Emerson v. Bentwood

• Citation: 146 N.H. 251,769 A.2d 403
• Decision Date: 09 April 2001
• Docket Number: No. 98-673.,98-673.
• Parties: MARIA EMERSON v. JOHN BENTWOOD, M.D.
• Court: Supreme Court of New Hampshire

146 N.H. 251

769 A.2d 403

MARIA EMERSON v. JOHN BENTWOOD, M.D.

No. 98-673.

Supreme Court of New Hampshire.

April 9, 2001.

Edward B. Mulligan, IV, of Gilford, by brief and orally, for the plaintiff.

Orr and Reno, P.A., of Concord (William L. Chapman and Gayle M. Braley on the brief, and Mr. Chapman orally), for the defendant.

BARRY, J., superior court justice, specially assigned under RSA 490:3.

The plaintiff, Maria Emerson, appeals the Superior Court's (Fitzgerald, J.) grant of the motion of the defendant, John Bentwood, M.D., for a directed verdict in her medical negligence case. We reverse and remand.

The plaintiff suffered from intermittent pelvic pain from approximately 1977 until March 2, 1994. The defendant is a surgeon who was brought in as a consultant by the plaintiff's physician, Dr. Stephen D. Elgert. The defendant reviewed reports of Dr. Elgert's examination of the plaintiff, laboratory data, a prior pelvic ultrasound, and hospital records including those of the plaintiff's previous hospitalizations at Speare Memorial.

The defendant's initial diagnosis after examining the plaintiff on February 28, 1994, was that the plaintiff had resolving pelvic inflammatory disease, a uterine polyp, and probable adhesions related to former surgery. The defendant testified that he recommended either a continuation of antibiotic therapy or an exploration and probable hysterectomy following a CT-scan. The plaintiff, however, testified that she was not given an option with respect to the hysterectomy.

Subsequently, a CT-scan was performed on March 1, 1994, which showed a uterine enlargement. On March 2, 1994, the defendant performed a total hysterectomy following exploratory surgery. He removed the plaintiff's uterus, fallopian tubes, and ovaries.

At trial, the plaintiff presented the videotaped deposition testimony of her expert witness, Dr. Henry Klapholz. Dr. Klapholz testified that the defendant deviated from the standard of care when he performed the hysterectomy. He maintained that far less invasive and risky ways existed to make a diagnosis than the removal of the plaintiff's organs.

At the close of the plaintiff's case, the court granted the defendant's motion for a directed verdict. The trial judge gave two reasons for granting the defendant's motion: (1) Dr. Klapholz's enunciation of the standard of care sprang from a flawed premise; and (2) even assuming there was a deviation from the standard of care, Dr. Klapholz's testimony failed to establish causation. The judge noted that he had found Dr. Klapholz's testimony so confusing and inconsistent in a prior case that the trier of fact could not determine the applicable standard of care. He added that "[w]hen the court hears such confused testimony, the obligation to act as gatekeeper to insure a minimum level of competence for the trier of fact is heightened."

The plaintiff moved for reconsideration, urging that it was "unfair to the plaintiff for the court to have based any part of its opinion on a previous ruling involving a completely different case with different facts and different injuries." In denying the motion, the court noted "that it did not `rely' on prior experience with plaintiff's expert in reaching its conclusion, but only cited to that experience to buttress the compelling need to insure that expert testimony presented to the jury is competent and reliable in accordance with the rule of State v. Cressey, 137 N.H. 402 (1993)." We accept the trial court's explanation that it only referenced its prior experience with the same expert witness to emphasize its general concerns about the reliability of expert testimony.

On appeal, the plaintiff argues that the trial court erred in granting the defendant's motion because: (1) the plaintiff's expert testified that the defendant deviated from the applicable standard of care; (2) his testimony "clearly established the causal link between the defendant's negligence and the plaintiff's wrongful hysterectomy"; and (3) the trial court's conclusion that the expert's testimony was unreliable was an abuse of discretion.

A motion for directed verdict "should be granted only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand." Thompson v. The H.W.G. Group, 139 N.H. 698, 699 (1995) (quotation omitted). The trial court may not weigh the evidence or judge the credibility of witnesses. Arthur v. Holy Rosary Credit Union, 139 N.H. 463, 465 (1995). The trial court should deny the motion for a directed verdict unless "the court can affirmatively determine that the plaintiff is not entitled to any relief on the evidence presented." 5 R. WIEBUSCH, NEW HAMPSHIRE PRACTICE, CIVIL PRACTICE AND PROCEDURE § 48.15, at 333 (1998).

RSA 507-E:2 defines the plaintiff's burden of proof in an action for medical negligence. The statute requires the plaintiff to prove by competent expert testimony:

(a) The standard of reasonable professional practice in the medical care provider's profession or specialty thereof, if any, at the time the medical care in question was rendered; and (b) That the medical care provider failed to act in accordance with such standard; and

(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

RSA 507-E:2, I (1997). In addition, "an expert's testimony must rise to a threshold level of reliability to be admissible under New Hampshire Rule of Evidence 702." State v. Cressey, 137 N.H. at 405.

The trial court found that the plaintiff failed to produce "competent expert evidence from which a rational trier of fact could conclude that the claimed deviation from the standard of care was, in fact, the legal cause of the claimed damages." Dr. Klapholz, however, offered the following testimony regarding the standard of care:

Q. Finally, Doctor, do you have an opinion based upon reasonable medical probability whether performing this total hysterectomy with her symptoms by Dr. Bentwood in 1994 was a deviation from the standard of medical care?

A. I do.

Q. And what is that?

A. I think under the circumstances that occurred here with the data that was available, I think this is a deviation from the standard of care in this time, 1996, at the time this was performed.

Q. And the reason for that is what?

A. Well, the reason is simple. There are other — there are other techniques which are available now, commonly available, that can make a diagnosis or can attempt to make a diagnosis that are far less invasive, far less risky and don't require the removal of organs. And it may turn out that you find something that requires further surgery. But the standard of care in 1996, and it's not that long ago, is to make a diagnosis first before you attempt to remove an organ.

Q. Is that the same standard of care that existed throughout the nineties, Doctor?

A. Yes. That's the last ten years, I think it's safe to say.

In the preceding dialogue, Dr. Klapholz rendered an opinion as to whether or not the defendant deviated from the standard of care. He further posited that "[o]ffering [the plaintiff] a hysterectomy without any additional options ... in and of itself [was] a deviation from the standard [of care]."

[1] Dr. Klapholz explained that because far less invasive means existed to diagnose the plaintiff's condition, they should have been utilized first. He also emphasized the importance of a firm diagnosis before undertaking treatment. The defendant admitted at trial that "part of the reason for performing this hysterectomy was to arrive at a more definitive diagnosis." We therefore conclude that Dr. Klapholz provided an adequate foundation for his opinion that the defendant deviated from the standard of care by performing a hysterectomy, given the plaintiff's symptoms, when other less invasive means of diagnosis were available.

We next turn to the question of causation. Dr. Klapholz testified that the defendant incorrectly diagnosed the plaintiff's condition as pelvic imflammatory disease. Further, Dr. Klapholz testified that had the defendant employed alternative diagnostic procedures, such procedures would have ruled out pelvic inflammatory disease. Moreover, he saw no evidence that a hysterectomy was required for the treatment of what was in the plaintiff's record at the time and that he considered a hysterectomy premature.

The trial judge, however, concluded his order for a directed verdict by stating that the fact that Dr. Klapholz was unable to identify the probable source of the plaintiff's pain,...