McGee v. Bruce Hosp. System

• Decision Date: 09 January 1996
• Docket Number: No. 24387,24387
• Citation: 321 S.C. 340,468 S.E.2d 633
• Court: South Carolina Supreme Court
• Parties: Ralph M. "Mike" McGEE, as Personal Representative of the Estate of Donna L. McGee, Respondent/Appellant, v. BRUCE HOSPITAL SYSTEM, Palmer M. Kirkpatrick, Jr., M.D., Alan Blaker, M.D., Reginald S. Bolick, M.D., and Joseph M. Pearson, M.D., both individually and d/b/a Pee Dee Surgical Group, P.A., and Margaret E. Lee, M.D., individually and d/b/a Pee Dee Radiology Group, Defendants, of whom Joseph M. Pearson, M.D., is Appellant/Respondent, and Alan Blaker, M.D., and Margaret E. Lee, M.D., are Respondents. . Heard

Page 633

468 S.E.2d 633

321 S.C. 340

Ralph M. "Mike" McGEE, as Personal Representative of the Estate of Donna L. McGee, Respondent/Appellant, v. BRUCE HOSPITAL SYSTEM, Palmer M. Kirkpatrick, Jr., M.D Alan Blaker, M.D., Reginald S. Bolick, M.D., and Joseph M Pearson, M.D., both individually and d/b/a Pee Dee Surgical Group, P.A., and Margaret E. Lee, M.D., individually and d/b/a Pee Dee Radiology Group, Defendants of whom Joseph M. Pearson, M.D., is Appellant/Respondent and Alan Blaker, M.D., and Margaret E. Lee, M.D., are Respondents.

No. 24387.

Supreme Court of South Carolina.

Heard Jan. 9, 1996.

Decided March 18, 1996.

Rehearing Denied April 22, 1996.

Charles E. Carpenter, Jr., and Deborah Harrison Sheffield, both of Richardson, Plowden, Grier & Howser, P.A., Columbia, for appellant/respondent and respondents.

William W. Doar, Jr., of McNair & Sanford, Georgetown, for respondent Margaret E. Lee, M.D.

David A. Brown, Aiken, for respondent Alan Blaker, M.D.

Edwin P. Martin and Teresa A. Clemenz, both of Turner, Padgett, Graham & Laney, P.A., Columbia, for appellant/respondent.

David W. Goldman, Diane M. Rodriquez, and Terrell T. Horne, all of Bryan, Bahnmuller, King, Goldman & McEleveen, Sumter, for respondent/appellant.

MOORE, Justice:

This is a medical malpractice case. We affirm in part, reverse in part, and remand.

FACTS

In October 1991 Donna McGee was treated at Bruce Hospital for solitary rectal ulcer syndrome. Treatment included resting the bowels and intravenous (IV) nutrition. The IV infiltrated and was removed and another one could not be started. Donna's gastroenterologist, Dr. Kirkpatrick, ordered a subclavin central venous catheter, which is a central IV inserted in a vein close to the heart. Dr. Pearson, a surgeon, inserted the catheter and then requested an x-ray to determine its placement. Dr. Pearson reviewed the x-ray and, although the tip of the catheter was not ideally positioned, decided the risks of re-positioning it outweighed any potential risks of leaving it in this position. Dr. Lee, a radiologist, also read the x-ray and did not recommend removal or re-positioning of the catheter.

Early the next morning, Donna began to experience chest pains and pressure. Her vital signs were normal. Her pain worsened and Dr. Bolick, Dr. Pearson's partner, ordered a chest x-ray. After reading the x-ray, Dr. Bolick ordered the catheter pulled back 3 inches and another x-ray. Dr. Lee read this x-ray and stated the catheter was in a good position. Thereafter, Donna began to sweat profusely. The IV fluids were stopped and the catheter was flushed. Dr. Bolick ordered blood tests and an EKG to determine if Donna was having a heart attack. Since her vital signs had become abnormal, Dr. Kirkpatrick requested a cardiologist consult. Donna became lethargic and they could not obtain a blood pressure reading. Dr. Blaker, a cardiologist, arrived and took charge. Based upon an echocardiogram, he determined Donna was suffering from cardiac tamponade, a condition where fluid invades the pericardium surrounding the heart causing the heart to beat rapidly. This condition is fatal if not properly and promptly treated.

One treatment is to perform a pericardiocantesis to drain excess fluid from the pericardium. Dr. Blaker began this procedure and withdrew over 1 1/2 liters of fluid. Dr Donna's husband, Mike McGee (McGee), brought these wrongful death and survival actions against the hospital and the doctors involved. The trial court directed a verdict for Dr. Blaker. The trial court also directed verdicts on punitive damages for the remaining defendants except Dr. Pearson. The jury returned a verdict against only Dr. Pearson and awarded the following: survival action--$500,000 actual damages and $2 million in punitive damages; wrongful death action--$500,000 actual damages and $1 million punitive damages. Dr. Pearson moved for a new trial which was denied. Dr. Pearson appeals the jury verdict and the McGees cross-appeal the granting of directed verdicts against the other defendants.

