his right leg. In August 2004 a nine-person jury returned a verdict in favor of the defendants, finding that neither Killu nor Hershberger was at fault in the care and treatment they provided Davis.

II

[¶ 5] On appeal, Davis challenges evidentiary rulings made by the trial court during the course of the five-day jury trial.

[¶ 6] A trial court has broad discretion on evidentiary matters, and we will not overturn its admission or exclusion of evidence on appeal unless that discretion has been abused. Forster v. West Dakota Veterinary Clinic, 2004 ND 207, ¶ 40, 689 N.W.2d 366. A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process. Schaefer v. Souris River Telecomms. Coop., 2000 ND 187, ¶ 10, 618 N.W.2d 175. Even if the trial court commits an error on an evidentiary matter, N.D.R.Civ. P. 61 provides that "[n]o error in either the admission or the exclusion of evidence ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice." See also N.D.R.Ev. 103(a) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected"). We apply this deferential standard of review to provide trial courts with greater control over the admissibility of evidence. Schaefer, at ¶ 10.

A

[¶ 7] Davis argues the trial court erred in refusing to allow his medical expert, Dr. Henry Masur, a board certified infectious disease specialist, to testify about opinions contained in Davis's Mayo Clinic medical records which had been redacted from those records for purposes of the trial.

[¶ 8] In Patterson v. Hutchens, 529 N.W.2d 561, 564-65 (N.D.1995), this Court held that the trial court did not abuse its discretion in refusing to admit into evidence the plaintiff's medical records containing the opinion of a physician who was not a witness at trial and was not available for cross-examination. In this case, no Mayo Clinic physicians testified at trial. Based on Hutchens, the parties agreed, and the trial court ruled, that opinions of the physicians would be redacted from Davis's Mayo Clinic medical records before those records would be received in evidence. Hershberger also brought a motion in limine to preclude Davis's expert witness, Masur, from testifying about the medical opinions of Mayo Clinic physicians which had been redacted from the records. The trial court and Davis's counsel had the following discussion during the hearing on the motion:

THE COURT: I'm assuming though that your [sic] going to agree, Mr. Slorby, that your expert cannot testify from redact—or to redacted portion of the Mayo Clinic records though, right?

MR. SLORBY: No, it's not in evidence. But if he still testifies to what happens with infectious diseases when they go too long in the bone and what happens.

THE COURT: But he cannot, again, he cannot testify to any redacted portion of the Mayo Clinic records.

MR. SLORBY: Right. But he can also testify that he has no professional dispute with the treatment at Mayo Clinic. That's not testifying to redacted the [sic] parts.

The trial court granted the motion in limine. Davis made no offer of proof of the specific testimony he sought to elicit from Masur that was barred by the trial court's ruling. Moreover, the record does not contain an unaltered copy of Davis's Mayo Clinic medical records before portions of it were redacted.

[¶ 9] Davis contends the trial court's ruling is "plain error" in violation of N.D.R.Ev. 703, which provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

According to Davis, Masur should have been allowed to testify to the redacted hearsay of the Mayo Clinic physicians from his medical records because, although the redacted portions were not admissible in evidence, the Mayo Clinic physicians' opinions constituted facts or data reasonably relied upon by Masur in forming his expert opinion.

[¶ 10] This Court has recognized that an expert witness "should be permitted to describe otherwise inadmissible hearsay relied upon in order to give the basis for the opinion." State v. Messner, 1998 ND 151, ¶ 26, 583 N.W.2d 109; see also In re D.V.A., 2004 ND 57, ¶ 9, 676 N.W.2d 776; Myer v. Rygg, 2001 ND 123, ¶¶ 19-20, 630 N.W.2d 62; Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶¶ 14-17, 559 N.W.2d 204; Staiger v. Gaarder, 258 N.W.2d 641, 648 (N.D.1977). However, we have not held that N.D.R.Ev. 703 allows an expert witness free reign to act as a mouthpiece for inadmissible hearsay evidence. Courts have addressed the apparent contradiction between evidentiary rules allowing an expert to base an opinion upon facts or data not admissible in evidence and the inadmissibility of hearsay reports. In Brennan v. Reinhart Inst. Foods, 211 F.3d 449, 451 (8th Cir.2000), the Eighth Circuit Court of Appeals, construing Fed.R.Evid. 703 upon which N.D.R.Ev. 703 is based, see N.D.R.Ev. 703, Explanatory Note, reconciled the issue "by allowing an expert to testify about facts and data outside of the record for the limited purpose of exposing the factual basis of the expert's opinion," and encouraged trial courts to "instruct juries as to the limited applicability of the hearsay evidence by informing the jury that the hearsay is inadmissible as substantive evidence to prove the truth of the fact asserted."

[¶ 11] Numerous other courts have explained that an expert's testimony may not be used merely as a conduit to place otherwise inadmissible evidence before a jury, because an expert who simply relates inadmissible hearsay to the factfinder is not acting in the capacity of an expert and is not being of any assistance to the factfinder. United States v. Stone, 222 F.R.D. 334, 339, 341 (E.D.Tenn.2004); see also Gong v. Hirsch, 913 F.2d 1269, 1272-73 (7th Cir.1990); Department of Corr. v. Williams, 549 So.2d 1071, 1072 (Fla.App. 1989); Bruflat v. Mister Guy, Inc., 933 S.W.2d 829, 833 (Mo.App.1996), overruled on other grounds by Hampton v. Big Boy...