Maxey v. Hubble, s. 880908
| Decision Date | 10 November 1989 |
| Docket Number | 880915,Nos. 880908,s. 880908 |
| Citation | 238 Va. 607,385 S.E.2d 593 |
| Parties | Ellis F. MAXEY, M.D. and Charlotte M. Wild, M.D. v. Barbara B. HUBBLE. Record |
| Court | Virginia Supreme Court |
Thomas J. Harlan, Elizabeth H. Esinhart (Martha E. Withrow, Willcox & Savage, Norfolk, on briefs), for appellants.
Robert W. Mann (Young, Haskins, Mann & Gregory, Martinsville, on brief), for appellee.
Present: CARRICO, C.J., and COMPTON, STEPHENSON, RUSSELL, THOMAS, * WHITING and LACY, JJ.
This is an appeal from a judgment in favor of the plaintiff in a medical malpractice case. The dispositive question is whether the conduct of plaintiff's counsel was so calculated to inflame and prejudice the jury as to preclude a fair trial. We conclude that it was, and reverse.
Barbara B. Hubble was a patient of Dr. Ellis F. Maxey, an ophthalmologist. On January 23, 1984, Dr. Maxey performed an operation on Mrs. Hubble's right eye, removing a cataract and implanting an intraocular lens. The operation was performed in Riverside Hospital in Newport News, where Dr. Charlotte M. Wild practiced as an anesthesiologist. While administering general anesthesia to Mrs. Hubble, Dr. Wild had difficulty inserting an endotracheal tube. She succeeded on her fifth attempt. She told Dr. Maxey that Mrs. Hubble would have a sore throat as a result of the trauma caused by the intubation.
Mrs. Hubble was discharged from the hospital the following day. She complained of a sore throat for the next six days, after which she consulted Dr. William R. Steffey, an otolaryngologist. Dr. Steffey readmitted Mrs. Hubble to Riverside Hospital on January 30 for a laryngoscopy. She was found to have a perforation of the cervical esophagus, a very dangerous condition frequently fatal within 24 to 48 hours of its onset. A team of thoracic surgeons, Dr. Charles E. Umstott and Dr. Walter H. Graham, performed successful surgery, but Mrs. Hubble's condition was grave and she was not released from the hospital until February 22, 1984.
In 1986, Mrs. Hubble brought this malpractice action against Drs. Maxey and Wild. The plaintiff's position was that the endotracheal intubation was negligently performed, perforating the esophagus. The defendants contended that such a result would have caused death within 48 hours of the operation. Their position was that due to the unusual alignment of Mrs. Hubble's trachea, some trauma during intubation was unavoidable, and probably caused a laceration in the lining of the esophagus, which would not have violated the standard of care. Such lacerations are not uncommon and rarely evolve into the serious complications Mrs. Hubble experienced. Because of this disagreement, the trial became a two-week battle of experts.
Before trial, a dispute arose between counsel with regard to the propriety of interviewing an opponent's prospective expert witnesses. The question was complicated because some treating physicians were also to be called as experts, some experts had previously treated the plaintiff, some physicians were to be "fact witnesses" only, and some were to be experts in a limited sense, omitting any testimony as to the standard of care. The court ruled that physicians who had not treated the plaintiff, but who were to testify only as expert witnesses, could not be interviewed by opposing counsel. On the other hand, the court ruled that any physician who had treated the plaintiff was available to either side for interview and discovery.
Defense counsel named Dr. Steffey, the otolaryngologist, and Drs. Umstott and Graham, the thoracic surgeons, as prospective expert witnesses. Because these physicians also had treated Mrs. Hubble, plaintiff's counsel moved the court to order defense counsel to refrain from any ex parte communications with them. The court overruled the motion, reiterating its holding that "fact" witnesses were available for interview by all parties.
Notwithstanding that ruling, Gwen Schockemoehl, one of plaintiff's counsel ** thereafter wrote letters to Drs. Steffey, Umstott, and Graham advising them that "some courts have considered the rendering of expert opinions by treating doctors ... as a breach of the fiduciary relationship which exists between doctor and patient." The letter ended by asking the doctors to "refrain from discussing your care and treatment of her with unauthorized persons." Defense counsel sent a copy of the letter to the court, without comment. The court responded with a letter to all counsel reiterating the previous ruling, and indicating that action with respect to Mrs. Schockemoehl's letter would be deferred until a later stage of the case.
