Frey v. Barnes Hosp.

• Decision Date: 04 February 1986
• Docket Number: No. 48996,48996
• Citation: 706 S.W.2d 51
• Parties: Laurel FREY, Plaintiff-Appellant, v. BARNES HOSPITAL, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 51

706 S.W.2d 51

Laurel FREY, Plaintiff-Appellant, v.BARNES HOSPITAL, Defendant-Respondent.

No. 48996.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 4, 1986.

Motion for Rehearing and/or

Transfer Denied March 11, 1986.

James F. Koester, St. Louis, for plaintiff-appellant.

Steven Sanders, St. Louis, for defendant-respondent.

PUDLOWSKI, Judge.

Laurel Frey, appellant, brought this action against Barnes Hospital, respondent, for the death of his spouse from alleged medical malpractice.The central issue at trial was whether the use of the anesthetic Halothane during Mrs. Frey's surgery was proper under the circumstances of this case.Appellant now appeals from the jury's verdict in favor of respondent and the trial court's denial of his motion for a new trial.We affirm.

Mrs. Frey was admitted to Barnes Hospital on March 18, 1981, for bilateral stripping and high ligation of varicose veins of the legs.Before surgery she underwent a battery of pre-operative tests.Dr. Walter Ballinger, Mrs. Frey's attending surgeon, advised her of the risks of surgery and the use of anesthesia.He advised her that the possibility of death or paralysis, although miniscule, was always present when an anesthetic was administered.On March 19, 1981, after Mrs. Frey signed a consent form for the administration of the appropriate anesthetic, Dr. Ballinger performed the operation.Eighteen days after the operation on April 6, 1981, Mrs. Frey died of hepatitis and other complications.Michael Downing, a registered nurse attending the Barnes Hospital School of Anesthesia, administered the anesthetic.Before and during the surgery, Downing was under the supervision of Nancy Kinker, a certified registered nurse anesthetist and clinical instructor at the school.

During pre-trial discovery, appellant's sole expert witness, Dr. Richard Gardner, an orthopedic surgeon, was deposed on December 29, 1982, at his office in Florida.At the deposition, respondent's counsel questioned Dr. Gardner on his knowledge of anesthesia and about his equipment for the administration of anesthesia.Appellant's counsel instructed Dr. Gardner not to answer certain questions and not to permit respondent's counsel to view his anesthesia equipment.As a consequence, respondent filed a motion to bar Dr. Gardner's testimony or to compel him to testify as requested.The trial court heard the motion and ruled that appellant's counsel acted improperly and compelled Dr. Gardner to answer the questions and to permit respondent's counsel to view his anesthesia equipment.The trial court stated, however, if respondent requestioned Dr. Gardner, it would have to pay appellant's counsel's travel expenses to Fort Myers, Florida, where Dr. Gardner resided.

On April 5, 1983, respondent filed a motion to compel the production of Dr. Gardner as custodian of his medical records in order to discover the accuracy of his deposition testimony that he had performed hundreds of surgeries of all types.In its motion, respondent included pages from a deposition transcript of Dr. Gardner's testimony from another case, Randall Dennis v. St. Elizabeth's Medical Center, et al., which was then pending in Madison County, Illinois.¹ In the Dennis deposition, Dr. Gardner testified that he had not used inhalation anesthesia since moving to Florida in 1976.The trial court sustained respondent's motion but again upon the provision that respondent pay for appellant's counsel's travel expenses.

On May 7, 1984, respondent presented to the trial judge its motion in limine to bar the testimony of Dr. Gardner concerning the choice and use of anesthesia.The motion recited portions of the Dennis deposition which indicated inconsistencies in Dr. Gardner's testimony in the two depositions.The trial court, in camera, overruled respondent's motion.After that ruling the trial judge then discussed with the attorneys the admissibility of the Dennis deposition.What transpired in camera is discussed more specifically later in the opinion but for now the court overruled appellant's objection and permitted the use of the Dennis deposition by respondent.

At trial, the principal part of appellant's case was the deposition testimony of Dr. Gardner which was read by appellant's counsel to the jury.On "cross-examination" and without objection, respondent's counsel read portions of Dr. Gardner's depositions from both the instant case and the Dennis case.

