McMunn v. Tatum

• Decision Date: 21 April 1989
• Docket Number: No. 870115,870115
• Citation: McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989)
• Parties: Michael O. McMUNN v. Charlotte A. TATUM. Record
• Court: Virginia Supreme Court

Page 908

379 S.E.2d 908

237 Va. 558

Michael O. McMUNN v. Charlotte A. TATUM.

Record No. 870115.

Supreme Court of Virginia.

April 21, 1989.

W. Kennedy Simpson (Murray H. Wright, Wright, Robinson, McCammon, Osthimer & Tatum, Richmond, on briefs), for appellant.

Thomas W. Williamson, Jr. (Carolyn C. Lavecchia, Emroch & Williamson, Richmond, on brief), for appellee.

Present All the Justices.

RUSSELL, Justice.

Three questions are presented by this appeal from a plaintiff's judgment in an action for dental malpractice: (1) whether the court erred in limiting the dentist's evidence concerning other patients treated on the day of the alleged malpractice; (2) whether it was error to preclude an expert witness from relating, as the basis for his opinion, the hearsay opinions of others; and (3) whether it was error to admit proof of plaintiff's medical bills without foundation evidence that they were a necessary consequence of the defendant's negligence.

I. EVIDENCE

Charlotte A. Tatum, a registered nurse, consulted Michael O. McMunn, a licensed dentist practicing general dentistry in Henrico County, in September 1984. After several treatments for dental pain, Dr. McMunn recommended extraction of the first molar in Mrs. Tatum's left mandible. Mrs. Tatum gave Dr. McMunn a medical history of collagen vascular disease, continuing therapy on prednisone, a steroid drug having adverse effects upon the body's immune system, and a history of prolonged bleeding after surgical procedures.

Mrs. Tatum, accompanied by her husband, went to Dr. McMunn's office on September 10, 1984, for the extraction. Their testimony was that the procedure lasted from noon until approximately 2:30 p.m., although Dr. McMunn's testimony was that it lasted 30 to 40 minutes. Mrs. Tatum contends that the appropriate standard of care was violated in part because the length of the procedure, which should not have exceeded 45 minutes, subjected her to excessive trauma. She also takes the position that Dr. McMunn was negligent in undertaking the procedure in his office, in view of her medical history. She contends that the appropriate standard of care required referral to an oral surgeon. It is undisputed that the tooth broke during extraction, leaving a large part of the root in the socket, and that this root was broken into fragments by the use of burrs and was removed by picks.

Mrs. Tatum experienced pain and recurrent bleeding at the wound site after the operation. She was treated as an outpatient and was admitted to the Medical College of Virginia for further oral surgery. In November 1984, she developed osteomyelitis, an infection of the bone, and was re-admitted to the hospital for removal of a part of her left mandible. When those procedures failed to cure her osteomyelitis, she was referred to a physician at Duke University Medical Center, where she was admitted on three separate occasions for periods aggregating about four months. Her treatment during those periods included antibiotic therapy, two surgical removals of infected bone, removal of two additional teeth, and approximately 80 hyperbaric oxygen treatments. Her medical, pharmaceutical, and hospital bills exceeded $100,000.

Mrs. Tatum brought this action against Dr. McMunn for professional malpractice, alleging that her suffering and expenses were the proximate results of his negligence. After a ten-day trial, the jury returned a $350,000 verdict in her favor upon which the court entered judgment. We awarded Dr. McMunn an appeal.

II. EVIDENCE CONCERNING OTHER PATIENTS

As noted above, Mrs. Tatum contended that Dr. McMunn was negligent in that the extraction procedure he employed lasted approximately two and one-half hours, a time interval partly corroborated by her husband's testimony. She introduced expert testimony to the effect that the appropriate standard of care required the procedure to be completed in 30-45 minutes. The length of time is significant because a longer time subjects the patient to unwarranted trauma, opening the way to subsequent complications. Dr. McMunn testified that the actual surgical procedure lasted no longer than 40 minutes, although Mrs. Tatum was undoubtedly in his office for a much longer time, awaiting the effects of anesthesia and recovering from anesthesia.

