Jackson v. Buchman

• Court: Arkansas Supreme Court
• Writing for the Court: Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Beverly W. Cutler; PER CURIAM; Cutler
• Citation: Jackson v. Buchman, 996 S.W.2d 30, 338 Ark. 467 (Ark. 1999)
• Decision Date: 22 July 1999
• Docket Number: 98-1445
• Parties: Diana JACKSON v. Dr. J.K. BUCHMAN and J. K. Buchman, M.D., P.A. 98-1445 ___ S.W.2d ___ Opinion delivered

Diana JACKSON v Dr. J.K. BUCHMAN and J. K. Buchman, M.D., P.A.

98-1445 ___ S.W.2d ___

Opinion delivered July 22, 1999

Supreme Court of Arkansas

Appeal from Grant Circuit Court; Phillip H. Shirron, Judge; affirmed.

1. Evidence -- evidentiary rulings -- trial court's discretion. -- Trial courts are accorded wide discretion in evidentiary rulings, and the supreme court will not reverse such rulings absent a manifest abuse of discretion; the court will not reverse a trial court's ruling on evidentiary matters absent a showing of prejudice; the balancing of probative value against prejudice, pursuant to Ark. R. Evid. 403, is a matter left to the sound discretion of the trial judge, and that ruling will not be reversed absent a manifest abuse of discretion.

2. Trial -- cross-examination -- trial court's latitude to impose reasonable limits. -- A trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of the issues or interrogation that is only marginally relevant.

3. Evidence -- admissibility -- physician's lack of board certification or failure of board examination. -- Generally, evidence of a physician's lack of board certification is admissible; on the other hand, evidence that the physician failed the board examination is generally not admissible, regardless of whether it is offered (1) to show that the physician was negligent or (2) to impeach the physician's expert testimony.

4. Evidence -- admissibility -- appellee's failed attempts to pass board examination irrelevant. -- Evidence of appellee's failed attempts to pass the board examination was not relevant to show that he lacked the level of skill and learning possessed by the members of his profession and was not competent as a surgeon; the ability or inability to pass examinations has no bearing on the issue of one's ability to meet the appropriate standard of care on a specific occasion; moreover, it was undisputed that board certification was not required by law to practice surgery in Arkansas; accordingly, the legal standard of care set out in AMI 1501 was in no way affected by board certification.

5. Evidence -- expert testimony -- trial court's discretion. --Whether a witness may give expert testimony pursuant to Ark. R. Evid. 702 rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of discretion; once an expert witness is qualified, the weakness in the factual underpinning of the expert's opinion may be developed upon cross-examination and such weakness goes to the weight and credibility of the expert's testimony.

6. Evidence -- physician's lack of board certification -- when such evidence may be used for impeachment. -- Evidence of a physician's lack of board certification may be used to impeach the physician's credibility as an expert witness; however, the trial court must still properly weigh the interests under Ark. R. Evid. 403, which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the possibility of unfair prejudice or confusion of the issues; this weighing is left to the trial court's sound discretion and will not be reversed absent a showing of manifest abuse.

7. Evidence -- exclusion of evidence that appellee had failed certification examination -- no abuse of discretion. -- The trial court did not abuse its discretion in excluding the evidence that appellee had failed the certification examination on a number of occasions; given the potential harm that may result from such testimony, i.e., that the jury may improperly consider it as evidence of negligence, the trial court did not err in excluding the evidence.

8. Evidence -- reversible error -- when it occurs. -- Error may not be predicated upon an evidentiary ruling unless a substantial right is affected, and the supreme court will not reverse in the absence of prejudice; it is the appellant'sburden to indicate to the court what prejudice was caused by the erroneous ruling.

9. Evidence -- error harmless -- appellant not prejudiced by trial court's ruling. -- Although it was error for the trial court to refuse to permit appellant to ask appellee if he was a board-certified surgeon because the evidence of whether he was board certified was relevant to rebut his credibility as an expert witness, the supreme court did not reverse because no prejuduce resulted from the trial court's exclusion of the evidence; the record reflected that several physicians, one of whom was called by the appellant, gave expert testimony that appellee met the standard of care in his treatment of appellant; the witnesses indicated that the mere fact that appellee was not board-certified did not mean that he was not qualified to perform the particular surgery involved, nor was it a basis for an opinion that appellee was negligent or that his actions fell below the standard of care.

