Johnston v. Ward
| Decision Date | 24 February 1986 |
| Docket Number | No. 0698,0698 |
| Citation | 344 S.E.2d 166,288 S.C. 603 |
| Court | South Carolina Court of Appeals |
| Parties | Cyrus Donald JOHNSTON, Executor of the Estate of Valerie Broadwell Johnston, Deceased, Appellant, v. William F. WARD, Jr., M.D., Penrod G. Hepfer, M.D., and The South Carolina Baptist Hospital, Respondents. . Heard |
Charles L. Henshaw, Jr., of Law Offices of O. Fayrell Furr, Jr., Columbia, for appellant.
Charles E. Baker and Jackson L. Barwick, Jr., of Belser, Baker, Barwick, Ravenel, Toal & Bender, Heyward E. McDonald, of Rogers, McDonald, McKenzie, Fuller & Rubin, and Ernest J. Nauful, Jr., of Nauful & Ellis, Columbia, for respondents.
These wrongful death and survival actions brought by Cyrus Donald Johnston, Executor of the Estate of Valerie Broadwell Johnston, deceased, against William F. Ward, Jr., M.D., Penrod G. Hepfer, M.D., and the South Carolina Baptist Hospital involve allegations of medical malpractice. Johnston appeals from verdicts in favor of Dr. Ward, Dr. Hepfer, and Baptist Hospital.
The issues on appeal relate to (1) the denial of a motion to compel disclosure of investigative reports compiled by an insurance adjuster and submitted to an expert witness, (2) the admission of expert testimony regarding the responsibility of a physician taking calls for another physician, (3) the refusal to permit cross-examination of an expert witness as to testimony given by the witness in a deposition in prior litigation and as to the witness's relationship with one of the attorneys involved in the trial of the case, (4) the denial of motions for mistrial because of questions asked by counsel concerning the existence of life insurance and the economic impact of remarriage, (5) the refusal of a request to charge the doctrine of last clear chance and to include a special verdict question concerning the doctrine, and (6) the refusal to strike the defense of assumption of risk and the giving of jury instructions and the inclusion of a special verdict question concerning the defense.
We affirm.
At 5:15 a.m. on March 22, 1979, Johnston found his wife Valerie collapsed, but conscious, in the hallway of their home. Valerie told Johnston, "I took my pills." Johnston immediately called for an ambulance.
After the ambulance arrived, Johnston gave the ambulance personnel three empty bottles that he found on the kitchen counter. The bottles had contained Trilafon, Tofranil PM, and Artane, prescription drugs Valerie had been taking for about eight years.
Valerie told an ambulance attendant that she had "doubled up" on her medication. He asked her whether that was all the medication she had taken and she said that it was. Valerie made no mention of aspirin products.
At Johnston's insistence, the ambulance attendants took Valerie to the emergency room of the Baptist Hospital. They arrived about 6:00 a.m.
Once at the emergency room, Valerie told a nurse that at 10:00 p.m. the night before she had taken a "handful" of Trilafon and Tofranil PM tablets.
Dr. Ward, the emergency room physician, began examining Valerie around 6:30 a.m. He found her depressed, able to ask and answer simple questions, and oriented as to "time, person, and place." She did not manifest any pain, tenderness, or nausea.
Valerie told Dr. Ward that she had taken "about 20" pills. She also denied having taken anything other than the prescription drugs.
Based on her history, including what she had related to Johnston, the ambulance attendant, and emergency room nurse, Dr. Ward concluded that Valerie had taken an overdose of Trilafon and Tofranil PM. He neither induced Valerie to vomit nor pumped out her stomach, choosing instead to follow what he described as the "observation approach."
At 6:45 a.m., Dr. Ward telephoned Dr. Hepfer at his home. Dr. Hepfer had treated Valerie since 1971 for depression and anxiety. He agreed with Dr. Ward that Valerie should be sent to the hospital's psychiatric floor. He also agreed to take responsibility for her.
On admitting Valerie to the psychiatric floor, Dr. Ward gave orders that Valerie have "complete bed rest" and that "suicidal precautions" be taken.
After being placed on the psychiatric floor, Valerie admitted to having taken an overdose of her prescription medication and again denied having taken anything else.
A nurse on the psychiatric floor checked Valerie every fifteen minutes from 6:45 a.m. until 3:15 p.m., when her shift ended. She found Valerie alert and coherent. Other hospital personnel were in and out of Valerie's room all morning long.
Johnston and his daughter also visited Valerie. They came around mid-day and talked with her.
