Hagedorn by Hagedorn v. Stormont-Vail Regional Medical Center, STORMONT-VAIL

• Decision Date: 21 February 1986
• Docket Number: STORMONT-VAIL,No. 57650,57650
• Citation: 715 P.2d 2,238 Kan. 691
• Parties: Jaymie L. HAGEDORN, by her father and next friend, James R. HAGEDORN, Appellant, v.REGIONAL MEDICAL CENTER, a/k/a Jane C. Stormont Hospital and Training School for Nurses; Joseph B. Carter, M.D.; Jimmie A. Gleason, M.D.; and Drs. Tappen, Gleason, Ransdell, Vandegarde & Robinson, P.A., a professional corporation, Appellees.
• Court: Kansas Supreme Court

Page 2

715 P.2d 2

238 Kan. 691

Jaymie L. HAGEDORN, by her father and next friend, James R HAGEDORN, Appellant, v. STORMONT-VAIL REGIONAL MEDICAL CENTER, a/k/a Jane C Stormont Hospital and Training School for Nurses; Joseph B Carter, M.D.; Jimmie A. Gleason, M.D.; and Drs. Tappen Gleason, Ransdell, Vandegarde & Robinson, P.A., a professional corporation, Appellees.

No. 57650.

Supreme Court of Kansas.

Feb. 21, 1986.

Syllabus by the Court

1. One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion.

2. Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.

3. The taking of pretrial depositions is part of the discovery process authorized by K.S.A. 60-226, and among the purposes to be served thereby is ascertaining what an adversary witness may know about matters in litigation and what his probable testimony will be, to the end that the element of surprise will be eliminated so far as possible.

4. Where a medical expert, the night before he was scheduled to testify made an unannounced visit to defendant's hospital accompanied by plaintiffs' counsel and, without identifying himself or counsel, inspected that portion of the hospital involved in the litigation and interviewed nurses therein, the trial court did not abuse its discretion in prohibiting the witness from testifying live but in permitting the use of the expert's earlier deposition.

5. A witness's character traits for honesty and veracity can only be shown by opinion testimony or evidence of reputation, and not by specific instances of the witness's conduct.

6. Harmless error is error which does not prejudice the substantial rights of a party. It affords no basis for a reversal of a judgment, and must be disregarded.

Michael E. Callen, of Callen, Sexton & Shelor, Kansas City, argued the cause, and Michael L. Sexton, was with him on briefs, for appellant.

Wayne T. Stratton, of Goodell, Stratton, Edmonds and Palmer, Topeka, argued the cause, and Marla J. Luckert, was with him on brief, for appellee Stormont-Vail Regional Medical Center.

Ronald D. Heck, of Fisher, Heck and Wright, P.A., Topeka, argued the cause and was on brief, for appellees Jimmie A. Gleason, M.D., and Drs. Tappen, Gleason, Ransdell, VandeGarde & Robinson, P.A.

James M. Warden, of Blackwell, Sanders, Matheny, Weary & Lombardi, Overland Park, argued the cause, and Carol R. Gilham, was on brief, for appellee Joseph B. Carter, M.D.

MILLER, Justice:

This is an appeal by the plaintiff, Jaymie Lyn Hagedorn, from a jury verdict for the defendants in a medical malpractice action. The parties to this appeal, besides the plaintiff, are Stormont-Vail Regional Medical Center; Dr. Joseph B. Carter, M.D., and Dr. Jimmie A. Gleason, M.D., the attending physicians, and the professional association of which Dr. Gleason is a member, Drs. Tappen, Gleason, Ransdell, VandeGarde, and Robinson, P.A.

Vicky Hagedorn, the mother of Jaymie Lyn Hagedorn, was admitted to Stormont-Vail shortly after noon on December 24, 1980, for the delivery of her baby. She had previously been under the care of a physician who is not a party to this action. Dr. Jimmie A. Gleason, an obstetrician and gynecologist, was on call at the hospital and he became Mrs. Hagedorn's attending physician. He first met her about 1:00 o'clock that afternoon. Dr. Gleason was assisted by Joseph B. Carter, M.D., a second-year resident who was assigned to him. Both physicians monitored Mrs. Hagedorn's progress throughout the afternoon, and both were in attendance when Dr. Gleason artificially ruptured her membranes at 6:10 o'clock that evening. An external heart monitor was applied. Dr. Gleason was called to St. Francis Hospital to deliver another patient, and at approximately 8:30 p.m. he called the nurses at Stormont-Vail and was advised that Mrs. Hagedorn was progressing normally. He sent Dr. Carter to Stormont-Vail to be in attendance on Mrs. Hagedorn, and went home, about a ten-minute drive from the hospital. Both Dr. Carter and the nurses were advised to call Dr. Gleason if any problems arose. Dr. Gleason phoned the hospital at 9:30 p.m. and was advised that everything was in order. At 10:05 p.m., one of the nurses in attendance learned from the audible read-outs of the heart monitor that the fetus's heart rate had dropped. She immediately took corrective action and summoned another nurse for assistance. They administered oxygen, repositioned the patient, applied an internal electrode for fetal heart monitoring, and notified Dr. Carter, who was on the floor. Dr. Carter examined the patient and immediately notified Dr. Gleason, who directed him to prepare the patient for delivery. During the telephone conversation, the decision was made to do a vaginal delivery rather than a Cesarean section. By 10:30 o'clock p.m., the patient was taken to the delivery room. Dr. Gleason arrived at the hospital shortly thereafter, and by 11:00 o'clock p.m., the delivery of Jaymie Lyn Hagedorn was accomplished.

