Gooding v. St. Francis Xavier Hosp., 2285

• Decision Date: 03 November 1995
• Docket Number: No. 2285,2285
• Parties: Jim Curtis GOODING, Appellant, v. ST. FRANCIS XAVIER HOSPITAL and Judith Hood, M.D., Respondents.
• Court: South Carolina Court of Appeals

Page 328

454 S.E.2d 328

317 S.C. 320

Jim Curtis GOODING, Appellant, v. ST. FRANCIS XAVIER HOSPITAL and Judith Hood, M.D., Respondents.

No. 2285.

Court of Appeals of South Carolina.

Submitted Oct. 4, 1994.

Decided Jan. 9, 1995.

Rehearing Denied Feb. 10, 1995.

Certiorari Granted Nov. 3, 1995.

James H. Moss and H. Fred Kuhn, Jr., both of Moss & Kuhn, Beaufort, for appellant.

M. Dawes Cooke, Jr., of Barnwell, Whaley, Patterson & Helms, and Elliott T. Halio, of Halio & Halio, Charleston, for respondents.

CONNOR, Judge:

Jim Curtis Gooding brought this medical malpractice action against St. Francis Xavier Hospital and Dr. Judith Hood, anesthesiologist, after his two front teeth were chipped during surgery at the hospital. The jury returned a verdict for the defense. Gooding appeals, arguing the court erred in excluding his expert witness. We reverse and remand for a new trial.

I. Exclusion of Expert

At trial Gooding maintained Dr. Hood and St. Francis caused his injuries by improperly intubating or extubating him. He called Ralph Sorensen, an Emergency Room Technician (EMT), to testify about the proper way to intubate a patient. Hood and St. Francis objected to Sorensen's qualifications . They specifically argued, "that if the plaintiff is going to introduce expert testimony, it has to be a board certified anesthesiologist, or at least an anesthesiologist." The trial judge sustained the objection, stating:

THE COURT: The Court is of the opinion that the necessary requirement for expert testimony, and particularly in malpractice cases, is of such a nature that the witness must have special expertise by way of training to compare with that of the physician who is defending the charges.

In this case, even though the witness is somewhat trained in the mechanics of this medical assistance, he is not a medical doctor; he does not have the medical expertise required to testify under the circumstances of this case....

Thereafter the jury returned a verdict for Hood and St. Francis.

In medical malpractice actions, the plaintiff must establish by expert testimony both the required standard of care and the defendant's failure to conform to the standard, unless the subject matter lies within the ambit of common knowledge and experience so that no special learning is needed to evaluate the defendant's conduct. Pederson v. Gould, 288 S.C. 141, 341 S.E.2d 633 (1986); Jernigan v. King, --- S.C. ----, 440 S.E.2d 379 (Ct.App.1993); Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (Ct.App.1984). Expert testimony is also generally required to establish proximate cause in a medical malpractice case. Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990). Here, however, Gooding and the respondents are in agreement on the standard of care regarding intubation. Thus, the question presented here is not whether the chipping of Gooding's front teeth is within the standard of care for intubation procedures. Rather, the narrow issue on appeal is whether Gooding should have been allowed to present Sorensen, an intubation expert, to testify about proper intubation procedures in an effort to show circumstantially that, because teeth are easily chipped during intubation, his teeth were most probably chipped by Dr. Hood during this procedure. All of the medical care providers denied having chipped the teeth and denied having any knowledge as to when or how they were chipped. Therefore, Gooding was left with only circumstantial evidence to demonstrate to the jury when and by whom they were most likely chipped.

A trial court's ruling on the admission of evidence will not be disturbed on appeal absent a clear abuse of discretion. Hoeffner v. The Citadel, --- S.C. ----, 429 S.E.2d 190 (1993). We have held the following standard should apply in determining the competency of an expert:

To be competent as an expert, a witness must have acquired by reason of study or experience or both such knowledge and skill in a business, profession, or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony. (Emphasis ours).

Botehlo v. Bycura, 282 S.C. 578, 586, 320 S.E.2d 59, 64 (Ct.App.1984). Furthermore, the fact that an expert is not a specialist in the particular field of medicine involved affects the weight of the expert's testimony, but affords no basis for completely rejecting it. Bonaparte v. Floyd, 291 S.C. 427, 354 S.E.2d 40 (Ct.App.1987). It is not even necessary that a witness with medical training and experience be regularly licensed to practice medicine to qualify as an expert. State v. Merriman, 34 S.C. 16, 12 S.E. 619 (1891). An expert is not limited to any class of persons acting professionally. The test is a relative one that is dependent on the particular witness's reference to the subject. Memorial Hospital of Alamance County, Inc. v. Brown, 50 N.C.App. 526, 274 S.E.2d 277 (1981), cited with approval in Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (Ct.App.1984).

