Hurlock v. Park Lane Medical Center, Inc.

Decision Date08 October 1985
Docket NumberNo. WD,WD
Citation709 S.W.2d 872
PartiesDebra Lynn HURLOCK, Personal Representative for the Estate of Dolly D. Hurlock, Plaintiff-Appellant, v. PARK LANE MEDICAL CENTER, INC., et al., Defendants-Respondents. 36288.
CourtMissouri Court of Appeals

James D. Williamson, John R. Mencl, Independence, for plaintiff-appellant.

Don B. Roberson, John P. Poland, Kansas City, for defendant-respondent Park Lane Medical Center, Inc.

Theodore J. Furry, Birmingham & Furry, Kansas City, for defendants-respondents Gerald F. Williams, D.O. and Gary M. Johnston, D.O.

Darrell L. Havener, Daniel L. Fowler, Watson, Ess, Marshall & Enggas, Kansas City, for defendants-respondents Gordon Thorn, D.O., James C. Bolin, D.O., William J. Monaghan, D.O. and Peter I. Vilkins, D.O.

Before DIXON, P.J., and SOMERVILLE and NUGENT, JJ.

SOMERVILLE, Judge. *

Plaintiff (hereinafter appellant) 1 filed a suit for damages against Park Lane Medical Center, Inc. (hereinafter respondent hospital) and Doctors Williams, Thorn, Bolin, Monaghan, Vilkins and Johnston (hereinafter respondent doctors) arising from the amputation of her right leg. The trial court, at the close of all the evidence adduced during a lengthy jury trial, directed a verdict in favor of respondent doctors and against appellant in response to a motion for a directed verdict. Respondent hospital's motion for a directed verdict at the close of all the evidence was overruled and the case was submitted to the jury against respondent hospital. The jury, after due deliberation, returned a verdict in favor of respondent hospital and against appellant. Following an unavailing motion for new trial, this appeal ensued.

Before delineating the points relied upon by appellant on appeal, pause is taken to underscore the theories of negligence relied upon by appellant against the respective respondents. While a patient at respondent hospital for treatment of a spiral fracture to her right femur, appellant alleged she was beset with decubitus ulcers or, in lay terms, bedsores, which, by reason of complications arising therefrom, eventually necessitated amputation of her right leg just above the knee. One of the respondent doctors, appellant's admitting physician, entered a written order in the patient's medical records that she be turned in bed every two hours as she suffered from a number of medical complications which made her susceptible to the formation of decubitus ulcers. Appellant's theory of negligence against respondent hospital was that its nursing staff did not comply with the admitting physician's written order to turn her every two hours during her hospital stay. Concomitantly, appellant's theory of negligence against respondent doctors 2 was that they failed to check her hospital records for compliance by respondent hospital's nursing staff with the written order to turn her every two hours.

Before engaging in a detailed resume of the facts, appellant's points on appeal may be paraphrased as follows. As to respondent doctors, appellant contends the trial court erred in directing a verdict at the close of all the evidence in their favor and against appellant. As to respondent hospital, appellant raises two instances of alleged trial error which she claims entitle her to a new trial, namely, (a) error in permitting counsel for respondent hospital, over her objection, to introduce extrinsic evidence on a collateral matter for the purpose of impeaching the credibility of an expert witness called by appellant, and (b) error in permitting an expert witness called by respondent hospital to testify on its behalf because the identity of the expert witness had not been timely disclosed in response to appropriate discovery.

Respondent hospital, in addition to meeting the points raised by appellant, asserts that appellant is not entitled to any appellate relief, notwithstanding the alleged trial errors, as she failed to make a submissible case against respondent hospital. According to an established line of case authority, when a plaintiff-appellant, following an adverse verdict and denial of a motion for new trial, predicates an appeal on alleged trial error and defendant-respondent asserts that plaintiff-appellant failed to make a submissible case, submissibility may become a viable issue for review on appeal. Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73 (1951); and R.H. Macey & Co. v. Bell, 531 S.W.2d 58 (Mo.App.1975).

