Menschik v. Heartland Reg'l Med. Ctr.

• Decision Date: 18 July 2017
• Docket Number: WD 79494
• Citation: 531 S.W.3d 551
• Parties: Lisa MENSCHIK, Appellant, v. HEARTLAND REGIONAL MEDICAL CENTER, et al., Respondents.
• Court: Missouri Court of Appeals

531 S.W.3d 551

Lisa MENSCHIK, Appellant,

v.HEARTLAND REGIONAL MEDICAL CENTER, et al., Respondents.

WD 79494

Missouri Court of Appeals, Western District.

Opinion filed: July 18, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied September 5, 2017

Application for Transfer Denied November 21, 2017

Herbert W. McIntosh, for Appellant.

Ronald D. Marney, Lloyd J. Bandy, Jr., for Respondents.

Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge

EDWARD R. ARDINI, JR., JUDGE

Lisa Menschik (Menschik) appeals from a judgment for the Respondents on her claims of medical malpractice. Menschik argues that the trial court erred in denying admission of certain exhibits and limiting questioning of a defense expert, in making comments from the bench when ruling on objections, and in prohibiting testimony from her expert relating to the standard for performing a "stat" MRI. Finding no error, we affirm.

Factual and Procedural Background

On March 22, 2010, Menschik presented at Heartland Clinic Comprehensive Family Care in St. Joseph complaining of severe pain radiating into her thoracic spine, chest, arms, and legs, as well as dysphagia

. Menschik was seen by Dr. Robert Kempton, who took her history and ordered chest x-rays, laboratory testing, and CT scans of her cervical and thoracic spine and chest. Dr. Kempton sent Menschik to the radiology department at Heartland Regional Medical Center (HRMC) to undergo the CT scans. She was admitted to HRMC the same day for further treatment by Dr. Kempton after initial testing revealed a markedly elevated white blood count.

At HRMC, Menschik underwent radiological studies performed by Dr. Jose Alvarez. Dr. Alvarez interpreted Menschik's cervical CT scan

as revealing prevertebral soft tissue swelling indicating possible abscess formation; however, metal implants in Menschik's neck from a previous procedure created artifacts that prevented him from accurately seeing on the CT scan an area of swollen tissue where a spinal epidural abscess was forming. Dr. Alvarez also interpreted Menschik's neck CT scan as showing a collection of fluid starting slightly above her Adam's apple and continuing down into her chest area, which he concluded to be a retrotracheal and retropharyngeal abscess, though he was unable to determine if the infection "tracked" from the neck to the chest or vice versa.

After learning of Dr. Alvarez's interpretations, Dr. Kempton requested consultations from other doctors including Dr. Robert Zink (a cardiothoracic surgeon), Dr. David Kropf (an otorhinolaryngologist, or ENT), and Dr. Brent Peterson (a neurosurgeon). Dr. Kropf and Dr. Zink examined Menschik that night and recommended surgery to drain the retrotracheal and retropharyngeal abscesses

, while Dr. Peterson waited until the following morning to see her. Menschik underwent surgery to drain the abscesses followed by a second surgery to drain an anterior chest wall abscess and then finally a tracheostomy all performed by Dr. Zink and Dr. Kropf in the early hours of March 23. Menschik's condition deteriorated following her surgery and she began to experience decreased sensation and progressive weakness in her lower extremities, eventually becoming unable to move her legs.

Dr. Peterson was notified of Menschik's deteriorating condition at approximately 6:45 a.m., prompting him to order an MRI. He received those results at 10:51 a.m. The MRI indicated a large disc herniation at C6-C7 with edema or epidural extension of an abscess

that was compressing her spinal cord. He recommended surgery to clear the infection that was compressing Menschik's spinal cord, removal of the anterior cervical plates at the C4-C5 and C5-C6 levels, and an anterior cervical discectomy and fusion at the C6-C7 level. Surgery began at 3:56 p.m. and was completed without incident. Menschik was required to undergo physical therapy but eventually regained the ability to walk, though some complications remained.

Menschik filed suit against Dr. Alvarez, Dr. Kropf, and Dr. Peterson claiming that they had individually and cumulatively been responsible for the delay in the diagnosis and eventual surgery to drain her epidural abscess

and that, as a result, she suffers present-day deficiencies. Specifically, she claimed that Dr. Alvarez had been negligent in failing to inform Dr. Kempton regarding the possibility that the retropharyngeal abscess was tracking into her spinal epidural space or that an MRI should be considered to exclude the possibility of a spinal epidural abscess ; that Dr. Kropf was negligent in failing to obtain a complete medical history or perform an adequate neurological exam during the evening of March 22; and that Dr. Peterson was negligent for failing to conduct a neurological exam in the early morning of March 23, failing to order a "stat" MRI as opposed to a routine MRI on the morning of March 23, and delaying surgery until later in the day to allow for his "A team" to assemble.¹ The case proceeded to trial beginning on November 4, 2015. The jury returned verdicts for the Respondents. Menschik now appeals.