On the opening day of trial, plaintiff's counsel made a motion in limine to preclude the defendants from calling as witnesses any of the physicians who had treated the plaintiff, stating that this would be a "violation of the physician/patient privilege." The court held that this was covered by its original ruling, and that the court had been "shocked" by Mrs. Schockemoehl's letter. Nevertheless, Mr. Taylor proceeded to cross-examine Dr. Steffey as follows:
Q. Well, did Dr. Maxey's lawyers--did you talk with Dr. Maxey's lawyers about what your opinion was going to be in this case?
A. Yes.
Q. How many times have you talked with Dr. Maxey's lawyers?
A. I think on two occasions.
Q. Barbara Hubble is your patient, isn't she?
A. Yes.
Q. Wasn't she your patient on January 30 and 31?
A. Yes.
Q. And you treated her in the hospital?
A. That's correct.
Q. Your relationship to Barbara Hubble, was it not, was as a patient?
Mr. Taylor was undeterred. His interrogation immediately continued:
Q. You have medical ethics, though, don't you?
A. Yes.
Q. In your profession?
A. Yes.
Later, in recross-examination of Dr. Steffey, Mr. Taylor persisted:
Q. And you have met with Dr. Wild's lawyers, have you not?
A. Yes.
Q. How many occasions have you met with Dr. Wild's lawyers?
A. Three, I believe.
Q. Did you have any kind of a--did you ask Barbara Hubble if that would be okay with her?
Q. Did you have a medical authorization from Barbara Hubble?
Plaintiff's counsel, from opening statement through closing argument, attempted to portray the defense as a part of a conspiracy among members of the medical profession. In opening statement, plaintiff's counsel said:
[S]he's had what we submit to you as a devil of a time going from doctor to doctor here in this area ... trying to get help. She has been to two or three eye doctors in this area and found out, she will tell you, that they had been working for Dr. Maxey in this lawsuit on the side....
Plaintiff's counsel also told the jury about two other physicians Mrs. Hubble had consulted who, unknown to her, had secretly been "working for the other side."
Out of the hearing of the jury, defense counsel complained to the court. Plaintiff's counsel responded with remarkable frankness: "There is nothing wrong with trying to convey a conspiracy idea when everyone in the United States knows there is a conspiracy of silence, especially in a tight-knit ophthalmology community...." The court responded, The court, however, again denied defense counsel's motion for a mistrial.
Notwithstanding the court's admonitions, the conspiracy theme recurred persistently. In summation, Mr. Taylor argued to the jury:
Now, you might ask yourself, why didn't we get somebody here in Newport News to testify? Well, you know, physicians tend to close ranks in this type of situation, especially when they are all working together under the same circumstances. And I'm not being critical of any of the local physicians. They find themselves between a rock and a hard place in a situation like this. They have to work every day with Dr. Maxey and Dr. Wild.
. . . . .
And these doctors are all under the gun in that type of situation, and they don't come forth to volunteer to help the patient.
After a brief period of deliberation the jury returned a verdict for the plaintiff in the amount of $500,000, the exact amount claimed. The court denied the defendant's motion to set aside the verdict and grant a new trial and entered judgment on the verdict. We granted the defendants an appeal.
In A.C.R. Co. v. Robertson's Ex'r., 135 Va. 247, 263, 116 S.E. 476, 481 (1923), we said:
[An attorney] must be just to opposing litigants and witnesses and always respect their rights. His liberties in argument are large but they are not unlimited. He has no right to testify in argument nor to assume that there is evidence which has no existence, nor to urge a decision which is favorable to his client by arousing sympathy, exciting prejudice, or upon any ground which is illegal. Sometimes the impropriety is so serious in character that its evil effect cannot be corrected by the trial judge. If this ethical rule ... is not sufficient to control those who fail to observe it, ...
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