Instead of coming to the hospital, Dr. Hepfer left a message for Dr. Charles Blain Baber, III, to see Valerie for him. Dr. Baber, who was handling calls for Dr Hepfer that morning, looked in on Valerie around 10:00 a.m. Although Dr. Baber did not awaken her, he did check her general condition.
Dr. Hepfer called the hospital at 11:30 a.m. and inquired about Valerie. A nurse told him that Dr. Baber had seen Valerie earlier. He asked the nurse to determine from Valerie whether she wanted him to come in and see her that day. The nurse conferred with Valerie and reported to Dr. Hepfer that Valerie said she was "just a little sleepy" and that she would see Dr. Hepfer the next day.
At 4:45 p.m., a nurse found Valerie "exhibiting some mild seizure activity." Her body was "twitching." She was also "hyperventilating" and "unresponsive to staff's questions." The nurse called and left a message for Dr. Baber. He returned the call at 6:10 p.m.
Between 6:10 p.m. and 7:05 p.m., Johnston returned to the hospital bringing with him 21 BC powder wrappings that he found in a trash can at home. BC powder is a form of aspirin, which contains salicylate.
Upon receiving this new information from Johnston, the nurses on duty again called Dr. Baber. At 7:05 p.m., a salicylate level blood test was ordered to be performed on Valerie. The test results were reported at 8:10 p.m. They showed a lethal salicylate level. Valerie was immediately transferred to the intensive care unit.
Valerie, however, became comatose that night. She died at 8:00 a.m. the next morning of salicylate overdose.
These actions followed. They were consolidated for trial. After nine days of testimony, the trial court submitted the cases to the jury using in each case a special verdict form on all material issues.
In both cases, the jury found that Dr. Ward was negligent but that Dr. Hepfer and the hospital were not negligent. The jury found Dr. Ward, Dr. Hepfer, and the hospital were neither reckless nor grossly negligent. The jury also found that Valerie was contributorily negligent and that she assumed the risk.
The trial court directed verdicts in favor of Dr. Ward, Dr. Hepfer, and Baptist Hospital based on the findings of the jury as expressed by the special verdict forms.
Johnston contends the trial court committed reversible error in refusing to allow his counsel to examine documents compiled by an insurance adjuster and submitted to a medical expert later called as a witness for Dr. Ward and the other respondents.
Prior to trial and during the deposition of Dr. Donald O. Allen, a defense expert, Johnston's attorney learned that Dr. Allen had been provided with investigative reports prepared by an adjuster for the Southeastern Joint Underwriting Association, the respondents' insurance carrier. After counsel for the respondents refused to allow examination of these documents, Johnston's attorney moved to compel their production.
The Honorable A. Lee Chandler, then a Circuit Judge and now a Supreme Court Justice, conducted a hearing on Johnston's motion and entered an order denying it. He held, after inspecting the documents in camera, that none of the undisclosed information contained in the reports was relevant to the formulation of Dr. Allen's opinion, that Johnston had not satisfied the good cause requirement of Circuit Court Rule 88, and that the reports constituted attorney work- product and thus were not discoverable under Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
A trial court's rulings in matters involving discovery will not be disturbed on appeal absent a clear showing of an abuse of discretion. Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct.App.1984), cert. denied, 283 S.C. 64, 320 S.E.2d 35 (1984). Johnston made no such showing.
Circuit Court Rule 88, which, as of July 1, 1985, was repealed and replaced by Rule 34 of the new South Carolina Rules of Civil Procedure [see S.C.R.CIV.P. 34, 85(c), and 86], allowed a party, upon a showing of good cause, to obtain through court order "any designated documents, papers, books, ... which constitute or contain evidence relating to any of the matters within the scope of the oral examination permitted by the rule relating to depositions on oral examination...." The scope of the oral examination, as provided in Circuit Court Rule 87 B, which also was repealed and replaced as of July 1, 1985 [see S.C.R.CIV.P. 26(b), 85(c), and 86], extended to "any matter, not privileged, which is relevant to the subject matter involved in the pending action...."
It is clear, then, from a reading of former Rules 87 B and 88, that only relevant matter was discoverable. Indeed, the Supreme Court, in South Carolina State Highway Dept. v. Booker, 260 S.C. 245, 195 S.E.2d 615 (1973), indicated that relevancy is the first consideration in a determination of whether a party satisfied the "good cause" requirement of Rule 88.
Our own examination of the materials in question reveals that Johnston had access to or was provided with all the relevant information relied upon by Dr. Allen in forming his expert opinion. There was, then, no cause to give Johnston the other information or the documents containing the other information. Judge Chandler, therefore, committed no error in not giving Johnston...
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