Mizell v. Glover

Citation351 S.C. 392,570 S.E.2d 176
Decision Date03 September 2002
Docket NumberNo. 25527.,25527.
CourtUnited States State Supreme Court of South Carolina
PartiesJudy MIZELL and John Mizell, Petitioners, v. Dr. Alfred L. GLOVER and Alpine Podiatry Center, P.A., Respondents.

Randall M. Eason, of Lancaster, and Gilbert Scott Bagnell, of Columbia, for petitioners.

Montieth P. Todd, of Sowell, Todd, Laffitte, Beard & Watson, L.L.C., of Columbia, for respondents.

CHIEF JUSTICE TOAL:

Judy and John Mizell ("Mizells") appeal the Court of Appeals' decision affirming the jury's verdict for the defendants, Dr. Alfred L. Glover and Alpine Podiatry Clinic (collectively referred to as "Dr. Glover"), in this medical malpractice suit. Mizell v. Glover, 339 S.C. 567, 529 S.E.2d 301 (Ct.App.2000).

FACTUAL/PROCEDURAL BACKGROUND

On March 2, 1993, Mrs. Mizell visited Dr. Glover for the first time for pain resulting from corns on the fourth and fifth toes of her right foot. The pain began after she started a new job requiring her to stand for long periods of time. On March 11, 1993, just nine days after her first visit, Dr. Glover performed surgery to correct what he diagnosed as "hammertoes." The surgery involved removing the toe joints that were rubbing together and causing the corns, and then disconnecting the tendons to the fourth and fifth toes. Apparently, Mrs. Mizell was surprised to learn exactly what Dr. Glover had done after the surgery. According to her testimony, she believed Dr. Glover was going to file down the bones underneath the corns, not remove the bones, and believed she would be out of work for a few days, not six weeks' as she claims Dr. Glover informed her the day after surgery.

Following the hammertoe surgery, Mrs. Mizell testified she suffered from intense pain, including swelling, discoloration, and alternating differences in the temperature of her foot. These symptoms are reflected in some of Dr. Glover's notes although he seems to attribute them to her inability to tolerate medication for pain and inflammation. Mrs. Mizell continued to suffer pain around the toes already operated on, and, in addition, her second and third toes became painful. According to both Mrs. Mizell and Dr. Glover's accounts, these toes became increasingly contracted in the weeks following her first surgery. Dr. Glover believed the contraction of her second and third toes could be the cause of Mrs. Mizell's lingering pain. To alleviate that pain, on April 27, 1993, he performed a second surgery to release the contractures in the tendons, allowing the toes to return to their normal position.

After this second procedure, a painful lump developed on the bottom of Mrs. Mizell's foot. Her foot hurt so badly that she would not allow Dr. Glover to touch it. After examining an x-ray of her foot, Dr. Glover preliminarily diagnosed the bump as a Morton's Neuroma. On June 3, 1993, Dr. Glover performed exploratory surgery in which he confirmed the bump was a Morton's Neuroma and removed it. Although the Mizells appear to question whether the bump was a Morton's Neuroma, the pathologist who examined the tissue extracted from Mrs. Mizell's foot testified it was a Morton's Neuroma.

This third surgery provided little relief to Mrs. Mizell, and she continued to complain to Dr. Glover. Dr. Glover sent her to physical therapy around the first of June, but therapy provided no relief. On June 29, 1993, Dr. Glover referred Mrs. Mizell to her family physician, Dr. Still, to rule out any systemic problems, such as lupus or Raynaud's Disease, that could be causing her continued pain. In his letter to Dr. Still, Dr. Glover noted discoloration in Mrs. Mizell's foot and hypersensitivity to cold. On July 13, 1993, Mrs. Mizell returned to Dr. Glover, reporting that Dr. Still had eliminated the possibility of any vascular problems after a full work-up. Dr. Glover gave her a steroid injection in another attempt to resolve the pain, but it was unsuccessful. Finally, on July 27, 1993, Mr. Mizell stated he wanted to take his wife to see an orthopaedist in Charlotte, Dr. Gill. Dr. Glover sent a letter and all his records to Dr. Gill. On July 29, 1993, Mrs. Mizell visited Dr. Gill. He diagnosed "possible early [Reflex Sympathetic Dystrophy],"1 gave her a prescription for a custom-made orthopaedic shoe, and advised her to walk on her foot as much as possible. Dr. Gill scheduled Mrs. Mizell to return in two months. When she returned, Dr. Gill believed her condition had deteriorated, and he referred her to the Southeastern Pain Clinic for further diagnosis and treatment.

