Mitchell v. Kardesch

• Decision Date: 15 June 2010
• Docket Number: No. SC 90370.,SC 90370.
• Parties: Elizabeth MITCHELL, et al., Appellants, v. Milton KARDESCH, M.D., Respondent.
• Court: Missouri Supreme Court

313 S.W.3d 667

Elizabeth MITCHELL, et al., Appellants, v. Milton KARDESCH, M.D., Respondent.

No. SC 90370.

Supreme Court of Missouri, En Banc.

June 15, 2010.

COPYRIGHT MATERIAL OMITTED

Michael A. Gross, Law Offices of Michael A. Gross, St. Louis, for Appellants.

David P. Ellington, T. Michael Ward, Christine A. Vaporean and Teresa M. Young, Brown & James P.C., St. Louis, for Respondent.

LAURA DENVIR STITH, Judge.

Elizabeth Mitchell, along with her two minor children,¹ sued Dr. Milton Kardesch for medical malpractice, claiming that Dr. Kardesch deviated from the standard of care (1) in not appropriately evaluating, diagnosing and treating her husband, Ruben Mitchell, or referring him for treatment and (2) in not acting within the standard of care upon recording abnormalities in Mr. Mitchell's thallium stress test. Because much of the case would turn on whether the jury believed her or Dr. Kardesch's recitation of events, Mrs. Mitchell requested permission to ask Dr. Kardesch about his admission in his deposition that he had given a false answer in his sworn response to an interrogatory in this case about whether his license to practice medicine ever had been suspended, and to utilize the interrogatory answer and deposition if he denied what he had stated therein.

The trial court believed that the issue of Dr. Kardesch's inaccurate answer was not relevant or material to Mrs. Mitchell's claim and prohibited counsel from asking Dr. Kardesch about it or impeaching him with the interrogatory answer or deposition.² The jury found in favor of Dr. Kardesch on all counts. Mrs. Mitchell appeals. This Court reverses and remands for a new trial.

"It has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility . . . ." Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 6 (Mo.1970). To the extent State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000), and its progeny hold otherwise, they misinterpreted this Court's prior cases and should not be followed.

While the right to cross-examine a witness on the stand is subject to the trial court's discretion to weigh the probative value of the evidence against its prejudicial effect, State v. Freeman, 269 S.W.3d 422, 427 (Mo. banc 2008), here the plaintiffs offered to limit their questions so that the jury would not be aware of the reasons for the suspension. The probative value of showing that Dr. Kardesch allegedly was willing to give a false answer to this interrogatory to protect himself from embarrassment and the credibility of his deposition attempt to explain why he had done so were relevant to the jury's determination of whose account of events was most credible: his or Mrs. Mitchell's.

This Court also finds that the trial court erred in ruling that it would not permit plaintiffs to use Dr. Kardesch's deposition and interrogatory answers as extrinsic evidence should he deny their content at trial. The Court here formalizes the ad hoc exceptions to the bar on extrinsic evidence that were recognized for prior false accusations in cases such as Black v. State, 151 S.W.3d 49, 55 (Mo. banc 2004), and for evidence that bore strongly on plaintiff's essential soundness as a witness in cases such as Roberts v. Emerson Elect. Mfg. Co, 362 S.W.2d 579, 584 (Mo. 1962): where the relevance and probativeness of such evidence on the issue of the party's character for truth and veracity is so great that it would deprive the jury of evidence highly relevant to its resolution of material issues, extrinsic evidence is admissible, subject to the trial court's discretion to limit or exclude it so as to avoid undue prejudice. Here, the relevance of Dr. Kardesch's willingness to swear falsely in this very case is so relevant and probative on the central issue of whose version of the facts to believe that the trial court abused its discretion in entirely excluding it.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Response of Dr. Kardesch to Mrs. Mitchell's Call

On October 11, 2001, Ruben Mitchell awoke in the middle of the night clutching his chest after having a nightmare about death. After Mr. Mitchell left for work the following morning, Mr. Mitchell's wife, Elizabeth Mitchell, called the office of Dr. Milton Kardesch, who was Mr. Mitchell's general internist.

Speaking with Dr. Kardesch's medical assistant, Mrs. Mitchell relayed the previous night's episode. In her note documenting her conversation with Mrs. Mitchell, the medical assistant wrote: "October 11, 2001, Ruben Mitchell, diet; eats anything, night; sleep, nightmare, grabs chest, sleeps after work, never used to nap." The medical assistant did testify she made a note of the Mitchells' telephone number and drew a line on the message slip, later explaining at trial, "That line means that I went back to talk to Dr. Kardesch about this phone call." The parties dispute what occurred next. Because Dr. Kardesch raises a sufficiency of the evidence issue, the evidence is set out in detail.

