Durham v. Vinson

Decision Date13 September 2004
Docket NumberNo. 25872.,25872.
Citation602 S.E.2d 760,360 S.C. 639
CourtSouth Carolina Supreme Court
PartiesNellie DURHAM, Respondent-Appellant, v. David VINSON, Jr., M.D. and Upstate General Surgery, P.A., Appellants-Respondents.

Alexander M. Sanders, Jr., of Charleston; O. Doyle Martin, Jack H. Tedards, Jr., Russell D. Ghent, and Seann A. Gray, all of Leatherwood Walker Todd & Mann, P.C., of Greenville, for Appellants-Respondents.

Chad Alan McGowan, of McGowan & Hood, of Rock Hill; F. Patrick Hubbard, of Columbia; and Joseph G. Wright, III, of Wright Law Offices, of Anderson, for Respondent-Appellant.

Chief Justice TOAL:

We are asked to rule on several issues regarding alleged errors made during a medical malpractice trial. We affirm in part and reverse in part.


Respondent-Appellant, Nellie Durham (Durham), was referred to Appellant-Respondent, Dr. David Vinson (Dr. Vinson), for a surgical evaluation after being diagnosed with acid reflux and a hiatal hernia. On October 26, 1996, Dr. Vinson attempted to repair the hernia by performing a laparoscopic Nissen fundoplication (LNF) — an advanced form of laparoscopic surgery. During the LNF, Dr. Vinson did not "take down" the short gastric vessels, which would have prevented the repair from being too tight.

Initially, Durham appeared to respond well to the surgery, but then she began to have trouble swallowing and began to vomit. An esophagram, performed on October 28, revealed that food particles were dispersed throughout the esophagus and that the esophagus was not completely clearing the barium used in the esophagram. As a result, Dr. Vinson performed an esophageal gastroduodenoscopy (EGD) on Durham the next day. During the EGD, Durham's gag reflex was suppressed. Whether Durham aspirated1 during this procedure or during the repair surgery conducted the next day became an issue at trial. It was clear, however, that Durham aspirated while under the care of Dr. Vinson, and that, most likely, this aspiration occurred during the EGD. On October 30, Dr. Vinson performed a repair LNF on Durham. During this surgery, Dr. Vinson took down the short gastric vessels. Dr. Vinson also instructed Diane Hardy, a Certified Registered Nurse Anesthetist, to advance a dilator down Durham's esophagus during the surgery, even though Hardy protested three times that it was too tight. Hardy followed Dr. Vinson's orders and, as a result, Durham's esophagus was perforated. When the perforation occurred, Dr. Vinson switched from performing the procedure laparoscopically to performing an open procedure in order to repair the perforation.

After the repair LNF surgery, Durham could not breathe without mechanical assistance and was transferred to the Critical Care Unit (CCU) at Oconee Hospital. Durham's family did not learn Durham had aspirated and her esophagus had been perforated until Durham was later moved to Greenville Memorial Hospital. Dr. Vinson informed the family that everything had gone well and that she was only in CCU as a precaution.

While Durham was in CCU, her family requested that Dr. Vinson consult a pulmonologist. However, he did not do so. Durham's family also requested that she be moved to Greenville Memorial Hospital, a better-equipped facility, but Dr. Vinson advised against the transfer because he believed that she could be properly cared for at Oconee Hospital. Finally, after two days, the family obtained the transfer order from a nurse. Durham entered Greenville Memorial Hospital and remained there for over two months, with her first month being spent in the CCU.

As a result of Dr. Vinson's treatment, Durham developed adult respiratory distress syndrome and later, due to the complications stemming from her aspiration, developed pulmonary fibrosis. At present, Durham can only walk for very short distances and requires supplemental oxygen twenty-four hours a day.

Durham brought a medical malpractice action against Dr. Vinson. After the liability phase of the bifurcated trial,2 the jury found Dr. Vinson was liable to Durham for $2,250,000 in actual damages, and the jury found his conduct to be willful, wanton, or in reckless disregard of Durham's rights. The trial then proceeded to the punitive damages phase. The jury awarded Durham $15,000,000 in punitive damages.

Following post-trial motions, the trial court found the award did not violate Dr. Vinson's due process rights, but remitted the award to $8,000,000 on the basis the award was merely liberal.