From a procedural standpoint, reaching the issue of submissibility in the context above mentioned has been tempered by the recent case of Grippe v. Momtazee, et al., 696 S.W.2d 797 (Mo.1985), requiring that allegations of trial error must be addressed and disposed of on appeal before the issue of submissibility can be considered. If correctly perceived, the procedural mandate gleaned from Grippe, rests on the theory that if it is determined on appeal that no trial error occurred in conjunction with a jury verdict in favor of a defendant-respondent, the issue of submissibility is never reached as defendant-respondent is not an "aggrieved party" on appeal. If, however, one or more instances of trial error asserted by a plaintiff-appellant are ruled in her favor on appellate review, then the issue of submissibility becomes a "question inherent in deciding whether the error found by the appellate court merits reversal or remand for a new trial." Grippe v. Momtazee, et al., supra.

Although not addressed in Grippe, in determining whether trial error found by an appellate court "merits reversal or remand for a new trial" in face of a plaintiff-appellant's failure to make a submissible case, a cardinal consideration is whether the trial error was of a nature which erroneously precluded evidence offered by a plaintiff-appellant, which, if considered in conjunction with all other evidence, would have made a submissible case. See Look v. French, 346 Mo. 972, 144 S.W.2d 128, 132 (1940).

Complying with the procedural mandate of Grippe, attention initially focuses on appellant's claim that the trial court, over her objection, permitted respondent hospital to introduce extrinsic evidence on a collateral matter for purposes of impeaching the credibility of a nurse called by appellant as an expert witness. On cross-examination, the nurse was questioned about the surrounding circumstances under which she left a hospital where she had previously been employed. Her answer was that she was charged with "taking drugs". On redirect examination, she denied any basis for the charge and testified that after she obtained the services of an attorney she was "reinstated" and then permitted to resign, and received all of her back pay. In presenting its case, respondent hospital was permitted, over appellant's objection, to introduce evidence that the nurse expert was charged with improperly charting the dispensation of narcotics to patients under her care, with the implication that the narcotics were being diverted to other persons.

At the outset, note is taken of the general rule that an opposing party is bound by a witness' answers elicited on cross-examination with respect to collateral matters 3 inquired into for purposes of impeachment and is not permitted to introduce extrinsic evidence to refute the witness' answers. Overfield v. Sharp, 668 S.W.2d 220 (Mo.App.1984). The logic or rationale underpinning this general rule is explicated as follows: "Two considerations are served by the rule. The jury is shielded from the interminable proliferation of issues which otherwise would allow the court to go into the merits of all such collateral matters, and instead of trying the one lawsuit, the court might well be called upon to try as many questions as there were collateral matters presented. Hoffman v. Graber, 153 S.W.2d 817, 820 (Mo.App.1941). Also, it avoids the unfairness and the surprise of requiring the opposing party to meet and disprove issues not raised by the pleadings." 668 S.W.2d at 223.

Respondent hospital contends that extrinsic evidence on the collateral matter under consideration falls within certain recognized exceptions to the general rule. First, respondent hospital appears to argue that expert witnesses may be impeached by the introduction of extrinsic evidence on collateral matters affecting their credibility without limitation. The exception which respondent hospital purportedly relies on appears to be restricted to the use of extrinsic evidence to show bias or prejudice on the part of a witness, including expert witnesses, in favor of one party or the other, as the bias or prejudice of a witness is not deemed to be a collateral matter. Thornton v. Vonallman, 456 S.W.2d 795 (Mo.App.1970); and Weatherly v. Miskle, 655 S.W.2d 842 (Mo.App.1983). The perimeters of the exception purportedly relied on by respondent hospital are drawn by the test for determining what constitutes collateral matters. As adopted in Frechin v. Thornton, 326 S.W.2d 122, 126 (Mo.1959), " '[t]he test as to whether the matter is collateral ... is whether the party seeking to introduce it for purposes of contradiction would be entitled to prove it as part of his case ... [;] [i]f a fact may be shown in evidence for any purpose independently of contradiction, it is not collateral' ". Respondent hospital has failed to demonstrate how the extrinsic evidence in question served "any purpose independently of contradiction", nor does it claim that it tended to prove that the nurse expert was biased or prejudiced.

Respondent hospital also contends that introduction of the extrinsic evidence in question fell within an additional exception to the general rule because it was germane to impugn the nurse's competency or qualifications to testify as an expert witness. Resolution of this...

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