Dr. Kardesch's medical assistant testified she had no specific recollection of Mrs. Mitchell's call. Neither she nor Mrs. Mitchell could recall if Mrs. Mitchell also had mentioned chest pain, but the medical assistant said that even had Mrs. Mitchell so indicated, her practice was not to write down such complaints. Instead, she said it was her general practice to "speak to the patient, get a phone number, go back and talk to Dr. Kardesch, and I would write down whatever Dr. Kardesch would tell me the patient should do."

Reviewing her own notes documenting both her call with Mrs. Mitchell and her related conversation with Dr. Kardesch, the medical assistant indicated the doctor believed Mr. Mitchell's symptoms might have been related to one of Mr. Mitchell's heart medications. This was corroborated by Dr. Kardesch's testimony that he told his assistant that a side effect of a beta-blocker taken by Mr. Mitchell included "bad dreams and nightmares." The assistant's notes also stated Dr. Kardesch's diagnosis was arteriosclerotic heart disease and to "rule out angina." The assistant said she did not recall Dr. Kardesch directly speaking on the telephone with Mrs. Mitchell.

Dr. Kardesch later testified that he remembered Mrs. Mitchell's telephone call regarding her husband because of the unique nature of "a phone call that involved grabbing at the chest and having a nightmare." Dr. Kardesch confirmed both that he did not speak directly with Mrs. Mitchell on the telephone on October 11, 2001, and that his diagnoses had been arteriosclerosis and to "rule out angina." He further stated that at the time of the call he believed Mr. Mitchell's symptoms simply pointed to a nightmare. Regardless, not wanting "to waste time" and feeling it was important that a patient with Mr. Mitchell's "past history" seek immediate medical care, Dr. Kardesch testified that he instructed his assistant to tell Ms. Mitchell "to get Mr. Mitchell over to the emergency room."

Dr. Kardesch's assistant conceded at trial that she had no recollection of telling Mrs. Mitchell to take her husband to the emergency room, and her note of the conversation does not contain that advice. She said she nonetheless thought she told Mrs. Mitchell to go to the emergency room because, "It was automatic that if a patient was having chest pain, they needed to go to the emergency room, and it was never written. It was just verbal."

Mrs. Mitchell flatly contradicted the medical assistant's assumption that she must have said to take Mr. Mitchell to the emergency room. Mrs. Mitchell said that she never was instructed to take her husband to the emergency room: "That did not happen. If they would have told me to take him anywhere, I would have taken him immediately." Mrs. Mitchell further testified that as her husband was a journeyman plumber with 28 years seniority, he was allowed to leave work for medical purposes and that he would have done so "immediately" if Dr. Kardesch's office had so directed. No one disputes that Mr. Mitchell did not go to the emergency room on October 11, 2001.

Dr. Donald Singer, a cardiologist and professor of medicine at the University of Illinois in Chicago, testified that Dr. Kardesch deviated from the standard of care in his management of Mr. Mitchell's medical treatment. Specifically, Dr. Singer testified that Dr. Kardesch should have spoken directly with Mrs. Mitchell to better understand Mr. Mitchell's symptoms, and, importantly to the facts of this case, Dr. Kardesch should have "shipped the patient off to the emergency room." Further, Dr. Singer testified that Dr. Kardesch needed to "get on this patient" and immediately order a series of tests, some of which were possible to complete within Dr. Kardesch's office. To a reasonable degree of medical certainty, Dr. Singer testified, Dr. Kardesch breached the standard of care in not following these procedures.

B. Delay in Ordering Stress Test

It is also undisputed that Dr. Kardesch ordered a thallium stress test at St. Joseph's Hospital, but it was not performed until October 22, 2001, a full 11 days after he decided that Mr. Mitchell needed to have a stress test. The reason for the delay is in dispute.

According to Dr. Kardesch, after instructing his medical assistant to direct Mrs. Mitchell to take her husband to the emergency room, Mrs. Mitchell made a follow-up call to the office stating that her husband "was at work feeling fine, that he had no further chest problems and no chest pain." Although this lessened Dr. Kardesch's suspicions of coronary artery disease, he testified that he next asked his assistant "to schedule a stress test" and thought the test "would just be done the next day . . . ." He further stated that it was "pretty rare" to have an occasion when St. Joseph's was not able to perform a stress test "within a day or two" if fitting with the patient's schedule and, if it could not, arrangements could be...