McClelland v. Ozenberger

• Decision Date: 15 September 1992
• Docket Number: No. WD,WD
• Citation: 841 S.W.2d 227
• Parties: Kimberly McCLELLAND, Appellant, v. Larry OZENBERGER, M.D., Respondent. 45262.
• Court: Missouri Court of Appeals

Page 227

841 S.W.2d 227

Kimberly McCLELLAND, Appellant, v. Larry OZENBERGER, M.D., Respondent.

No. WD 45262.

Missouri Court of Appeals Western District.

Sept. 15, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Oct. 27, 1992.

Application to Transfer Denied

Dec. 18, 1992.

Stephen Wayne Nichols, Arthur H. Stoup & Associates, P.C., Kansas City, for appellant.

Gardiner Blaine Davis, Kansas City, Michaella Warden, Nancy M. Landis, Overland Park, for respondent.

Before SHANGLER, P.J., and KENNEDY and SMART, JJ.

SHANGLER, Judge.

The plaintiff Kimberly McClelland sued the defendant Dr. Larry Ozenberger for medical malpractice. Dr. Ozenberger attended McClelland during her pregnancy and delivery. In order to prevent adjacent tears in the birth canal when the baby's head emerged, Dr. Ozenberger performed an episiotomy, which is an incision in the genital area. After she left the hospital, McClelland noticed occasional loose stool and drainage from her vagina. She saw Dr. Saleh, a specialist in obstetrics and gynecology, who diagnosed the condition as a rectovaginal fistula. Dr. Saleh referred McClelland to Dr. Campbell, a colon/rectal surgeon. Dr. Campbell confirmed the diagnosis of Dr. Saleh and removed the fistula.

In response to the inquiry of McClelland's counsel as to his opinion concerning her fistula difficulty, Dr. Campbell responded by letter, "... the episiotomy evidently cut into the rectal wall and was not repaired. I think that to have a complication like this would not be unusual, but to do nothing about it is strictly poor medical practice." Thereafter, McClelland executed an authorization that allowed Dr. Campbell to release medical records to defense counsel but specifically disallowed discussions between Dr. Campbell and defense counsel. Notwithstanding, there were discussions between them about the case, twice. After these ex parte discussions, plaintiff's counsel designated Dr. Campbell as an expert witness to be called at trial. The deposition of Dr. Campbell was admitted at the trial on behalf of the defendant.

The plaintiff McClelland before trial moved to suppress the deposition of Dr. Campbell, a treating physician, as incompetent evidence on the ground that he breached the physician-patient relationship established by § 491.060(5) by his ex parte discussions with defense counsel without the consent of the patient or order of the court. The plaintiff moved also that the deposition testimony be excluded on the ground that the ex parte conversations were breaches of the fiduciary duties owed by the physician to the plaintiff as patient.

McClelland's theory of recovery was that Dr. Ozenberger either negligently cut into the roof of her rectum or negligently failed to recognize and treat the fistula at her post-delivery check-up. The theory of the defense was that there were several possible causes for her rectovaginal fistula: such as, cryptitis, necrosis or mucosal prolapse.

McClelland contended that Dr. Campbell's opinion of the episiotomy episode changed after the ex parte discussions with defense counsel. She argued that Dr. Campbell retreated from his earlier stated position that Dr. Ozenberger's treatment "constituted poor medical practice." Dr. Campbell's office file recorded a visit by defense counsel with the notation: "Discussion on Kimberly: Told that epi was not a malpractice thing but probably skimmed over the crypts and glands which then resulted in the abscess and fistula." The defendant contended that Campbell's notation and his deposition testimony did not reflect a change in his characterization of McClelland's case. His use of the phrase "skimming over crypts," rather was merely another way to express "a tiny cut or entry into the crypt." The defendant contended also that Dr. Campbell used "abscess" to describe the natural history of anal cryptitis as a cause of rectovaginal fistula.

The case was tried to the jury and a verdict was returned for defendant Dr. Ozenberger. The plaintiff appealed the judgment and asserted as the ground of error the denial of her motion to suppress the evidence testimony of Dr. Campbell. This court reviewed the contentions of error and rendered opinion in McClelland v. Ozenberger, 805 S.W.2d 264 (Mo.App.1991). ¹ The court could not determine from the record "how much Dr. Campbell's position changed, if at all." Id. at 267. The opinion noted that Dr. Campbell testified at deposition "that a rectovaginal fistula is not an unusual episiotomy complication." Id. It noted also Dr. Campbell's opinion that "if it does develop, then a doctor's failure to treat falls below accepted standards of medical practice." Id. It was conceded that the fistula developed just after the episiotomy.

