Godbee v. Dimick

• Decision Date: 11 September 2006
• Citation: 213 S.W.3d 865
• Parties: Theresa GODBEE v. Robert M. DIMICK, M.D.
• Court: Tennessee Court of Appeals

213 S.W.3d 865

Theresa GODBEE v.Robert M. DIMICK, M.D.

Court of Appeals of Tennessee, at Nashville.

May 23, 2006 Session.

September 11, 2006.

Permission to Appeal Denied by Supreme Court January 29, 2007.

Joe Bednarz, Sr., Karen M. Weimar, Nashville, Tennessee; Steven R. Walker, Memphis, Tennessee, for the appellant, Theresa Godbee.

Michael F. Jameson, Renee Levay Stewart, Nashville, Tennessee, for the appellee, Robert M. Dimick, M.D.

OPINION

WILLIAM B. CAIN, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S., and FRANK G. CLEMENT, JR., J., joined.

Patient filed a medical malpractice claim against an orthopedic surgeon for his alleged negligence in her diagnosis and spinal surgery.After a three week trial, the jury rendered a verdict in favor of the physician.The patient appealed, claiming that she was entitled to a new trial because the trial court erred with regard to several evidentiary rulings, its communications with the jurors, its jury instructions and verdict form, and its decision to permit the jury to examine medical articles used in cross-examination.We have determined that the judgment must be reversed and the case remanded for a new trial.

On October 11, 1994, Ms. Theresa Godbee saw her family physician, Dr. Ben Shelton, complaining of back pain.Over the course of three visits, he prescribed Ms. Godbee anti-inflammatories, an injection of Depo-Medrol, oral steroid pills and bed rest.Due to her continued pain, Dr. Shelton referred Ms. Godbee to Dr. Robert Dimick, an orthopedic surgeon.On November 1, 1994, Ms. Godbee saw Dr. Dimick, complaining of back pain and pain in her right leg which had recently spread to her left leg.

Dr. Dimick treated Ms. Godbee's back pain for over a month with no improvement using non-surgical methods.Dr. Dimick thereafter scheduled Ms. Godbee for a partial laminectomy on December 6, 1994, in order to alleviate her left and central disc herniations.Dr. Dimick alleged that he independently reviewed the lumbar spine MRI performed by Dr. Michael Metzman on November 1, 1994, and that he determined that there was no indication of spinal stenosis, a condition described as an especially narrow spinal canal.

During the surgery on December 6, 1994, Dr. Dimick entered from Ms. Godbee's asymptomatic left side in order to remove the left and central disc herniations.However after surgery, Ms. Godbee's condition did not improve.On December 6, 1994, Dr. Dimick ordered another lumbar spine MRI which according to Plaintiff' expert physician, revealed stenosis of the spinal canal and compression of the thecal sac.Dr. Dimick asserted that the presence of Gelfoam, a sponge-like material used by surgeons to control bleeding, caused a post-operative mis-diagnosis of spinal stenosis.

On December 14, 1994, Dr. Dimick performed a bilateral laminectomy on Ms. Godbee.However after that surgery, Ms. Godbee was diagnosed with arachnoiditis, a hyper-inflammation of the nerve roots, which she claims was caused by the failure of Dr. Dimick to take special precaution when performing spinal surgery on a patient with spinal stenosis.Dr. Dimick claimed that Ms. Godbee's arachnoiditis pre-dated her surgeries and was caused by her massive pre-surgical disc herniations.

Ms. Godbee underwent a spinal fusion surgery by Drs. Schoettle and Berklacich five months later.On December 6, 1995, Ms. Godbee filed a medical malpractice action against Dr. Dimick claiming that he was negligent in failing to recognize Ms. Godbee's spinal stenosis, in performing inappropriate and inadequate surgery and that his negligence caused injury to Plaintiff including the condition known as arachnoiditis.Ms. Godbee's complaint also named Dr. Metzman however, an agreed order was entered on March 12, 1996, granting summary judgment in favor of Dr. Metzman and dismissing all claims against him.On February 22, 2000, Ms. Godbee entered an order of voluntary non-suit and dismissal.

On February 21, 2001, Ms. Godbee filed a new complaint alleging that Dr. Dimick failed to properly evaluate and assess Ms. Godbee's medical condition, to take appropriate actions in order to safely operate on a patient with spinal stenosis in order to avoid nerve damage and that Dr. Dimick's negligence was the cause of her injuries.The case was tried before a jury from January 10, 2005, until January 26, 2005.On February 8, 2005, the jury rendered a verdict in favor of Dr. Dimick.On March 9, 2005, Ms. Godbee filed a motion for a new trial however, the trial court denied the motion on May 6, 2005.Ms. Godbee appealed.