10. Evidence -- exclusion of evidence regarding physicians' directory -- no abuse of discretion. -- Where there was no proof that appellee had anything to do with the publication or distribution of a physicians' directory or that he had provided them with fraudulent or inappropriate information, the trial court's exclusion of this evidence was not amanifest abuse of discretion, given the scant, if any, probative value and the obvious prejudicial effect; the judgment of the trial court was affirmed.

McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., by: Phillip H. McMath, for appellant.

Friday, Eldredge & Clark, by: William M. Griffin III and Clifford W. Plunkett, for appellees.

W.H."Dub" Arnold, Chief Justice.

This is a medical-malpractice action. Appellant Diana Jackson filed a complaint in the Grant County Circuit Court alleging that Appellee Dr. Joseph K. Buchman negligently injured her during surgery to remove her gallbladder. The jury found in favor of Dr. Buchman, and Jackson now appeals. For reversal, Jackson argues that the trial court erred in refusing to allow her to present evidence that Dr. Buchman failed to pass an examination to become a board-certified surgeon, and that he misrepresented his credentials to gain listing as a board-certified surgeon in a physicians' directory. Because this case presents issues of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We affirm.

The record reflects that on or about November 2, 1994, DianaJackson was hospitalized at St. Vincent's Infirmary in Little Rock for surgery to remove her gallbladder. Dr. Buchman performed the surgery, which is called a laparoscopic cholecystectomy. During the course of the surgery, Dr. Buchman severed Jackson's bile ducts. As a result, Jackson had to have numerous corrective surgeries; the first surgery was performed by Dr. Buchman on November 10, 1994. Subsequently, Jackson had surgery at Baylor University in Texas and at Johns Hopkins University in Maryland. At trial, the evidence showed that one of the known risks associated with this type of surgery is that the patient's bile ducts could be damaged or cut during the procedure. Additionally, there was evidence that Jackson had an abnormal anatomy in the area of her gallbladder.

Prior to the trial, Dr. Buchman filed a motion in limine to prohibit Jackson from eliciting testimony that he has not become board certified by the American College of Surgeons, a voluntary organization. Dr. Buchman passed the written examination on his second or third try, but failed the oral part of the test three times and was thus no longer eligible to take the test without further training. Dr. Buchman argued that such a certification was not required to practice surgery in the Little Rock hospitals in which he practiced, and that such evidence would be prejudicial because Jackson would likely use that information to insinuate that he failed to meet the standard of care in this instance. Jackson contended that the evidence was relevant to show that Dr. Buchman lacked the level of skill and learning possessed by the members of his profession, pursuant to AMI 1501,¹ and that it went to the issue of his reputation as a surgeon. The trial court granted the motion, finding that the evidence would only convolute the issues before the jury, and ordered Jackson not to refer to, mention, cross-examine, or discuss in any way the fact that Dr. Buchman is not board certified or that he has failed the oral portion of his examination.

During the course of the trial, after Dr. Buchman had testified, Jackson's attorneys moved to admit evidence of his failure to obtain board certification on the ground that the defense had opened the door with their questions about his qualifications and reputation as a competent surgeon in the community. Jackson's attorneys also asserted that the evidence was admissible to impeach Dr. Buchman's credibility as an expert. Initially, the trial court indicated that it would allow Jackson's attorneys to ask Dr. Buchman if he is board certified, but that they could not inquire as to how many times he had taken the examination and what part of the test he failed. After hearing further argument, however, the trial court went back to its original position, ruling that the evidence was not admissible. The trial court also rejected Jackson's argument that Dr. Buchman had misrepresented that he was board certified in a physicians' directory. The jury returned a unanimous verdict in favor of Dr. Buchman, and this appeal followed.

I. Evidence of Failure to Attain Board Certification

For her first point for reversal, Jackson argues that the trial court erred in refusing to allow her to present evidence that Dr. Buchman was not a board-certified surgeon. Specifically, Jackson wished to present evidence that Dr. Buchman was not board certified, that he had failed to pass the certification examination after repeated attempts, and that, as a result of those past failures, he was no longer...