Engelbert v. Flanders, WD

• Decision Date: 06 March 1984
• Docket Number: No. WD,WD
• Citation: Engelbert v. Flanders, 670 S.W.2d 19 (Mo. App. 1984)
• Parties: Donna ENGELBERT, Bo Jensen Engelbert b/n/f Gabriel Perdue Engelbert b/n/f F. Jack Engelbert and Donna Dee Engelbert, Co-Executors of Estate, Appellants, v. Virgil E. FLANDERS, M.D., Briarcliff Medical Associates, Inc., Respondents. 33805.
• Court: Missouri Court of Appeals

Page 19

670 S.W.2d 19

Donna ENGELBERT, Bo Jensen Engelbert b/n/f Gabriel Perdue Engelbert b/n/f F. Jack Engelbert and Donna Dee Engelbert, Co-Executors of Estate, Appellants, v. Virgil E. FLANDERS, M.D., Briarcliff Medical Associates Inc., Respondents.

No. WD 33805.

Missouri Court of Appeals Western District.

March 6, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 1, 1984.

Bart L. Strother, Morris & Foust, Roger M. Phillips, Jackson, Dillard, Brouillette, Weisenfels, Phillips & Wood, Kansas City, for appellants.

Robert W. Freeman, Ken D. Rogers, Freeman, Fredrick, Bennett & Rogers, P.C., Springfield, for respondents.

Before MANFORD, P.J., and CLARK and KENNEDY, JJ.

CLARK, Judge.

In this medical malpractice suit, defendants had a verdict from the jury and plaintiffs-claimants appeal. Affirmed.

The points raised by appellants are limited to claims of error in rulings by the trial court on objections to closing arguments. The facts of the case therefore need only be stated briefly to place the closing arguments in the perspective of their context at the time the questioned rulings by the trial judge were made.

Plaintiffs' decedent, Steven Engelbert, noted a suspicious body abnormality in August, 1977, and sought advice from defendant Dr. Flanders. Engelbert was assured by Flanders there was no cause for concern but Engelbert was instructed to return if the problem persisted. In April, 1978, Engelbert did return and was examined by defendant Dr. Fakhoury, an associate of Flanders. A diagnosis of cancer was made and Engelbert was referred to a urologist who surgically removed the affected organ. The urologist also recommended removal of lymph nodes and a course of chemotherapy, but Engelbert declined. Instead, he went to Mexico and participated in an unorthodox treatment program of diet and enemas.

After some six weeks of unorthodox treatment, Engelbert detected a mass in his abdomen and returned to the urologist. It was then discovered that the cancer had spread to involve the liver. Treatment was undertaken by the urologist, but Engelbert eventually succumbed to the disease in June, 1979. The basis for the wrongful death action by Engelbert's survivors, appellants here, was the failure of defendant physicians to diagnose and treat the condition when Engelbert first consulted them in August before the spread of the disease.

The first point of asserted error relates to evidence given by defendants' expert witness, Dr. Skinner, and the entitlement of plaintiffs' counsel to comment on inconsistencies in the opinion evidence he gave. A significant issue in the case was whether Engelbert's cancer had involved other body organs, particularly the liver, by April, 1978 when the surgery was performed or whether the metastasis took place during the six weeks of unorthodox treatment following that date. The thrust of the defense was that a 90% curability rate yet was available to save Engelbert in April, 1978 had he consented to the orthodox treatment of removal of the lymph nodes and chemotherapy as recommended. On the plaintiffs' side, it was asserted that the April date was too late and that only a proper diagnosis the previous August could have afforded a prospective recovery by orthodox treatment.

At trial, Dr. Skinner testified without equivocation that in his opinion, the cancer had not spread to Engelbert's abdomen in April, 1978. On cross-examination, plaintiffs' attorney asked Skinner if a question had been asked and an answer given by Skinner in a deposition, proceeding then to read the question and answer. After a defense objection was overruled, Skinner replied, "Well, I just would like to reiterate that fact." The substance of the deposition testimony was that the matter of progress of the cancer was speculative, but it was conceivable there was liver involvement in April. There was no further exchange by counsel and the witness on the subject.

In plaintiffs' closing argument, counsel attempted to discredit Skinner's testimony as to the date when Engelbert's cancer spread by noting inconsistency between the in court and the deposition statements. An objection to that course of argument was sustained. Plaintiffs' point contends the argument should have been permitted because Skinner had been impeached by the deposition statement. The issue is whether the cross-examination described above accomplished the introduction in evidence of a prior inconsistent statement by Skinner which would then be appropriate for comment in closing argument. We conclude on authority long established, that it did not.

The procedure for impeaching a non-party witness by showing a prior statement inconsistent with the witness's trial testimony is set out in Aboussie v. McBroom, 421 S.W.2d 805, 807 (Mo.App.1967). The foundation to be laid requires that the witness first be asked whether he made the prior statement, quoting it and the precise circumstances under which it was made. If the witness admits making the statement, he stands impeached. If the witness denies or equivocates about having made the statement, the examiner may then introduce evidence showing the witness did make the prior inconsistent statement.

In this case, an attempt was made to lay the foundation for impeachment of Skinner's testimony as to Engelbert's condition in April, 1978. The question and answer were read from the deposition and Skinner was asked whether he had made the prior statement. The witness, however, neither admitted nor denied the statement, giving instead the enigmatic response quoted above.

Careful scrutiny of the transcript suggests Dr. Skinner's observation, "I just would like to reiterate that...