Blaker, however, had actually punctured the liver and was withdrawing fluids from it. Donna went into full cardiac arrest and Dr. Pearson began an open-chest procedure in her room. The pericardium was found distended. Dr. Pearson drained the pericardium and began massaging her heart. A blood pressure and pulse were obtained. Donna was taken to the operating room where she became unstable again. After three hours of cardiac massage, a pacemaker was inserted and Donna was [321 S.C. 344] taken to the intensive care unit where she died shortly thereafter.

ISSUES

1) Did the trial judge erroneously allow Dr. Podgorny to testify as to the proper standard of care?

2) Do the punitive damages awards violate due process?

3) Are the awards of punitive damages in both the survival and wrongful death actions impermissible double recovery?

4) Did the trial judge err in directing a verdict for Dr. Blaker?

5) Did the trial judge err in precluding Dr. Schabel from testifying as an expert witness?

DISCUSSION

1) Qualification of Dr. Podgorny

Dr. Pearson alleges the trial court erroneously qualified Dr. Podgorny as an expert. He contends simply because Dr. Podgorny is not a surgeon, he is not qualified to testify as an expert about the standard of care for surgeons as to the placement of subclavin catheters. We disagree.

The qualification of an expert witness and the admissibility of an expert's testimony are matters within the trial court's discretion. Creed v. City of Columbia, 310 S.C. 342, 426 S.E.2d 785 (1993). We recently held in Lee v. Suess, 318 S.C. 283, 457 S.E.2d 344 (1995), a doctor's limited exposure to a particular field merely goes to the weight of his testimony and not its admissibility. Further, in Gooding v. Saint Francis Xavier Hosp., 317 S.C. 320, 454 S.E.2d 328 (Ct.App.1995), the court held although an emergency room technician may not have been qualified to testify about the broad field of anesthesiology, he was well-qualified to testify about the limited area of intubation.

Similarly here, although Dr. Podgorny may not have been qualified to testify about the specialty of surgery, he was well-qualified to testify about the standard of care in the placement of the catheter. Dr. Podgorny is an emergency room doctor. However, he is Board certified in surgery and regularly inserts central venous catheters. Dr. Podgorny testified numerous specialists place these catheters, such as internists, surgeons, anesthesiologists, etc. He further testified the placement of these catheters is a relatively common procedure. We hold the trial court did not err in qualifying Dr. Podgorny.

The trial court refused to allow two other witnesses to testify as to the standard of care in placement of the catheters. He, however, did allow them to testify as to the ideal placement of these catheters. Dr. Pearson alleges this was error. However, other experts and Dr. Pearson testified about the ideal placement of the catheter. Therefore, even if admission of this evidence was error, it was harmless since it is merely cumulative to other evidence. State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978).

Dr. Pearson then alleges the trial court erred in admitting the manufacturer inserts which are packaged with the catheters. Dr. Pearson argues the inserts can not establish the proper standard of care. The package inserts, however, were not offered to establish the standard of care. They were introduced to support a punitive award by showing Dr. Pearson's awareness of the conditions which might be caused by improper placement of the catheter. Furthermore, Dr. Pearson testified he was aware of the risks stated in the inserts. Therefore, if admission of the inserts was error, it was harmless since it was merely cumulative to other evidence. Blackburn, supra.

2) Due Process

Dr. Pearson alleges the punitive damages awards violate due process because they are not supported by the evidence. In order for the McGees to recover punitive damages, there must be evidence Dr. Pearson's conduct was wilful, wanton, or in reckless disregard of the plaintiffs' rights. A conscious failure to exercise due care constitutes wilfulness. McCourt v. Abernathy, 318 S.C. 301, 457 S.E.2d 603 (1995); Scott v. Fruehauf Corp., 302 S.C. 364, 396 S.E.2d 354 (1990). First, Dr. Pearson contends there is no evidence of recklessness to support the punitive damages award. We disagree.

This issue is procedurally barred as Dr. Pearson failed to raise it below. Degenhart v. Knights of Columbus, 309 S.C. 114, 420 S.E.2d 495 (1992). In any event, on the merits, there was testimony Dr. Pearson should have re-positioned the catheter. Dr. Pearson argues he carefully weighed the risks of re-positioning the catheter and decided to leave it in its original position. Dr. Pearson may have made a conscious decision to leave the catheter in its original position. However, this conscious decision does not mean he acted without wilfulness or recklessness. There was evidence to establish recklessness because several experts testified moving the catheter posed no risks.

Dr. Pearson also alleges there was no evidence of his ability to pay the punitive awards. The ability to pay is only one thing which the jury can consider. Evidence of ability to pay...