In discovery proceedings before trial, it became apparent to plaintiff's counsel that although the Tatums claimed that Mrs. Tatum had been in Dr. McMunn's office from 12:00 noon to 2:30 p.m., Dr. McMunn would testify that she came earlier and left by 12:07 p.m. Dr. McMunn also said that he had seen 15 other patients in his office on September 10, 1984. Plaintiff's counsel sought discovery of Dr. McMunn's appointment book for that day, but the defense responded that the book in question was missing, although earlier appointment records were available. Plaintiff's counsel then sought discovery of Dr. McMunn's computerized billing records for the day in question, and requested a description of the services rendered and the time of rendition to each patient named on the day's billing record. After receiving this information, plaintiff's counsel advised Dr. McMunn of his intent to interview two of the patients, Mrs. Porter and Mrs. Hare, who had been in the office between 12:00 noon and 2:30 p.m.

Defense counsel sought a protective order limiting communication between plaintiff's counsel and Mrs. Porter and Mrs. Hare, and preventing contact with all other patients since they were irrelevant to the case. The court entered a protective order limiting plaintiff counsel's contact with Mrs. Porter and Mrs. Hare to written questions relayed through defense counsel concerning the time periods they had been with Dr. McMunn on September 10, 1984. In response to the questions relayed through defense counsel, neither Mrs. Porter nor Mrs. Hare, two years after the event, could recall the periods of time spent with Dr. McMunn on September 10, 1984. One stated that she arrived about 12:30 p.m.; the other, about 2:00 p.m. Both stated that they could recall nothing unusual that day.

At trial, Dr. McMunn sought to testify that he could not have been engaged in the extraction procedure from 12:00 noon until 2:30 because he was working on other patients during a large part of that time. Plaintiff's counsel moved to exclude the testimony on the ground that Dr. McMunn should be limited to the same evidence to which the protective order had limited the plaintiff--the inconclusive statements of Mrs. Porter and Mrs. Hare. The court granted the motion, ruling that the limitations imposed by the protective order, which Dr. McMunn had sought, in combination with Dr. McMunn's representation that the visits of all other patients were irrelevant, reduced the area of relevancy to the visits of the two patients named.

The statements of those patients failed to disclose whether they were ever seen by Dr. McMunn personally, or treated by someone else in his office. Further, in a hearing outside the jury's presence, Dr. McMunn testified, in effect, that he had no direct recollection of the times spent with individual patients on the day in question, that the relevant appointment book would have been the best evidence, but it had disappeared, and that he had endeavored to reconstruct the events of the day from his billing records. He said that all patients' problems were different, and that there was no fixed office routine which governed his work. Thus, he could not extrapolate from the billing records what he had been doing between noon and 2:30 p.m.

We do not think the court's exclusion of the proffered testimony amounted to an abuse of discretion. The question presented is one of relevancy. We have defined as relevant "every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue." Va. Real Estate Comm. v. Bias, 226 Va. 264, 270, 308 S.E.2d 123, 126 (1983). Nevertheless, the application of that criterion to proffered evidence involves the exercise of the trial court's discretion. Peacock Buick v. Durkin, 221 Va. 1133, 1136, 277 S.E.2d 225, 227 (1981). In the circumstances of this case, it was well within the scope of that discretion to determine that Dr. McMunn's proffered testimony would have no tendency to establish either the probability or the improbability of the fact in issue.

III. HEARSAY AS BASIS FOR EXPERT OPINION

During the two months before her admission to Duke, Mrs. Tatum was treated by Dr. Ghulam Qureshi, a hematologist practicing at the Medical College of Virginia. During the course of his treatment, Dr. Qureshi attributed the patient's continued bleeding to a platelet disorder known as von Willebrand's disease. At trial, however, he was called as an expert witness for Dr. McMunn. He then testified that he had changed his opinion and had come to the conclusion that Mrs. Tatum's bleeding was not caused by any organic disease but was self-induced. He told the jury that he thought the bleeding was caused by Mrs. Tatum's mechanical abuse of the wound with her finger or a toothbrush, and that he had ruled out the existence of von Willebrand's disease.

Plaintiff's counsel objected to this testimony. In a hearing outside the jury's presence, Dr. Qureshi said that his opinion was partially based upon a record of Mrs. Tatum's treatment for iron deficiency anemia at the Mayo Clinic in 1981, where a physician had appended a note raising "the possibility of a factitious disease, you know, self-induced...." The physician at Mayo was quoted as having said, in his note, "There are patients who like to be patients." Dr. Qureshi also referred to an entry in the medical records at Duke, relating that a nurse there had seen Mrs. Tatum insert her fingers into her mouth. ¹

The court ruled that Dr. Qureshi could state his opinion that Mrs. Tatum's injuries were self-inflicted, and could rely on the medical records from the Mayo Clinic and Duke with respect to...