From Dr. Gardner's deposition in the case at bar, respondent's counsel read the following excerpts to the jury:

Now since you've come to Florida here, you say you still give anesthesia?Yes, sir.Your nurse anesthetist doesn't always give it?No, she gives it, but I supervise it.Okay.Then I need to clarify my question.You personally, do you personally administer anesthesia here in Florida?Oh, yes, all the time.What kind do you personally administer?All kinds.Any general?Yes.What kind of general do you personally administer?All kinds of general.Fluothane?Fluothane, Halothane, Enfluorane, epidurals, intravenouses, muscle relaxers.

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In what percentage of your work here in Florida do you use Fluothane or Halothane?It's not a large percentage.Most orthopedics is done under a block epidural or Pentothal.Can you give me a percentage, 10 percent of your cases, or 20 percent, or 2 percent; what's your best estimate?It's not as much as we use Enfluorane.What is your best estimate as to the percentage of cases that you use Fluothane or Halothane?I have no idea.(Emphasis added).

Respondent's counsel then read the following excerpts from Dr. Gardner's deposition in the Dennis case.

You wouldn't do anything here that would require general anesthesia?Oh, yes, we use general anesthesia all the time, not inhalational, but intravenous.No respiratory anesthesia?No.Would you ever?We use Epidural, spinal, but no inhalation anesthesia.So you don't have an anesthesiologist or anything like that?If we need one, we'll call one in.You don't have one in your employ?Not at the present time?Have you ever here at the Surgi-Center?We had people with that training working here, yes.Who are they?They were from a service.Some of them also had training in anesthesia.Do you remember any of their names?I gave the anesthesia in every instance.

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When is the last time that you performed surgery under general anesthesia?I'm talking about the inhaling type.Well, that would be when I was in Massachusetts.How long ago? 1975, just before I came to Florida, routinely performed inhalation anesthesia.

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You had general anesthesia inhalant equipment here in the hospital?Yes.But have you--But have never used it in the seven years you have been here in Florida?Not that I am aware of, no. (Emphasis added).

Respondent's counsel also read excerpts from Dr. Gardner's deposition in the present case alone.These excerpts included statements by Dr. Gardner that he had not served on the staff of any hospital in Florida since he moved there in 1976.Dr. Gardner explained that at every hospital where he applied for staff privileges, he withdrew his application out of the belief that "redneck" doctors from "the mountains" conspired to keep him out of the hospitals in the area where he lived.

After all the evidence, the jury returned its verdict in favor of respondent.On appeal, appellant raises two issues.First, he contends the trial court erred in admitting Dr. Gardner's Dennis deposition without establishing its identity, authenticity, and genuineness.Second, appellant argues the trial court erred in permitting respondent's counsel to read portions of Dr. Gardner's Dennis deposition because it was a deposition from an entirely different cause in a different state.

Appellant first alleges the trial court erred in admitting Dr. Gardner's Dennis deposition.We disagree.In this case, the Dennis deposition does not fail for want of identity, authenticity, or genuineness under either Missouri or Illinois law.The Dennis deposition was a discovery deposition taken pursuant to Illinois Supreme Court Rule 202.As such, the Dennis deposition was not filed with the trial court in Madison County, Illinois, and, therefore, not identified by the court clerk.Illinois Supreme Court Rule 207(b), however, provides that a deposition "requires no further proof of authenticity" than the transcribing officer's certification on the deposition that the deponent was duly sworn and that the deposition is a true record of the deponent's testimony.

In Missouri, Rule 57.07 governs the use of depositions in court proceedings.Before a party may use a deposition, the party must first prove the facts necessary to authorize its use.The necessary proof may be established by "the certificate of the officer taking the deposition or by any competent evidence."Rule 57.07(b).The officer's certification must state that the witness was duly sworn by him and that the transcript is a true record of the testimony given by the witness.Rule 57.03(g)(1).Moreover, if the officer taking the deposition is a notary public, his certification accompanied by his seal of office constitutes sufficient evidence of authentication.RSMo§ 492.370(1978).

In the instant case, respondent filed the Dennis deposition with the trial court.With the deposition, respondent submitted an affidavit of the court reporter/notary public who attended and transcribed Dr. Gardner's testimony.In this affidavit, the court reporter certified that the Dennis deposition was a true and accurate copy of Dr. Gardner's testimony which was taken under oath.Moreover, the court reporter also certified on the transcript itself that Dr. Gardner was duly sworn by him and that the deposition was a true record of Dr. Gardner's testimony.Finally, the court reporter's certification was accompanied by his seal of office as a notary public.We conclude that under the law of both...