Nash v. Cosby

• Decision Date: 20 July 1990
• Citation: 574 So.2d 700
• Parties: Deborah NASH v. Dr. Joseph COSBY and Dr. Wilheim Tietke. 88-1068.
• Court: Alabama Supreme Court

Page 700

574 So.2d 700

Deborah NASH v. Dr. Joseph COSBY and Dr. Wilheim Tietke.

88-1068.

Supreme Court of Alabama.

July 20, 1990.

As Modified on Denial of Rehearing Jan. 11, 1991.

Robert H. Ford of Brinkley, Ford, Chesnut & Aldridge, Huntsville, for appellant.

James E. Davis, Jr. and William W. Sanderson, Jr. of Lanier, Ford, Shaver & Payne, Huntsville, for appellee Dr. Joseph Cosby.

Patrick M. Lamar of Lanier, Ford, Shaver & Payne, Huntsville, for appellee Wilheim Tietke, M.D.

HORNSBY, Chief Justice.

Plaintiff, Deborah Nash, appeals from a jury verdict in favor of defendants, Dr. Joseph Cosby and Dr. Wilheim Tietke, in a medical malpractice action. We reverse and remand for further proceedings consistent with this opinion. The record reveals that Nash has suffered from medical problems associated with her colon and rectum and that she began receiving treatment for those problems as early as 1963. On April 22, 1986, Nash consulted Cosby, who diagnosed her as having a severe urinary tract infection. Cosby had knowledge of her prior medical history and admitted her to Huntsville Hospital. While Nash was hospitalized for the urinary tract infection, Cosby called in Tietke for a consultation regarding her colon and rectal problems. Tietke made several recommendations, including a small bowel follow-through and an upper G.I. series to rule out Crohn's disease, both of which Cosby ordered. The radiology department at the hospital completed the small bowel follow-through and upper G.I. series, using a formula of barium sulfate on April 24, 1986. Dr. S.H. Falwell, a radiologist, determined that there were no contraindications to the upper G.I. test and that the test was negative for Crohn's disease. Nash was discharged by Cosby and was instructed to take Metamucil, a laxative, to assist her with bowel movements.

In June 1986, Nash went to Dr. LeWayne Lambert with a fecal impaction. He admitted her to Crestwood Hospital in Huntsville, where the impaction was removed nonsurgically. The fecal material in her colon contained 10%-20% of barium. In March 1987, Dr. Mark Carpenter performed a subtotal colectomy on Nash, removing approximately eight inches of her colon.

On May 19, 1987, Nash filed a complaint, alleging medical malpractice against Cosby relating to her oral ingestion of barium for the upper G.I. series and his failure to remove the barium, which she states was the reason for the subtotal colectomy. On April 22, 1988, Nash amended her complaint to state similar causes of action against Tietke, Huntsville Hospital, Marsha Daniell (a 4th-year medical student working at Huntsville Hospital), and Falwell. Huntsville Hospital, Daniell, and Falwell were dismissed from the lawsuit prior to trial. The case was tried before a jury, which returned a verdict in favor of Cosby and Tietke on February 1, 1989. This appeal is taken from the trial court's judgment based on that verdict.

Deferred Ruling on Nash's Motion in Limine

Prior to trial, Nash filed a motion in limine to preclude the defendants from eliciting testimony concerning information contained in her medical records about a drug screening test and the results thereof. The trial court, after hearing argument by counsel, admonished the defendants to refrain from discussing the drug screening test until a voir dire hearing by the court could be held to determine its admissibility. The trial court deferred ruling on Nash's motion in limine until evidence was presented by the parties.

Nash argues that it was an abuse of discretion for the trial court to defer its ruling on her motion in limine and, specifically, argues that the trial court's deferring its ruling prejudiced her because, as a result of it, she was forced to disclose the drug screening test evidence during jury selection and direct examination. We disagree with Nash's argument.

It is well recognized that only adverse rulings by the trial court are reviewable on appeal. See Lewis v. Providence Hospital, 483 So.2d 398 (Ala.1986). Because the trial court deferred its ruling, there is no adverse ruling for review. Although Nash cites C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1, 15 (1981), as supporting her position, we find that a close review of the article supports the trial court's exercise of discretion:

"Most courts addressing the issue have concluded that a trial judge does not commit reversible error when he denies or overrules a motion in limine. Indeed, a trial judge's decision to take the motion under advisement until the matter arises at trial or simply to refuse to entertain the motion at all is generally deemed not to constitute reversible error. Considerable discretion is vested in the trial court regarding these matters. Consequently, in order to show reversible error, the unsuccessful moving party has the nearly insurmountable task of proving that the trial judge abused his discretion. Filing a motion in limine has its advantages as discussed earlier in this article, but the motion is unlikely to be valuable as grounds for reversal on appeal."

