Hagar v. Shull
| Decision Date | 29 March 2017 |
| Docket Number | No. CV–15–380,CV–15–380 |
| Citation | 518 S.W.3d 683 |
| Parties | Derek Scott HAGAR, Administrator of the Estate of Darren Scott Hagar, Deceased, and on Behalf of the Wrongful–Death Beneficiaries of Darren Scott Hagar, Appellant v. Robert T. SHULL, M.D., Appellee |
| Court | Arkansas Court of Appeals |
Appellate Solutions, PLLC, d/b/a/ Riordan Law Firm, by: Deborah Truby Riordan ; and Trammell Piazza Law Firm, PLLC, by: Melody H. Piazza and M. Chad Trammell, for appellant.
Wright, Lindsey & Jennings LLP, by: David P. Glover, Gary D. Marts, Jr., and Carson Tucker, for appellees.
In this medical-malpractice/wrongful-death case, appellant Derek Scott Hagar, as the administrator of the estate of his late father, Darren Scott Hagar, and as representative of his father's wrongful-death beneficiaries, appeals from a jury verdict in favor of appellee, Dr. Robert Shull. For reversal, appellant argues that the circuit court erred in certain evidentiary rulings, in restricting his cross-examination of Dr. Shull, and in instructing the jury. We affirm.
Darren Scott Hagar (Scott) died on January 15, 2010, at age forty-two. He suffered from morbid obesity
, severe obstructive sleep apnea, and a host of other medical problems and had been treated for many years by his primary-care physician, Dr. Trent Pierce. In December 2009, Scott visited Dr. Pierce for a checkup and underwent a chest x-ray. The results were unremarkable.
Less than a month later, on Wednesday, January 13, 2010, Scott presented to Dr. Pierce with flu-like symptoms. Dr. Pierce prescribed Tamiflu
, cough medicine, Cipro (an antibiotic), and the pain medicine Darvocet. Scott's condition improved somewhat, but he was still coughing and began to experience pain on his right side. According to his wife, he had also coughed up blood. At approximately 4:00 a.m. on Friday, January 15, 2010, Scott's mother drove him to the Crittenden County Hospital emergency room.
Upon arriving at the ER, Scott complained of severe abdominal pain and coughing with recent flu. The triage nurse noted, among other things, that Scott was alert and oriented; that his breathing was not labored; and that his temperature and blood pressure were normal. However, Scott also registered a below-normal pulse-oximeter
reading and elevated respiration and pulse rates.
Scott was next seen by Registered Nurse Geraldine Massey, who recorded that he had pain in his right ribs and a cough
that produced blood (which she did not personally witness). Shortly thereafter, Scott was examined by the ER physician on call, appellee Dr. Robert Shull. Dr. Shull noted that Scott complained of a cough ; of chest and abdominal pain worsened by a deep breath; and of being dissatisfied with the Darvocet that Dr. Pierce had prescribed for pain. The doctor also listened to Scott's breathing and detected a sound called "rhonchi," which was consistent with bronchitis, but did not detect a "rales" sound, which would have been consistent with pneumonia. Knowing that Scott was already being treated with an antibiotic, Dr. Shull diagnosed him with muscle strain from coughing and prescribed a more potent painkiller, Lortab. Scott's mother insisted on a chest x-ray, which was taken within a short time and transmitted electronically to the hospital's computer system.
According to Dr. Shull, he viewed the x-ray on the ER's computer terminal and determined that Scott had atelectasis—a collapse of small airways in the lungs that is common in larger patients—but not pneumonia
. The doctor conveyed that information to Nurse Massey, who told Scott that the x-ray was fine and that he could leave. Scott was discharged at approximately 6:00 a.m., after which he dropped his Lortab prescription off at the drug store and returned home.
Later that morning, hospital radiologist Dr. Mark Mills read Scott's chest x-ray
. Dr. Mills observed an "enlarged" cardiac silhouette and evidence "suggesting pneumonia or atelectasis." He did not contact Scott's family or Dr. Shull, who had gone off duty.
Meanwhile, Scott's family tried to telephone him throughout the day but could not reach him. Late that afternoon, Scott's mother went to his house and saw him through a window, sitting motionless. She called 911, and paramedics transported Scott back to Crittenden County Regional Hospital between 6:00 p.m. and 7:00 p.m. There, Scott was pronounced dead by Dr. Shull, who had just come back on duty.
Concerned that he had missed something, Dr. Shull reviewed Scott's chest x-ray
and read the radiologist's report. Upon doing so, he was satisfied that his diagnosis was correct and that Scott would not have benefited from being admitted to the hospital.
