Greig v. Botros
| Decision Date | 21 May 2013 |
| Docket Number | No. 12-3066,12-3066 |
| Parties | TERRI GREIG, as Special Administrator of the Succession of Michael E. Greig, Deceased, and Terri Greig, Individually as Representative Heir at Law of Michael E. Greig, Deceased, Plaintiff-Appellant, v. MAGED S. BOTROS, M.D., Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
(D. Kan.)
ORDER AND JUDGMENT*Before BRISCOE, Chief Judge, KELLY and LUCERO, Circuit Judges.
Terri Greig brought this medical malpractice action against Dr. Maged Botros in the District of Kansas based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). The decedent Michael Greig, Terri Greig's husband, died from a ruptured aortic dissecting aneurysm, which occurs when the aorta tears. We exercise our jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
On June 19, 2006, at approximately 5:00 p.m., the decedent Michael Greig, who was then 36 years old, arrived at the emergency room of Via Christi Regional Medical Center-St. Francis campus ("St. Francis") in Wichita, Kansas, with complaints of chest pains. Michael Greig, a resident of Louisiana, was a pilot who had traveled to Wichita on business for aircraft maintenance. While lifting weights at a YMCA, Michael Greig experienced chest pains and was taken to St. Francis. At St. Francis, Dr. Maged Botros, an emergency room physician, examined Michael Greig. Michael Greig presented symptoms that included shortness of breath, diaphoresis (sweating), chest pain, and tightness in the middle of his chest radiating into his jaw. Michael Greig told Dr. Botros that he was lifting weights when the pain started and that he had consumed alcohol the night before. Dr. Botros testified that Michael Greig's symptoms were consistent with acute coronary syndrome and many non-cardiac conditions.
Dr. Botros examined Michael Greig's vitals, which were in the normal range. Dr. Botros also ordered various tests for Michael Greig, including electrocardiograms ("EKGs"), cardiac enzyme tests, and a chest x-ray. EKGs were completed on Michael Greig at approximately 5:10 p.m. and 6:00 p.m. Dr. Botros interpreted the first EKG as displaying abnormal P waves, but he did not observe a change from the first EKG to the second EKG. Three serial cardiac enzyme tests were ordered at 5:16 p.m., 7:13 p.m., and 1:05 a.m. The firstenzyme test came back with a result of 0.01, which Dr. Botros noted was low and would be expected with someone with acute coronary syndrome. The second enzyme test came back with a result of 0.05, which was still within the normal range, but Dr. Botros explained that the increase was "concerning." Aplt. App. Vol. III at 790. Michael Greig's chest x-ray came back normal. Dr. Botros testified that he would have expected to see an abnormal chest x-ray with a diagnosis for aortic dissection.
Dr. Botros did not order a cardiac consult, and he did not order a CT scan with contrast because he did not think that they were required at the time. A medical expert for Terri Greig testified that not ordering a CT scan with contrast, which looks for aortic dissection, was a violation of the standard of care. Dr. Botros and his medical experts testified that not ordering a CT scan with contrast was within the standard of care.
Dr. Botros suspected that Michael Greig was suffering from angina, which is related to coronary artery disease. Dr. Botros ordered that Michael Greig be admitted for observation overnight at the Clinical Decision Unit ("CDU") and that he have a stress thallium cardiac treadmill test at the hospital the following morning. Dr. Botros went off duty at midnight and had no further contact with Michael Greig.
At approximately 7:30 a.m. on June 20, 2006, Michael Greig was found slumped over and unresponsive in a chair in his hospital room. He was in theprocess of putting on his shoes for the cardiac stress test. The cause of death was determined to be a ruptured dissecting aortic aneurysm.
The case proceeded to trial, and the jury returned a verdict in favor of Dr. Botros. On November 2, 2011, Terri Greig filed a motion for a new trial. On March 5, 2012, the district court denied her motion for a new trial. Terri Greig appeals from the district court's denial of her motion for a new trial.
Terri Greig argues that the district court erred in denying her motion for a new trial. She argues that the district court erred in the following respects: issuing Instruction No. 14 to the jury; issuing a misleading supplemental instruction to the jury in response to a jury question; excluding key testimony on the basis of hearsay; prohibiting cross-examination of defense experts; striking some of the testimony of Terri Greig's expert economist; and issuing a "best judgment" instruction.
We review the district court's denial of a new trial for abuse of discretion. Meyer v. Christie, 634 F.3d 1152, 1160 (10th Cir. 2011). "A district court abuses its discretion when it bases its ruling on an erroneous view of the law," and "[a] new trial cannot be granted unless the error was prejudicial and affects the party's substantial rights." Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008).
As regards issues involving alleged instructional errors, "[a] 'district court's decision to give a particular jury instruction [is reviewed] for abuse of discretion; ultimately, however, we apply a de novo standard of review to determine the propriety of an individual jury instruction to which objection was made at time of trial.'" Reed v. Landstar Ligon, Inc., 314 F.3d 447, 454 (10th Cir. 2002) () (quoting Osteguin v. S. Pac. Transp. Co., 144 F.3d 1293, 1295 (10th Cir. 1998)). "'The instructions as a whole need not be flawless, but we must be satisfied that, upon hearing the instructions, the jury understood the issues to be resolved and its duty to resolve them.'" Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1237 (10th Cir. 2002) (quoting Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir. 1999)).
We review a "'district court's evidentiary decisions for abuse of discretion.'" Fischer v. Forestwood Co., 525 F.3d 972, 984 (10th Cir. 2008) (quoting Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1081 (10th Cir. 2006)). "'In reviewing [such a decision], [this court] will not disturb the determination absent a distinct showing it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment.'" Id. () (quoting Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th Cir. 2007)).
Jury Instruction No. 14 states the following:
Proof by a preponderance of the evidence of causation is necessary to a finding of fault. A defendant is "at fault" when he is negligent and that negligence causes or contributes to cause the event which brought about the injury for which the claim is made. A person may be negligent but unless that negligence causes or contributes to cause the injury, that person cannot be "at fault".
Terri Greig argues that Jury Instruction No. 14 was not based on Kansas pattern jury instructions ("PIK"). She also argues that the district court erred because Jury Instruction No. 14 was based on the PIK instructions for comparative fault when comparative fault was not at issue in the case.
Id. (quoting State v. Johnson, 874 P.2d 623, 630 (Kan. 1994)).
Terri Greig did not propose an alternate jury instruction for causation. Nor was the jury instruction an inaccurate statement of the law. Terri Greig argues that the phrase "caused or contributed to the event which brought about the injury for which the claim was made" in the jury instruction given was inappropriate under the facts of the case. Aplt. Br. at 19. As the district court noted in its order denying Terri Greig a new trial, "causation is a vital element of a medical malpractice action, which requires negligence (breach of a duty) and causation of a resulting injury." Aplt. App. Vol. II at 494.
In Kansas, three elements are required to establish a medical malpractice case:
(1) The physician owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the physician breached this duty or deviated from the applicable standard of care; and (3) the patient was injured and the injury proximately resulted from the physician's breach of the standard of care.
Esquivel v. Watters, 183 P.3d 847, 850 (Kan. 2008) (citing Nold v. Binyon, 31 P.3d 274, 285 (Kan. 2001)). "The plaintiff in a medical malpractice case bears the burden of showing not only the doctor's negligence, but that the negligence caused the plaintiff's injury." Id. (emphasis added) (alteration and quotation omitted). The district court here did not err in instructing the jury regarding causation.
Terri Greig further argues that the district court erred in answering thejury's question. The jury submitted the following question to the district court:
We are in need of clarification on Instruction #14. Does the wording indicate...
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