Deyo v. Kinley

• Decision Date: 19 May 1989
• Docket Number: No. 88-025,88-025
• Citation: 152 Vt. 196,565 A.2d 1286
• Court: Vermont Supreme Court
• Parties: Thomas E. DEYO and Janice P. Deyo v. Donald L. KINLEY, M.D.

Page 1286

565 A.2d 1286

152 Vt. 196

Thomas E. DEYO and Janice P. Deyo v. Donald L. KINLEY, M.D.

No. 88-025.

Supreme Court of Vermont.

May 19, 1989.

Motion for Reargument Denied July 25, 1989.

Kiel & Boylan, Springfield, for plaintiffs-appellees.

Allan R. Keyes and Ellen W. Burgess of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellant.

Before ALLEN, C.J., DOOLEY and MORSE, JJ., and MARTIN, Supr. J., Specially Assigned.

DOOLEY, Justice.

Thomas and Janice Deyo, husband and wife, brought an action for medical malpractice against Donald L. Kinley, M.D. in August, 1985, in Windham Superior Court. Plaintiffs, appellees here, alleged negligent diagnosis and treatment of Mr. Deyo's spinal condition. Trial by jury resulted in judgment for plaintiffs: $550,343.45 awarded to Thomas; $125,000.00 awarded to Janice. After denial of his motions for a new trial or, in the alternative, for remittitur, defendant filed this appeal. We affirm.

Defendant raises four issues on appeal:

1. Plaintiffs' counsel improperly asked defendant's expert witness whether he rendered opinions for insurance companies, thereby injecting insurance into the case;

2. Plaintiffs' counsel included in his closing argument to the jury a liability claim not supported by the medical evidence;

3. The trial judge failed to charge the jury that plaintiffs must introduce expert testimony to prove each element of medical malpractice; and

4. The trial judge failed to charge the jury that a physician is not required to be infallible and is not liable for an error in judgment or a bad outcome.

On each of the alleged errors, defendant seeks a new trial. After a discussion of the facts, we discuss the evidentiary issues followed by the jury charge issues. In reviewing defendant's claims, we examine the record in a light most favorable to the prevailing party. See Pooler v. Derby, 129 Vt. 362, 364, 278 A.2d 732, 734 (1971) (in case involving an appeal from final judgment this Court must view evidence in light most favorable to prevailing party).

Thomas Deyo first consulted Dr. Kinley in August or September, 1982, for complaints of hip pain. Defendant treated Deyo with ultrasound therapy and cortisone injections. On September 12, 1982, Deyo's pain was so severe he went to the Brattleboro Memorial Hospital emergency room. Later, defendant examined Deyo and found that he had pain down the right leg, weakness in the right thigh, and no reflex jerk of the right knee. Based on the examination, defendant made a preliminary diagnosis of a herniated disc between the third and fourth lumbar vertebrae of the spine. After consultation with a neurologist and a radiologist, defendant made the same final preoperative diagnosis.

On September 20, Deyo underwent surgery during which defendant performed a laminotomy of the affected vertebrae. ¹ After further testing, defendant performed a surgical exploration and repeat laminotomy of the same vertebrae on September 23. After the second surgery, Deyo sustained partial paralysis of both lower legs, partial incontinence of the bowel and bladder, and sexual impotence, a collection of symptoms known as "cauda equina syndrome."

In January 1986, Deyo consulted another physician, who found that his condition was worsening. This physician diagnosed Deyo as having spinal stenosis (narrowing of the spinal canal) and performed a lumbar laminectomy on March 25, 1986. ²

At trial, plaintiffs' medical experts testified that defendant misdiagnosed Deyo as suffering from a herniated disc and that the correct diagnosis was spinal stenosis. They further testified that the proper treatment for spinal stenosis is a laminectomy, and that if the laminectomy had been performed in 1982, Deyo would not have suffered from cauda equina syndrome. Defendant's expert witnesses testified that defendant's diagnosis was appropriate based on the clinical findings and test results, that defendant's treatment of Deyo did not deviate from the standard of care, and that even if a laminectomy had been performed in 1982, the outcome may have been the same.