Testimony of Dr. Paul Young

Menschik's first point raised on appeal concerns her effort to impeach the testimony of defense expert Dr. Paul Young, a neurosurgeon from St. Louis, who testified to the standard of care owed Menschik and whether that standard had been breached by the Respondents. At trial, Menschik sought to show that Dr. Young harbored a bias against medical malpractice plaintiffs resulting from being a defendant in multiple such lawsuits during his career. She also attacked Dr. Young's character for truth and veracity based on Menschik's belief that he had understated the total number of medical malpractice lawsuits that had been brought against him. To that end, there was extensive cross-examination into Dr. Young's history of medical malpractice suits from his former practice in California, his failed attempt to obtain a license to practice medicine in Colorado, and the details surrounding the expiration of his California medical license.² At the conclusion of the cross-examination, Menschik moved to admit two exhibits: an Accusation filed against Dr. Young by the California Board of Medical Quality Assurance seeking to discipline his license that included allegations related to malpractice suits brought by three former patients (Plaintiff's Exhibit 145), and the subsequent Decision and Stipulation entered into between Dr. Young and the California Board of Medical Quality Assurance in which Dr. Young agreed not to renew his California medical license and to forgo reapplication for five years in exchange for the withdrawal of the Accusation (Plaintiff's Exhibit 146). The trial court denied the admission of both documents.

In her first point on appeal, Menschik claims two distinct errors relating to Dr. Young's testimony: (A) the trial court erred in denying admission of Plaintiff's Exhibits 145 and 146, and (B) the trial court erred in denying Menschik the opportunity, on recross-examination, to question Dr. Young regarding the details of the medical malpractice allegations included in Plaintiff's Exhibits 145 and 146.³ We review the decision of a trial court to admit or exclude evidence for an abuse of discretion. Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015). "An evidentiary ruling is an abuse of discretion only if it is ‘clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.’ " Reed v. Kansas City Missouri School District, 504 S.W.3d 235, 240 (Mo. App. W.D. 2016) (quoting Cox, 473 S.W.3d at 114 ). "Moreover, in reviewing the exclusion of evidence in general, this court is not bound ‘by the rationale for the objection made or the reasons expressed by the trial court for excluding the evidence.’ " Hemeyer v. Wilson, 59 S.W.3d 574, 580 (Mo. App. W.D. 2001) (quoting Aliff v. Cody, 26 S.W.3d 309, 314–15 (Mo. App. W.D. 2000)). Consequently, we will uphold the trial court's ruling "when there exists any recognizable ground on which the trial judge could have rejected the evidence." Wilson, 59 S.W.3d at 580 (quoting Cody, 26 S.W.3d at 315 ).

A. Plaintiff's Exhibits 145 and 146

We begin our analysis with the trial court's ruling denying admission of Plaintiff's Exhibits 145 and 146. Menschik argues that the trial court erred because these exhibits were admissible to establish Dr. Young's bias, impeach his character for truth or veracity as prior inconsistent statements, and as contradiction evidence. We will consider each of these arguments individually.

i. Bias

It is well settled under Missouri law that a witness may be impeached on cross-examination through the use of evidence demonstrating the witness's bias, interest, or prejudice. Mitchell v. Kardesch, 313 S.W.3d 667, 676 (Mo. banc 2010). A witness's bias or interest toward a party is never irrelevant and a witness may be cross-examined on any point, whether material to the substantive issue of the trial or not, if it shows the existence of bias. Id. In the present case, Menschik attempted to demonstrate that Dr. Young held a bias against medical malpractice plaintiffs generated from having been repeatedly sued for committing medical malpractice himself. In order to prove the existence of this bias, Menschik questioned Dr. Young at length regarding these prior lawsuits. On appeal, she argues that Plaintiff's Exhibits 145 and 146 should have been admitted as further proof of Dr. Young's bias.

At trial, Dr. Young initially asserted that he had only been sued five times for medical malpractice. However, Menschik was permitted, over Respondent's objection, to question Dr. Young regarding an interrogatory response filed in a malpractice case brought in California in which he stated that he had previously been sued nine times. Dr....