At the time of birth, Jaymie Lyn was very depressed and sluggish. A pediatrician was called and arrived within four minutes after birth. An anesthesiologist was later in attendance. Eventually, the child was taken to the University of Kansas Medical Center for further treatment.

Plaintiff has several serious abnormalities which occurred prior to birth. Her ears are malrotated, she has very widely spaced nipples, and she has a serious heart condition--a constriction of the aorta--which is referred to as coarctation. Additionally, she has upturned earlobes; bent, overlapping toes; and underdeveloped genitals. These abnormalities do not form the basis for plaintiff's claim of damages. Surgery was performed at the Kansas University Medical Center to correct the coarctation.

Plaintiff also suffered brain damage. Concisely stated, it is her claim that the brain damage occurred immediately prior to birth and that it could have and should have been avoided; and that various acts of negligence of the defendants were the direct causes of the brain damage. There is no claim of direct injury by the use of forceps.

The first issue is whether the trial court erred in limiting the plaintiff to the deposition testimony of one of her experts, Dr. Bernard Nathanson. Dr. Nathanson had been retained early on by the appellant to testify as an expert. His deposition, covering some 179 pages, was taken prior to trial. On Sunday evening, after the first full week of the trial, Dr. Nathanson arrived in Topeka. He was picked up at the airport by an associate from plaintiff's law firm. Dr. Nathanson and the attorney went to Stormont-Vail where Dr. Nathanson introduced himself as an obstetrician from New York, saying that he just wanted to look around. He did not identify himself to the hospital staff as an expert witness for the plaintiff in the pending case against the hospital. Similarly, the attorney was not identified. Dr. Nathanson inspected the labor and delivery areas of the hospital and interrogated nurses about practices and procedures. When trial resumed on the following morning, counsel for the hospital asked the court not to permit Dr. Nathanson to testify in this case. Counsel argued that there is a statutory proceeding for inspection, which could have been followed but was not. He argued further that the doctor's deposition had been taken but now he had a different basis for his opinion. He had not supplemented the answers in his deposition. Counsel argued that the visit was a glaring impropriety in violation of the code of civil procedure and in violation of the canons of professional ethics, particularly DR 7-104, 235 Kan. cxlviii, which prohibits a lawyer from communicating with a party whom he knows to be represented by a lawyer, without the prior consent of the opposing lawyer. Counsel for the plaintiff indicated that trial counsel did not know of the visit until after it occurred, and counsel offered to instruct the witness not to go into anything that he may have learned during his visit to the hospital.

The trial judge expressed concern for the rights of all of the parties. Dr. Nathanson's deposition discloses that he testifies regularly as an expert, both in person and by deposition. The judge commented that:

"I've had these professional experts before, and I don't know that I can enter a Motion In Limine that will hold him."

The judge wanted to avoid a mistrial, since the parties had already spent over a week in court time. At the conclusion of the argument of counsel, and after a short recess, the court ruled as follows:

"THE COURT: ... All right. Here's my view. I think that what has been done is improper, highly improper, whether it's counsels' fault or even more specifically, Mr. and Mrs. Hagedorn's fault, who are the real parties in interest here. The fact is, there has to be some parameters under which discovery is to be conducted. And my feeling is that for an expert witness to go on the defendant's premises, interview employees and so forth prior to testifying without then allowing counsel to have the opportunity to make an inquiry, is improper. And the Court has got to be extremely cautious. What I'm willing to do is take that two or three hours, or whatever it takes, and we'll go over Doctor Nathanson's deposition, and I'm willing to let him testify by deposition. My concern is that if he--I looked briefly at his deposition. If we were to let him be used as a live witness, I'm afraid that we couldn't contain what could happen.

"The only thing to do is go to the testimony he's given before this action that presumably he instigated and I feel that to allow him to testify based upon anything that has not been supplemented by discovery or counsel having reasonable opportunity to inquire could be...