The court posed the question of law on appeal as whether "an unauthorized ex parte conversation between defense counsel and the plaintiff's treating physician in a medical negligence case ipso facto render the physician incompetent to testify at trial?" Id. We responded: "The answer to this issue depends on whether the physician changed his theory of diagnosis or opinion as a consequence of the ex parte conversations." Id. The opinion concluded from the law then extant that ex parte The issue of ex parte contacts was remanded for evidentiary hearing with directions, [id.] at 270:

                discussions between a plaintiff's treating physician and counsel for defendant were not authorized "without the grant of a motion to compel a medical authorization allowing for such discussions."  Id. at 268.   The opinion noted also that the law as thereafter developed "shows a judicial philosophy that discourages these sorts of discussions with plaintiff's doctor."  Id
                

If the trial court determines prejudice to the plaintiff, it shall grant a new trial. The burden to prove no prejudice at this hearing shall be on the defendant. If it grants a new trial, then the trial court must determine whether Dr. Campbell's testimony may be presented by the defendant. If the trial court finds the ex parte discussions involved counsel presenting facts to Campbell that would have eventually been posed to him under oath, it then shall determine an absence of prejudice and the judgment on the verdict will be allowed to stand.

Conformably with our mandate, the trial court conducted an evidentiary hearing to determine whether prejudice resulted to the plaintiff from the ex parte discussions between defendant's counsel and plaintiff's treating physician, Dr. Campbell. The trial court determined that the defendant carried his burden to show that there was no prejudice to the plaintiff from the ex parte conversations of Dr. Campbell with defense counsel. The court found specifically that there was "no evidence that defendant's counsel presented any facts to Dr. Campbell that would not have been presented to Dr. Campbell under oath." The trial court decided, accordingly, that the plaintiff was not entitled to a new trial. The plaintiff appeals the denial of a new trial, an order our opinion in McClelland specifically subjects to appeal by the aggrieved party. Id. at 270. McClelland seeks reversal of the order on three grounds. (1) The trial court abused its discretion by allowing defense counsel to put leading questions to Dr. Campbell on direct examination. (2) The trial court improperly overruled her motion for new trial because the findings of fact are not supported by substantial evidence and are against the weight of the evidence, and the conclusions of law erroneously apply the law to the facts. (3) The "change in testimony" remedy devised by McClelland to determine whether the unauthorized ex parte contacts in violation of the patient-physician privilege was prejudicial to the plaintiff should be reconsidered and replaced by a rule of per se exclusion.

McClelland imposed upon the defendant the burden to prove that the ex parte conversations between Dr. Campbell and defense counsel did not result in prejudice to the plaintiff. The initiative to adduce evidence on the issue, therefore, was that of the defendant. To that end, the defendant presented for testimony the two principals in the ex parte encounter, Dr. Campbell and defendant's attorney, Kenner. The plaintiff complains that the court allowed the defendant to pose leading questions to witness Campbell in a manner calculated to dispose answers that the opinions given by Campbell to defense counsel at the ex parte interviews were altogether consistent with the earlier diagnosis rendered by Campbell when he repaired McClelland's fistula. In a word, the plaintiff complains that defendant's counsel by tendentious questioning led his own witness towards the proof of the very issue remanded for adjudication: whether in any event "the ex parte discussions involved counsel presenting facts to Campbell that would have eventually been posed to him under oath." McClelland, 805 S.W.2d at 270.

The points on appeal that the testimony elicited by leading questions was prejudicial to the plaintiff and that, in any event, the remedy devised to determine on remand any prejudice from the unauthorized ex parte contacts should be replaced by a rule of per se exclusion are unavailing and need not be labored. Whatever efficacy the appeal promises rests on the validity of the contention that the facts found by the trial court have no substantive basis in the evidence, and so induced distorted conclusions of law and erroneous adjudication.

The point on appeal that the "change in testimony" remedy devised by McClelland to determine on remand any prejudice to the plaintiff from the ex parte encounters be reconsidered by this court and replaced by a rule of per se exclusion is simply precluded by the doctrine of the law of the case. The doctrine governs successive appeals involving the same issues and facts. Under the doctrine, the appellate decision becomes the law of the case in subsequent proceedings in the same cause. Davis v. J.C. Nichols...