Dr. Vinson appeals the trial court decision, raising the following issues:

I. Did the trial court err by allowing testimony during the liability phase regarding Dr. Vinson's hospital privileging file?
II. Did the trial court err by giving the jury a charge during the liability phase that contained an incorrect discussion of the standard of care in a medical malpractice action?
III. Did the trial court err by allowing, in the punitive damages phase, the admission of evidence that Dr. Vinson prescribed valium to Durham's daughter?

Dr. Vinson argues Durham's counsel should not have been allowed to question him about his failure to produce only a portion of his hospital privileging file and then further prejudice him by mentioning this failure in closing argument. We agree but find the error harmless. The hospital privileging file contains information related to a doctor's attempt to acquire certain privileges at the hospital, such as the privilege to perform an LNF.

S.C.Code Ann. § 40-71-20 (2001) provides, in part, as follows:

All proceedings of and all data and information acquired by the committee referred to in Section 40-71-10 [3] in the exercise of its duties are confidential ... These proceedings and documents are not subject to discovery, subpoena, or introduction into evidence in any civil action ... Information, documents, or records which are otherwise available from original sources are not immune from discovery or use in a civil action merely because they were presented during the committee proceedings nor shall any complainant or witness before the committee be prevented from testifying in a civil action as to matters of which he has knowledge apart from the committee proceedings....

The overriding public policy of the confidentiality statute is to encourage health care professionals to monitor the competency and professional conduct of their peers to safeguard and improve the quality of patient care. McGee v. Bruce Hosp. Sys., 312 S.C. 58, 61, 439 S.E.2d 257, 259 (1993). The underlying purpose behind the confidentiality statute is not to facilitate the prosecution of civil actions, but to promote complete candor and open discussion among participants in the peer review process. Id. In McGee, we further noted:

The policy of encouraging full candor in peer review proceedings is advanced only if all documents considered by the committee... during the peer review or credentialing process are protected. Committee members and those providing information to the committee must be able to operate without fear of reprisal. Similarly, it is essential that doctors seeking hospital privileges disclose all pertinent information to the committee. Physicians who fear that information provided in an application might someday be used against them by a third party will be reluctant to fully detail matters that the committee should consider.

Id. at 61-62, 439 S.E.2d at 259-260 (quoting Cruger v. Love, 599 So.2d 111 (Fla.1992)).

We concluded, however, that the outcome of the decision-making process is not protected from discovery. Therefore, a plaintiff is entitled to know the clinical privileges either granted or denied by the hospital. Id. at 63, 439 S.E.2d at 260-261.

During Durham's direct examination of Dr. Vinson, Dr. Vinson was asked about Durham's medical records and the fact that they are confidential. He was also asked about the fact that Durham complied with his request that she disclose her medical records. Dr. Vinson was then asked: "Correspondingly we requested that you provide us with the application and supporting documents." Dr. Vinson's counsel objected and a discussion ensued outside the hearing of the jury.

Dr. Vinson argued that the privileging file was confidential under McGee and section 40-71-20 and that Durham was trying to create the impression that he had something to hide.

The trial court found Dr. Vinson could be asked about the privileging file but that the questions should be limited to whether Dr. Vinson authorized his attorneys to disclose the results of the privileging file.4

The testimony then continued with Durham's counsel asking Dr. Vinson whether he was aware that his privileging file was confidential and could not be disclosed without his consent. Dr. Vinson responded yes to the questions. Then, the following exchange occurred:

Q: And we on behalf of Mrs. Durham requested that you fully disclose the results of your [privileging] file ... however you only allowed the disclosure of part of that file, is that correct?
Mr. Gray: Your Honor —
The Court: Yes sir.
Mr. Gray: Again I think that's not a correct statement.
The Court: ... I'm going to overrule your objection ...
Q: On behalf of ... Durham we requested your entire — that you fully disclose the results of your ... [privileging] file but you only authorized a portion of that file to be produced, is that correct?
A: Correct.

On cross-examination by his counsel, Dr. Vinson stated there were no results of the privileging process that were adverse to him.

During closing argument, Durham's counsel stated:

Let me mention about privileges. It is true that Dr. Vinson was privileged by Oconee Memorial Hospital to perform this surgery. It is also true that Dr. Vinson was privileged to perform surgical critical care. Dr. Vinson submitted certain information to Oconee Memorial Hospital.

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    ...error is most easily seen in counsel's request that the jury punish Ford for harming others beyond Branham. SeeDurham v. Vinson, 360 S.C. 639, 653, 602 S.E.2d 760, 767 (2004) (reversing an award of punitive damages because the trial court allowed the jury to "punish" the defendant for a "ba......
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