Defendant argues that he is entitled to a new trial because he was prejudiced by the deliberate injection of insurance into the case by plaintiffs' counsel. The issue arose when plaintiffs' counsel was cross-examining one of defendant's expert witnesses. Counsel sought to show that the witness regularly worked for the defense in medical malpractice cases. Before plaintiffs' counsel got very far into this line of questioning, defendant's counsel objected and indicated that plaintiffs were about to inject insurance into the case. After some discussion, the court ruled that plaintiffs were not permitted to suggest that the defense was conducted by an insurance company, but went on to say that it would not exclude proper inquiry into other cases in which the witness may have appeared or offered opinions. Following this ruling, plaintiffs' counsel elicited from the witness that he frequently reviewed patients' records to determine whether there was malpractice and that this review was generally done for the physician against whom a claim of malpractice has been filed. Counsel then elicited that the witness did medical examinations very frequently (eight to ten times a week) for patients involved in litigation or workers' compensation claims and that those examinations were usually done on behalf of insurance companies. There was no objection to the insurance company question and answer and no further development of the issue. Defendant argues that the question and answer on insurance companies warrants reversal. Plaintiffs respond that the mention of insurance, to show the financial interest of the witness in his opinions, is a relevant and permissible line of inquiry.

First, we must address whether this issue is preserved for our review. Normally, failure to object below precludes review by this Court. V.R.E. 103(a)(1); In re Johnston, 145 Vt. 318, 321, 488 A.2d 750, 752 (1985). This Court has consistently held that where the aggrieved party fails to make a "specific objection, including a clear statement of the matter to which he objects and the grounds of the objection" at trial, the issue is not preserved for consideration by this Court on appeal. State v. Lettieri, 149 Vt. 340, 342, 543 A.2d 683, 685 (1988) (citations omitted). The purpose of requiring a timely objection is to bring the error to the attention of the trial court so that the court may have "an opportunity to rule." State v. Chambers, 144 Vt. 234, 242, 477 A.2d 110, 114, cert. denied, 469 U.S. 875, 105 S.Ct. 236, 83 L.Ed.2d 176 (1984).

Defendant objected properly to a line of questioning which may have revealed that the defense was funded by an insurance company. The ruling cured this potential error, and the witness did not disclose that he was retained by defendant's insurer. Defendant made no further objection to the line of questioning and specifically to the question about the witness's work for insurance companies. By his silence, defendant acquiesced in the admission of the testimony.

We recognize that even where an issue is not preserved, we can reverse in exceptional cases where there is plain error that affects substantial rights of the party. To find plain error, we have required a showing that the error is so egregious as to result in a "miscarriage of justice." State v. Ayers, 148 Vt. 421, 426, 535 A.2d 330, 333 (1987). Defendant argues correctly that the deliberate injection of insurance into a case in order to prejudice a jury and benefit a litigant is normally reversible error. Hardy v. Berisha, 144 Vt. 130, 135, 474 A.2d 93, 96 (1984). Plaintiffs assert, however, that the question and answer fall within an exception to that principle. See V.R.E. 411 (evidence of insurance against liability admissible to show "bias or prejudice of a witness"). We need not decide this question because any error here was not preserved and did not rise to plain error.

Defendant's second claim is that it was error for plaintiffs' counsel to include in his closing argument a liability claim unsupported by the medical evidence. During rebuttal argument, plaintiffs' counsel urged the jury to find that the absence of Deyo's right ankle jerk was an indication that the surgery performed by defendant was unsuccessful. ³ Following this argument, the court recessed. When court resumed, defendant's counsel objected to plaintiffs' rebuttal argument, claiming that there was no medical evidence to support it. The trial judge ruled that any error would be cured in his instruction to the jury that argument of counsel is not evidence. The court gave that instruction. Defendant made no further objection.

The objection to plaintiffs' argument came well after the argument. Although we normally require an immediate objection, State v. Curtis, 145 Vt. 552, 553, 494 A.2d 143, 144 (1985) ("Generally, the argument must be interrupted at the moment the claimed prejudicial argument is made."), we find that the objection in this case was sufficiently contemporaneous to allow us to review the claim of error. See Hardy v. Berisha, 144 Vt. at 134, 474 A.2d at 95 ("failure to object to counsel's argument until its completion does not waive the right to raise the objection on appeal"). As noted below, however, the failure of counsel to object immediately and counsel's apparent acceptance of the court's curative instruction does affect the obligation of the court in responding to the asserted error.

For purpose of analysis, we will assume that the remarks made by plaintiffs' counsel were improper although plaintiffs argue vigorously that they were simply drawing a supportable inference from the evidence. We emphasize our admonition in State v. Lapham, 135 Vt. 393, 407, 377 A.2d 249, 257 (1977), that:

Comments of counsel shall not be inflammatory, nor depart from the evidence.... The burden of proving prejudice is on the respondent. Whether an...