On appeal, Ms. Godbee contends that the trial court erred in (1) engaging in ex parte communications with the jury; (2) allowing Defendant to submit two medical articles into evidence; (3) refusing to allow Dr. Schlachter to rebut Dr. Dimick's testimony; (4) giving inapplicable, erroneous and incomplete instructions to the jury and constructing the jury verdict form in an erroneous and incomplete manner; (5) finding that the jury's verdict was not contrary to the weight of the evidence; (6) admitting an open opinion letter from Dr. Landman; and (7) excluding portions of Dr. Schoettle's video deposition.Defendant asserts in his cross-appeal that Plaintiff's claim should be barred under the doctrine of estoppel and unclean hands.

I.EX PARTECOMMUNICATIONS WITH JURY

The first issue raised by Ms. Godbee on appeal concerns the trial court's ex parte communications with the jury.During deliberations, the jury sent four pages of questions to the trial court which the court answered ex parte.Specifically, Ms. Godbee argues that two questions in particular which were answered by the court constituted reversible error:

Q.Could we replace the word "cause" in question # 2 with "contributing factor"?¹

A.No.

Q.[C]an [Dr. Dimick] be partially negligent due to Dr. Metzman's involvement?

A.No.

Ms. Godbee asserts that the jury's questions plainly show that the jury was confused as to whether they could find Dr. Dimick liable if they believed that Dr. Metzman's reading of the MRI also contributed to Ms. Godbee's injuries.Based on the court's responses to the jury's questions, Ms. Godbee claims that the jury may have incorrectly believed that if Dr. Metzman was partially liable for Plaintiff's injuries, then they could not find Dr. Dimick liable.

Generally, a trial court's communications with a jury in a civil case does not require reversal per se.Guy v. Vieth,754 S.W.2d 601, 605(Tenn.1988).

The recent case of Life From The Sea, Inc. v. Levy,502 So.2d 473, 474(Fla.App.1987), summarized the current status of the law.

The overwhelming weight of authority, which we choose to follow, is that where a trial judge's ex parte communication with a jury in a civil case does not affect any substantial rights of the parties, the error will be deemed harmless.A complaining party thus must demonstrate specific prejudice, which might include a showing of an inability of the reviewing court to determine from the record whether the action was actually harmless.Loatman v. Patillo,401 A.2d 91(Del.1979);Beck v. Wessel,90 S.D. 107, 237 N.W.2d 905(1976)(affirming a judgment where the jury has asked the trial judge if he could give them certain information and he responded "no").See alsoNelson v. Hydraulic Press Mfg. Co.,84 Ill.App.3d 41, 39 Ill.Dec. 422, 404 N.E.2d 1013(App.2d Dist.1980)(moving party must demonstrate specific prejudice before a jury verdict will be set aside as a result of an unauthorized communication with the jury);Fordyce v. Hansen,198 Mont. 344, 646 P.2d 519(1982)(the ultimate inquiry is whether the irregularity affected the substantial right of the party).

The best position seems to us to be that a trial judge's ex parte communication with a jury in a civil case does not require reversal per se, but reversal is required where a timely complaining party shows specific prejudice or where, owing to the nature of the ex parte communication, the reviewing court is unable to determine whether the action was actually harmless.SeeAndrews v. O'Hearn,387 N.W.2d 716(N.D.1986);Hernandez v. Charles E. Virgin, M.D., P.A.,505 So.2d 1369(Fla.App.1987);Guzzi v. Jersey Central Power & Light Co.,36 N.J.Super. 255, 115 A.2d 629(1955).

Guy,754 S.W.2d at 604-605;see alsoSpencer v. A-1 Crane Serv., Inc.,880 S.W.2d 938, 941(Tenn.1994);Davis v. Hall,920 S.W.2d 213, 216(Tenn.Ct.App.1995).

While communications between the trial court and the jury are always of concern on appeal, there is nothing in this case that establishes prejudice under Guy and we find no reversible error.

II.SUBMISSION OF MEDICAL ARTICLES

Ms. Godbee next contends that the trial court erred in admitting into evidence two medical articles supplied by Defendant and allowing the jury access to the articles during deliberations.During cross-examination of Plaintiff's expert, Dr. Kenneth Smith, Defendant questioned Dr. Smith about an article which he had co-authored.Despite Plaintiff's objection, the trial court allowed Dr. Smith's article to be passed to the jury and later entered as an exhibit along with a second medical article authored by Dr. Smith's colleagues, Drs. McCulloch and Young.Plaintiff objected to the admission of the articles as exhibits to be given to the jury.

MR. BEDNARZ: Judge, on these articles, I assume they are for identification only?They should not be an exhibit that can go back to the jury because they —

THE COURT: I believe that we just passed it to the jury because Dr. Smith identified his —

MS. STEWART: Actually both.

THE COURT: Yeah, and the other two were his colleagues, I believe.He called them extremely reliable.

MR. BEDNARZ: You honor, it is my understanding that literature that is used to cross-examine a witness cannot be made an exhibit and go back to the jury room.

MR. JAMESON: Unless identified as reliable according to 611.

THE COURT: This is ...