Kehr v. Knapp

• Decision Date: 25 May 2004
• Docket Number: No. ED 83203.,ED 83203.
• Citation: 136 S.W.3d 118
• Parties: James and Carolyn KEHR, Appellants, v. Stephen KNAPP, D.O., Respondent.
• Court: Missouri Court of Appeals

136 S.W.3d 118

James and Carolyn KEHR, Appellants, v. Stephen KNAPP, D.O., Respondent.

No. ED 83203.

Missouri Court of Appeals, Eastern District, Division Four.

May 25, 2004.

Mark I. Bronson, Newman Bronson & Wallis, St. Louis, MO, for appellant.

Robert S. Rosenthal, Brown & James, P.C., St. Louis, MO, for respondent.

Before BOOKER T. SHAW, P.J., LAWRENCE G. CRAHAN, J., and PATRICIA L. COHEN, J.

PER CURIAM.

James and Carolyn Kehr ("the Kehrs") brought suit against Dr. Knapp for medical negligence and loss of companionship in connection with Dr. Knapp's alleged failure to diagnose Mr. Kehr's prostate cancer. The jury returned a verdict in favor of Dr. Knapp. On appeal, the Kehrs contend that the trial court erred when it denied their: (1) motion to bar the testimony of Dr. Piephoff, one of Mr. Kehr's treating physicians; (2) motion for a continuance; and (3) motion for a new trial on the basis that Dr. Knapp failed to identify Dr. Piephoff as a "retained" expert rather than a "non-retained" expert. Because we conclude that Dr. Piephoff functioned as a non-retained expert and his identity and the scope of his testimony were disclosed prior to trial, we affirm.

I. Background

Viewed in the light most favorable to the verdict, the evidence adduced at trial establishes that Mr. Kehr initially saw Dr. Knapp in March of 1998 for a routine physical examination.¹ As part of the examination, Dr. Knapp ordered a Prostate Specific Antigen ("PSA") test. A nurse in Dr. Knapp's office informed Mr. Kehr that the results of the PSA were slightly elevated and that Mr. Kehr should have the test repeated in two months. Mr. Kehr did not return to Dr. Knapp to have the PSA test repeated.

In 1999, as a result of insurance changes, Mr. Kehr selected a new primary care physician. This physician performed a routine physical examination and ordered a PSA test. The test indicated that Mr. Kehr's PSA was high and accordingly, the physician referred Mr. Kehr to a urologist, Dr. Alan Stein. Dr. Stein performed a biopsy that revealed prostate cancer. Dr. Stein prescribed treatment and referred Mr. Kehr to Dr. James Piephoff, a radiation oncologist. After determining the stage of Mr. Kehr's prostate cancer, Dr. Piephoff treated Mr. Kehr with six weeks of external radiation. Dr. Piephoff continued to care for Mr. Kehr through March 2003.

The Kehrs filed suit against Dr. Knapp on December 13, 2001. In their first amended petition, the Kehrs alleged that Dr. Knapp provided inadequate care and treatment by, inter alia, (1) failing to inform Mr. Kehr that a PSA test was abnormally elevated and (2) failing to recommend that Mr. Kehr undergo further testing or follow-up treatment.

In preparation for trial, the parties engaged in discovery. On February 20, 2003, Dr. Knapp filed Supplemental Answers to Plaintiff's Interrogatory Nos. 2 and 3. Interrogatory 3 sought identification of non-retained experts. In his answer to Interrogatory No. 3, Dr. Knapp stated that he "may call James Piephoff, M.D., 11155 Dunn Road, Suite 181E St. Louis, MO 63136, to testify regarding his care and treatment of Mr. Kehr which may include causation testimony and testimony regarding prognosis."

On April 3, 2003, three days before trial, the Kehrs filed a Motion to Strike Witness Dr. Piephoff, M.D. or alternatively, Motion for Continuance. In support of their motions, the Kehrs alleged, inter alia: (a) Dr. Piephoff was no longer a treating physician/non-retained expert because Dr. Knapp provided Dr. Piephoff with experts' depositions to review; (b) Dr. Knapp failed to disclose that Dr. Piephoff was a retained expert within the meaning of Rule 56.01(b)(4) and (5); and (c) unless the court continued the trial to allow the Kehrs to take Dr. Piephoff's deposition, the Kehrs would be prejudiced. The trial court denied the Kehrs' motion on April 3, 2003.

At trial, the Kehrs called Dr. Stein, Mr. Kehr's treating urologist. Dr. Stein acknowledged he was being paid three hundred and fifty dollars per hour for his time. Dr. Stein testified that, at the time of Mr. Kehr's initial visit, Mr. Kehr had a PSA of 9.86 and that Dr. Stein suspected Mr. Kehr had cancer. After a standard urological exam, Dr. Stein noted an enlarged prostate and recommended a biopsy. Dr. Stein performed a biopsy and discovered prostate cancer. A pathologist graded the cancer as a Gleason eight, indicating an aggressive cancer with a poor prognosis.