Mrs. Mizell received some treatment at the pain clinic for RSD (including sympathetic blocks), but testified she received no lasting relief from it. She stated the last treatment option the pain clinic gave her was to attach a stimulator box to a wire along her spine through which she might be able to control the pain. She and Mr. Mizell testified they declined the treatment because they were told it carried a risk of paralysis. Dr. Romanoff, an anesthesiologist at the Southeastern Pain Clinic, testified in his deposition (read at trial) that he believed Mrs. Mizell was totally disabled, but that she could have received some relief from the stimulator which she chose not to pursue.

In February 1996, the Mizells brought this medical malpractice and loss of consortium action against Dr. Glover. The Mizells alleged Dr. Glover committed malpractice, breaching the podiatrists' duty of care, by failing to diagnose Mrs. Mizell with RSD during his treatment of Mrs. Mizell. Mrs. Mizell claims she is totally disabled as a result of Dr. Glover's failure to diagnose the RSD. Dr. Glover denied the malpractice allegations and the case went to trial in December of 1997. The jury returned a verdict for Dr. Glover and the Mizells appealed. The Court of Appeals affirmed, and this Court granted certiorari. The following evidentiary issues are before this Court:

I. Are the Mizells entitled to a new trial because Dr. Glover's counsel cross-examined the Mizells' expert witness, Dr. Marne, extensively regarding a jury interrogatory from a separate civil suit against Dr. Marne, and then misstated that jury's finding in his closing statement?
II. Are the Mizells entitled to a new trial because the trial court refused to admit an article written by Dr. Glover's testifying expert, Dr. Buckholz, as an exhibit, but allowed the Mizells' counsel to publish portions of the article during cross-examination?
III. Are the Mizells entitled to a new trial because the trial court permitted a podiatrist, testifying as an expert for Dr. Glover, to comment on the treatment of a medical doctor at the Southeastern Pain Clinic?
LAW/ANALYSIS
I. Jury Interrogatory

The Mizells argue that Dr. Glover's attorney improperly questioned their expert, Dr. Marne, about a jury interrogatory from a separate civil suit against Dr. Marne. The Mizells contend the evidence of the jury's finding was extrinsic evidence prohibited under Rule 608(b) of the South Carolina Rules of Evidence ("SCRE"). The Mizells also argue that questions regarding the jury interrogatory were improper because the case was settled and the interrogatory did not represent a final judgment. We agree that the evidence of the jury's finding was improperly admitted.

The interrogatory in question arose out of a suit by Minnesota Mutual Life Insurance Company ("Minnesota Life") against Dr. Marne for making allegedly false statements regarding a personal disability claim he filed. At trial, a Florida jury was asked by interrogatory if Dr. Marne had made misrepresentations to his insurance company. The jury answered that he had. The jury was then asked if Dr. Marne committed fraud, and they answered that the fraud claim could not survive because of a statute of limitations problem. After the interrogatories were returned, the court entered judgment against Dr. Marne that did not include fraud. While a motion for a new trial was pending, the parties settled the matter. Accordingly, the Mizells argue there was no final judgment. At the Mizells' trial against Dr. Glover, Dr. Marne, a podiatrist, testified as an expert for the Mizells. The Mizells filed a motion in limine before trial to exclude any evidence relating to Minnesota Life's lawsuit against Dr. Marne. The court denied the motion, and the Mizells renewed their motion immediately before Dr. Marne's testimony.2 In arguing against the motion, Dr. Glover's counsel contended the interrogatory in question was admissible under Rule 608, SCRE3 "as a matter affecting the credibility of the witness." The court denied the motion again, stating it would allow questioning of Dr. Marne regarding the trial for impeachment purposes pursuant to Rule 608, SCRE.