Moreover, witnesses other than doctors may testify against doctors so long as they have some expertise on the matter in dispute. See Daniels v. Bernard, 270 S.C. 51, 240 S.E.2d 518 (1978) (chiropractor held competent in a personal injury action to interpret x-rays); Howle v. PYA Monarch, Inc., 288 S.C. 586, 344 S.E.2d 157 (Ct.App.1986) (psychologist allowed to give expert opinion testimony concerning diagnosis, prognosis, and causation of plaintiff's mental and emotional condition); see also Avret v. McCormick, 246 Ga. 401, 271 S.E.2d 832 (1980), cited with approval in Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59, 64 (Ct.App.1984), (nurse held competent to testify against a physician in a medical malpractice action as to the standard of care for keeping a needle used to draw blood sterile). Conversely, our Supreme Court has held that doctors may testify against medical support personnel in appropriate cases. In McMillan v. Durant, --- S.C. ----, ----, 439 S.E.2d 829, 832 (1993), a neurosurgeon was "amply qualified" to render an opinion in the field of nursing where his credentials included having "professional interaction with a multitude of various nursing staffs" and having taught nursing courses.

The facts concerning the expert's qualifications here are analogous to those in State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990). In that case, the Supreme Court held the trial court erred in refusing to qualify a defense expert in blood spatter patterns and their interpretation. The expert had been a forensic science investigator for eight years. She had attended approximately one hundred crime scenes. She had also assisted pathologists with one thousand or more autopsies by collecting evidence related to the body. She had attended a one week seminar on the characteristics of blood stain evidence and had never testified in court. In reversing the trial judge, the Supreme Court emphasized it had in prior opinions "made it clear that, generally, defects in the amount and quality of education or experience go to the weight to be accorded the expert's testimony and not its admissibility." Id. at 256, 391 S.E.2d at 554. The scope of the trial judge's discretion as to admissibility of expert witness testimony is the same whether the context is criminal or civil. McMillan v. Durant, --- S.C. ----, 439 S.E.2d 829 (1993).

The respondents and the dissent point out that Sorensen testified he did not know the standard of care for anesthesiologists. He testified as follows:

Q. You do not intubate patients under operating room conditions, do you?

A. I have.

Q. You have. How many times have you done that?

A. Several times.

Q. Several times?

A. ... in a hospital. Most of my intubations are in the field and much more difficult.

* * * * * *

Q. And the standards that you are talking about--are going to talk about--are the standards by the American Heart Association?

A. They are standards adopted by all the associations. That is the governing body.

Q. Do you know what the standard of care is for anesthesiologists?

A. No, I do not.

Q. You have never testified ... as an expert in anesthesiology?

A. No, I have not.

Of course, it is not Gooding's claim that Sorensen was qualified to testify to the standard of care in the broad specialty of anesthesiology. Rather, his testimony would have addressed only the limited area of intubation, about which he is well qualified to testify.

Sorensen had received 130-140 hours of training as an EMT as well as 480 hours of training as a paramedic. He also received 45 hours of education and training in instructors' school. He was licensed as a paramedic and certified as an instructor and provider of Advanced Cardiac Life Support (ACLS). He had personally intubated over a hundred patients, both in and out of the hospital. As an instructor teaching ACLS under the auspices of the American Heart Association, Sorensen taught and tested doctors on intubation procedures. He testified methods of intubation are the same in the medical profession. Moreover, both Hood and the hospital agree that breaking teeth is not within the standard of care of an anesthesiologist who is intubating a patient.

An abuse of discretion occurs when a judge's ruling has no evidentiary support or the judge makes an error of law. Williams v. Van Volkenburg, --- S.C. ----, 440 S.E.2d 408 (Ct.App.1994). Here the trial court's refusal to allow Sorensen to testify amounted to an abuse of discretion because he based his ruling on an error of law (that an expert witness must have the same special expertise as the defending doctor in order to be qualified). Sorensen had expertise concerning intubation and should have been allowed to testify.

II. Prejudice

St. Francis further argues that because Sorensen's testimony was irrelevant, Gooding was not prejudiced by its exclusion. The hospital acknowledges in its brief that "[t]his case turned upon a determination of how and when [Gooding's] teeth broke" and that the ...