Dr. Stein ordered additional tests to determine the extent, if any, of the spread of the cancer and placed Mr. Kehr on hormone therapy intended to shrink the cancer. Following a bone scan, Dr. Stein graded the tumor as a bulky B-2 or a C, meaning that the tumor extended beyond the confines of the prostate gland. Because Dr. Stein was still unsure whether to recommend surgery, he ordered a prostascint scan to clarify whether the cancer had spread to the lymph nodes. Based on the prostascint scan, Dr. Stein concluded that the cancer was a D or T-4, meaning that it had metastasized to the lymph nodes. Following the test results, Dr. Stein referred Mr. Kehr to Dr. Piephoff. Dr. Stein continued to treat Mr. Kehr with hormonal suppression.

Dr. Stein stated that, in his opinion, Dr. Knapp was negligent because he did not follow-up with Mr. Kehr when he discovered an elevated PSA in 1998. Dr. Stein further opined that at the time of his initial visit with Dr. Knapp, Mr. Kehr's chance of survival and long-term cure was ninety percent and, at the time of trial, Mr. Kehr's chance of survival was ten percent.

Dr. Knapp called two retained experts and Dr. Piephoff in his case. Dr. Piephoff commenced his testimony by stating that, prior to testifying, he reviewed his own records, several depositions in the case and several articles to confirm the correctness of his treatment. Following Dr. Piephoff's initial testimony, the Kehrs' counsel objected and renewed their pre-trial motion to strike Dr. Piephoff as a witness. In addition to incorporating the arguments asserted in their earlier motion, the Kehrs' counsel argued that he believed Dr. Piephoff intended to testify to matters "over and above the care and treatment" he rendered to Mr. Kehr.

The trial court denied the renewed motion to strike, stating that: (1) the defendant had specifically alerted plaintiff to the possibility that Dr. Piephoff would be called; (2) calling Dr. Piephoff in the defense case did not convert him from a treating physician to a retained expert; (3) that as a treating physician, Dr. Piephoff was entitled to his opinion that Mr. Kehr's cancer had not metastasized; and (4) reliance on professional literature to support his opinion regarding his treatment was not improper.

Resuming his testimony, Dr. Piephoff acknowledged that he charged five hundred dollars per hour for his time. On cross-examination, Dr. Piephoff stated that, as of the time of trial, the defendant had paid him five thousand dollars.

Dr. Piephoff described his initial examination of Mr. Kehr and his resultant conclusion that Mr. Kehr presented with a Stage C cancer. In addition, Dr. Piephoff discussed his review of, and conclusions regarding, the prostascint scan. Dr. Piephoff, unlike Dr. Stein, viewed the prostascint scan as evidencing a Stage C cancer, rather than a Stage D. Dr. Piephoff's contemporaneous records, which the Kehrs reviewed prior to trial, reflected this conclusion.

Dr. Piephoff described his treatment plan, which consisted of external beam therapy without seed implant. Dr. Piephoff further stated that his treatment plan was based on his opinion that Mr. Kehr's cancer was a Stage C, rather than a Stage D. At the time treatment commenced, Dr. Piephoff concluded that Mr. Kehr had more than a seventy percent chance of survival. Following the completion of radiation therapy and a six-month waiting period, Mr. Kehr's PSA dropped to undetectable levels. In March 2003, at the last visit with Dr. Piephoff, Mr. Kehr's PSA remained at undetectable levels.

Neither defense counsel nor plaintiffs' counsel asked Dr. Piephoff to render an opinion about the adequacy of Dr. Knapp's care and treatment of Mr. Kehr. In contrast to plaintiffs' counsel's direct examination of Dr. Stein, defense counsel did not ask Dr. Piephoff to state whether he believed Dr. Knapp was negligent. Thus, contrary to the Kehrs' contention on appeal, Dr. Piephoff was not used to rebut Dr. Stein's opinion that Dr. Knapp was negligent. In addition, Dr. Piephoff was not asked whether Dr. Knapp's conduct caused a delay in diagnosis or treatment that resulted in a lost chance of survival. The primary disagreement between Mr. Kehr's treating physicians, Dr. Stein and Dr. Piephoff, was that Dr. Piephoff believed, based on the stage of the cancer and Mr. Kehr's response to treatment, Mr. Kehr had a better prognosis than offered by Dr. Stein.

At the close of evidence, the jury rendered a verdict in favor of Dr. Knapp. The Kehrs filed a Motion for New Trial based on the court's failure to bar Dr. Piephoff as a witness or grant a continuance. The trial court denied the Kehrs' Motion for a New Trial on July 9, 2003. This appeal followed.

II. Standard of Review

We review the trial court's denial of the Kehrs' motions to bar Dr. Piephoff's testimony and for continuance under an abuse of discretion standard. We recognize that trial courts are vested with broad discretion in administering the rules of discovery. State ex. rel. LaBarge v. Clifford, 979 S.W.2d 206, 208 (Mo.App. E.D. 1998). Where we are analyzing a trial court's actions in the context of a response to pre-trial discovery, "we consider whether, under the totality of the circumstances, the challenged act has resulted in prejudice or unfair surprise." Siller v. Rivituso-Siller, 129 S.W.3d 433, 436 (Mo.App. E.D.2004). The "[e]xercise of this discretion should be directed toward the accomplishment of fundamental fairness and the avoidance of unfair surprise." Id. (citing Ellis v. Union...