The Court of Appeals' opinion on this issue was split. Judge Goolsby found the question regarding the jury interrogatory did not constitute extrinsic evidence. Mizell v. Glover, 339 S.C. 567, 529 S.E.2d 301 (Ct.App.2000). Judge Connor, joined by Judge Howard, found the issue was not preserved for review. Id. Although she declined to address the issue fully, Judge Connor stated she believed, even if the interrogatory was inadmissible extrinsic evidence, that the error was harmless in light of Dr. Marne's other testimony regarding the suit. Id.

Dr. Glover argues the Court of Appeals should be affirmed on this issue because it was not preserved for review. We disagree. In order to preserve an issue for appellate review, the issue must have been raised to and ruled upon by the trial court. Holy Loch Distributors Inc. v. Hitchcock, 340 S.C. 20, 531 S.E.2d 282 (2000); Wilder Corp. v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998). In this case, the Mizells raised this issue—exclusion of the evidence from the Minnesota Life suit—on two occasions. During the arguments on the second motion, Dr. Glover's counsel argued specifically that the interrogatory from the civil suit was admissible under Rule 608, SCRE. The trial...

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  • Rivera v. Lewis
    • United States
    • U.S. District Court — District of South Carolina
    • November 9, 2016
    ...to the objectionable testimony."). As a consequence, the objections were not preserved for direct appellate review. Mizell v. Glover, 570 S.E.2d 176, 180 (S.C. 2002) ("In order to preserve an issue for appellate review, the issue must have been raised to and ruled upon by the trial court.")......
  • State v. Douglas, 4075.
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    ...will not be reversed on appeal absent an abuse of discretion. State v. Myers, 359 S.C. 40, 596 S.E.2d 488 (2004); Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002); State v. Grubbs, 353 S.C. 374, 577 S.E.2d 493 (Ct. App.2003); State v. Henry, 329 S.C. 266, 495 S.E.2d 463 (Ct.App.1997); ......
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    ...will not be reversed on appeal absent an abuse of discretion. State v. Myers, 359 S.C. 40, 596 S.E.2d 488 (2004); Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002); State v. Grubbs, 353 S.C. 374, 577 S.E.2d 493 (Ct.App.2003); State v. Henry, 329 S.C. 266, 495 S.E.2d 463 (Ct. App.1997); ......
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    ...not be reversed on appeal absent an abuse of discretion. State v. Myers, 359 S.C. 40, 51, 596 S.E.2d 488, 494 (2004); Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002); State v. Grubbs, 353 S.C. 374, 577 S.E.2d 493 (Ct.App.2003); State v. Henry, 329 S.C. 266, 495 S.E.2d 463 (Ct.App.1997......
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17 books & journal articles
  • Published writings
    • United States
    • James Publishing Practical Law Books Is It Admissible? Part II. Documentary evidence
    • May 1, 2022
    ...treatise if an opponent of the expert witness establishes that the author of the article is a reliable authority. 6 Mizell v. Glover 570 S.E.2d 176, 351 S.C. 392 (2002). In a patient’s medical malpractice action against a physician, it was proper for the trial court to deny admission of an ......
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    • James Publishing Practical Law Books Archive Is It Admissible? - 2017 Documentary evidence
    • July 31, 2017
    ...treatise if an opponent of the expert witness establishes that the author of the article is a reliable authority. 6 Mizell v. Glover 570 S.E.2d 176, 351 S.C. 392 (2002). In a patient’s medical malpractice action against a physician, it was proper for the trial court to deny admission of an ......
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    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
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    ...do not fall within any exception to the hearsay rule, including the exception for public records. 6-13 HEARSAY §624.2 Mizell v. Glover , 351 S.C. 392 (S.C. 2002). An interrogatory answered by one jury should not be admissible in another trial to impeach the credibility of an expert’s testim......
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