We find no abuse of discretion and therefore no reversible error in the trial court's deferring its ruling on Nash's motion in limine until the matter arose at trial.

Noncompliance with Pretrial Order; Refusal of Expert Testimony

Tietke called as a fact witness Dr. R.G. Danley, Jr., one of Nash's prior treating physicians. Danley was not named by any of the parties as an expert witness pursuant to the pretrial order entered June 30, 1988. During Nash's cross-examination of Danley, she attempted to elicit expert testimony, and Tietke objected on the ground that Nash had not named Danley as an expert witness pursuant to the pretrial order. The trial court sustained Tietke's objection and precluded Danley from testifying as an expert witness.

In Super Valu Stores, Inc. v. Peterson, 506 So.2d 317, 338 (Ala.1987), this Court stated:

"The refusal to permit expert witnesses to testify because of a party's failure to comply with the pre-trial order is clearly a matter of discretion not subject to reversal. Electrolux Motor AB v. Chancellor, 486 So.2d 414 (Ala.1986)."

We find no abuse of discretion by the trial court in refusing to allow a witness not previously named as an expert to give expert opinions. See Rules 16 and 26(b)(4), A.R.Civ.P.

Jury Charge

The trial court instructed the jury in its oral charge:

"Mrs. Nash claims that she suffered damages as a result of the alleged negligent act or acts of the defendants in rendering medical services to her. More specifically, she alleges that Dr. Tietke's consultation and resulting recommendation of an upper G.I. series with a small bowel follow-through was a negligent act. Also, she alleges more specifically that when Dr. Cosby caused to be performed on her an upper G.I. series with small bowel follow-through, that this was a negligent act. She further alleges that as a result of those negligent acts, she suffered an impaction in June of 1986, and that this impaction caused her to suffer the removal of her colon eight months later in March of 1987."

Nash objected to the trial court's oral charge, arguing that it was incorrect and incomplete. Specifically, Nash claimed that the jury charge did not include her claims against Cosby and Tietke for their failure to remove the barium and their failure to warn her concerning the need to expel the barium. The record shows that this objection was made after the jury retired to begin its deliberations; thus, the objection was untimely. See Rule 51, A.R.Civ.P. See, also, Hancock v. City of Montgomery, 428 So.2d 29 (Ala.1983).

Hypothetical Questions to Experts

Nash claims that the trial court erred by disallowing certain hypothetical questions posed to her expert witness, Dr. Neil J. Farber. We agree.

For the sake of clarity, we quote the hypothetical questions Nash asked of Dr. Farber that she claims were improperly refused by the trial court:

"Q Now, would you, please, further assume, Dr. Farber--and this is taken from--this--I'll read paragraph by paragraph, if it please the court, taken from the physician's notes, KUB report, physician's progress notes, consult notes from Dr. Swartz [consulting gynecologist], and discharge summary of the Crestwood Hospital. According to the note by Dr. Lambert on 7-1-86, 'The abdominal mass appears to be reduced to retain barium from last hospitalization one (1) month prior to admission.' On 7-2-86, Dr. Lambert ordered Deborah to take GoLytely. However, this did not result in formed stool being--

"THE COURT: Mr. Ford, would you slow down?

"Q --passed. Dr. Lambert noted that on July 4, 1986, he might, 'have to consider surgical removal of barium impaction since it has been there three (3) months.' On 7-5-86, Dr. Lambert noted, 'Doubt that amount of barium and degree of impaction will resolve short of surgical intervention. Apparently this bolus is evident on X-ray as early as April the 24th, 1986.' By 7-14-86, there had been, 'Almost total removal of the barium containing fecal impaction.' Therefore, the barium impaction was inside Deborah from 4-24-86 to 7-14-86, or approximately 11 weeks. Deborah suffered from cervical and uterine prolapse as a result of the barium fecal impaction. She also suffered from cystocele. On 7-16-86, a colonoscopic procedure was performed which revealed, 'And the rectosigmoid multiple deep ulcerations were noted with exudative bases.' Further assume that Deborah was discharged from Crestwood Hospital on 7-21-86 after spending 25 days in the hospital. The discharge summary of Dr. Lambert listed discharge diagnosis as: '# 1--mechanical bowel obstruction, # 2--barium and fecal impaction, # 3-chronic constipation, # 4--mild dehydration, # 5--uterine prolapse, # 6--cystocele, # 7--history of recurrent urinary tract infections, # 8--history of recurrent perirectal abscess.' Dr. Lambert stated that, 'Deborah developed the uterine prolapse...