A few days later, an autopsy was performed by Associate Medical Examiner, Dr. Daniel Dye. Dr. Dye concluded that Scott died of cardiomyopathy
(heart enlargement) due to obesity, with acute bronchopneumonia. The doctor also performed a toxicology analysis, which revealed that small amounts of several medications were present in Scott's system, including acetaminophen ; dextromethorphan (cough suppressant); Darvocet; hydrocodone (Lortab ); oxycodone (Percocet ); and promethazine (Phenergan ). Dr. Dye stated that these drugs "were all in the therapeutic or subtherapeutic range and were all administered (prescribed) by a physician" and did not directly contribute to Scott's death.
On December 14, 2010, Scott's family sued Dr. Shull and Crittenden County Hospital for medical negligence and wrongful death. The complaint alleged that Dr. Shull failed to properly assess, examine, and diagnose Scott during the emergency-room visit and should have admitted him to the hospital for treatment of pneumonia
. The hospital and its insurers settled for $400,000 and were dismissed with prejudice. The case then went to trial against Dr. Shull.
At trial, appellant's medical expert, Dr. Henry Smoak, testified that Dr. Shull breached the standard of care when he failed to admit Scott to the hospital for treatment of pneumonia
. Dr. Smoak based his opinion on Scott's presentation in the ER; his medical history; and a comparison between the "abnormal" chest x-ray taken on the morning of January 15, 2010, and the unremarkable x-ray taken a few weeks earlier in December 2009. For the defense, Dr. Darren Flamik testified that the standard of care would not have required Dr. Shull to admit Scott to the hospital. Dr. Flamik further testified that Scott's death was not due to pneumonia but to his enlarged heart and other medical problems, plus the "mixed drug intoxication" from the many medications in his system. Other defense experts agreed with Dr. Flamik's testimony. Following a lengthy trial, the jury returned a unanimous verdict in favor of Dr. Shull.
Appellant argues first that the circuit court erred in excluding certain impeachment evidence and in restricting his cross-examination of Dr. Shull. Our standards of review are well established. We will not reverse a circuit court's exclusion of evidence absent a manifest abuse of discretion. Poff v. Elkins , 2014 Ark. App. 663, 449 S.W.3d 315. Also, the scope and extent of cross-examination lie within the circuit court's discretion. Herrington v. Ford Motor Co., Inc. , 2010 Ark. App. 407, 376 S.W.3d 476. We will not reverse the decision to limit cross-examination absent a clear abuse of that discretion. Bd. of Comm'rs of Little Rock Mun. Water Works v. Rollins , 57 Ark. App. 241, 945 S.W.2d 384 (1997).
Appellant's arguments involve the two chest x-rays
performed on Scott near the time of his death: the January 15, 2010 x-ray taken the morning that he visited the ER; and the December 2009 x-ray taken during his check up with Dr. Pierce.
Dr. Shull testified that, before he discharged Scott from the ER on January 15, 2010, he looked at the chest x-ray
that had been taken just minutes earlier and concluded that Scott did not have pneumonia. Nurse Massey corroborated the doctor's testimony that he viewed the x-ray. Appellant's own expert, Dr. Henry Smoak, also testified that he believed that Dr. Shull had viewed the x-ray. Nevertheless, appellant proffered the testimony of the hospital's IT specialist, Shawn Dowdy, in an effort to show that Dr. Shull had not looked at the x-ray before releasing Scott from the hospital. The circuit court refused to admit Dowdy's testimony. We affirm the court's ruling.
The proffer shows that Dowdy would have testified that the hospital's IT system generates a user log for the emergency-room computer. According to Dowdy, Dr. Shull's name did not appear on the user log as viewing Scott's x-ray on the morning of January 15, 2010; rather, the log showed that the account of a nurse practitioner, Janet Pearson, was used to access Scott's x-ray. Still, Dowdy stated that the log "doesn't actually tell us who looked at the x-ray." He explained that if Ms. Pearson left her shift without logging off the computer, anyone who sat down at the computer could open an x-ray, and the record would show Pearson as the user. He also said that he had heard of doctors using other practitioners' accounts to view the computer.1 Dowdy stated that if Dr. Shull testified that he looked at Scott's x-ray on the morning of January 15, he would have no reason to disagree with him.
An appellant has the burden of demonstrating reversible error. Watkins v. Paragould Light & Water Comm'n , 2016 Ark. App. 432, 504 S.W.3d 606. Here, it is questionable whether Dowdy's proffered testimony and user log significantly contradicted Dr. Shull's statement that he viewed the x-ray on the morning of January 15. Dowdy said that the log "doesn't actually tell us who looked at the x-ray," and he expressed no disagreement with Dr. Shull's claim that he had looked at the x-ray on the morning of January 15. Consequently, we are not persuaded that the circuit court abused its discretion in...
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