National Bank of Commerce v. Quirk

• Decision Date: 18 March 1996
• Docket Number: No. 94-575,94-575
• Citation: 918 S.W.2d 138,323 Ark. 769
• Court: Arkansas Supreme Court
• Parties: , Medicare & Medicaid Guide P 44,424 NATIONAL BANK OF COMMERCE, William E. Golden, M.D., and Kimberly A. Golden, M.D., Co-Guardians of the Estate of Emily Jane Golden, Arkansas Department of Human Services, Appellants, v. J. Gerald QUIRK, M.D., Gaylon L. Brunson, M.D., Vikki A. Stefans, M.D., Bernadette Lange, M.D., Richard E. Leitheiser, Jr., M.D., William M. Chadduck, M.D., Diane R. Edwards, M.D., Karen Everett, M.D., Janice W. Allison, M.D., W. Mark Molpus, M.D. and American Physician's Insurance Exchange, Appellees.

Page 138

918 S.W.2d 138

323 Ark. 769, Medicare & Medicaid Guide P 44,424

NATIONAL BANK OF COMMERCE, William E. Golden, M.D., and Kimberly A. Golden, M.D., Co-Guardians of the Estate of Emily Jane Golden, Arkansas Department of Human Services, Appellants, v. J. Gerald QUIRK, M.D., Gaylon L. Brunson, M.D., Vikki A Stefans, M.D., Bernadette Lange, M.D., Richard E Leitheiser, Jr., M.D., William M. Chadduck, M.D., Diane R Edwards, M.D., Karen Everett, M.D., Janice W. Allison, M.D W. Mark Molpus, M.D. and American Physician's Insurance Exchange, Appellees.

No. 94-575.

Supreme Court of Arkansas.

March 18, 1996.

Appeal from Pulaski County, Circuit Court, No. 92--5822; Hon. Chris Piazza, Judge.

David Hodges, Bernard Whetstone, Bob Davidson, Richard N. Dahlgren, Little Rock, for Dept. of Human Serv.

J. Phillip Malcom, Tonia P. Jones, Little Rock, for J. Gerald Quirk.

Ken Cook, Brian Allen Brown, Little Rock, for J.W. Allison, W. Mark Molpus and Richard E. Leithiser.

Edwin L. Lowther, Jr., Little Rock, for Vikki A. Stefans, Bernadette Lange and Karen Everett.

ROAF, Justice.

This is a medical malpractice case. The appellants are the co-guardians of Emily Jane Golden ("guardians") and the Arkansas Department of Human Services ("ADHS"), which provided medical benefits to her. The appellees are ten physicians employed by the University of Arkansas for Medical Sciences ("UAMS"), including two who treated Emily Golden's mother, Kim Golden, during her pregnancy and delivery, Drs. J. Gerald Quirk and Gaylon L. Brunson, and eight others who provided medical treatment to Emily after her birth. Appellee American Physicians Insurance Exchange, ("APIE") is the malpractice carrier for the physicians. The guardians filed suit against the physicians, alleging that Emily Golden suffered injuries as a result of negligence during her delivery and in the failure to subsequently diagnose her birth injuries. The trial court granted summary judgment to two of the physicians and dismissed the complaint as to one physician during the trial; a jury returned a verdict in favor of the remaining physicians. The guardians appeal the denial of their motion for new trial and the orders granting the summary judgments and dismissal. ADHS appeals the denial of its motion to intervene. We agree that the trial court erred in excluding the depositions of two of the guardians' obstetrical experts and in denying ADHS's motion to intervene. We affirm in part and reverse and remand for new trial as to Drs. Quirk and Brunson, and to allow the intervention of ADHS.

Emily Jane Golden was born at the UAMS hospital on October 3, 1985. This action was commenced on October 26, 1992, after Emily's parents obtained a diagnosis that she suffered a spinal cord injury at birth. Dr. Kim Golden, Emily's mother, had asked Dr. J. Gerald Quirk, an obstetrician on the UAMS medical school faculty, to handle her pregnancy and delivery. Emily was delivered approximately seven and a half months into the pregnancy. Dr. Quirk elected to perform a vaginal delivery rather than a cesarian section, and he used forceps during the delivery. Another obstetrician, Dr. Gaylon L. Brunson, had examined Kim Golden during her premature labor while Dr. Quirk was out of town. The Goldens contend that Emily's spinal cord was stretched at birth, and that her vertebra may have been fractured. They further contend that the remaining physicians named in the lawsuit, also UAMS employees or residents at the time, were negligent in failing to discover the extent of Emily's injuries. The child was ultimately diagnosed as having a spinal cord injury, as opposed to cerebral palsy, when she was 7 years of age. The Goldens also sued APIE pursuant to the Arkansas Direct Action statute, as insurer of the state employee physicians. The trial court granted APIE's motion to dismiss prior to trial, granted summary judgment to two of the physicians who examined Emily after her birth, Drs. Allison and Molpus, and dismissed the complaint during the trial as to Dr. Everett, another physician who examined Emily. The appellant ADHS moved to intervene pursuant to Ark.Code Ann. § 20-77-304 (Repl.1991) in order to recover medicaid benefits paid on behalf of Emily after her medical insurance had been exhausted. The trial court denied the motion on the basis that ADHS's claims were derivative of Emily's parents' claims for recovery of her medical expenses, and those claims were time barred.

1. Exclusion of deposition testimony

The guardians first contend that the trial court improperly excluded depositions of two of their experts contrary to the rules of civil procedure. This issue bears only on the case against Drs. Quirk and Brunson because the excluded expert testimony concerned only the issue of their negligence in treating Kim Golden during her labor and delivery. After the original complaint was filed, APIE filed a motion for a pretrial scheduling order requesting that it be allowed to take the discovery depositions of the guardians' expert witnesses prior to and in a separate proceeding from any evidentiary depositions. The guardians' counsel objected that the rules of civil procedure did not distinguish between discovery and evidentiary depositions and asserted they would not waive the wording of Ark.R.Civ.P. 32.

At a hearing on the motion, the guardians again argued the rules of civil procedure did not distinguish between discovery and evidentiary depositions. The trial court entered a scheduling order which provided that the defendants were entitled to take "discovery" depositions of all the plaintiffs' expert witnesses and that the depositions "shall not be used as direct testimony at trial unless the witness is deceased." The order further provided that, if it was determined that a witness would be otherwise unavailable to attend trial, "plaintiff shall notify all defense counsel so that an evidentiary deposition can be scheduled subsequent to and in a separate proceeding from the discovery deposition."

Prior to the start of the trial, the guardians filed motions seeking permission to read at trial the depositions of Dr. Frank Miller, who had been present during Kim Golden's labor, and Dr. Melvyn J. Ravitz, both experts for the case against Drs. Quirk and Brunson. The motions asserted that Dr. Miller's deposition was taken at his office in Lexington, Kentucky, and that Dr. Ravitz was an obstetrician in Manasquan, New Jersey. The motion further stated Dr. Ravitz was suffering from a medical problem and was unable to attend the trial. The trial court denied the guardians' motion to introduce the depositions of Dr. Ravitz and Dr. Miller based on the pretrial order. The trial court found that exceptional circumstances did not exist in the case of Dr. Ravitz and appellees were not given notice pursuant to the pretrial order that Dr. Miller's deposition was to be an evidentiary deposition. We agree that the trial court erred in excluding the depositions.

Rule of Civil Procedure 32 provides in part:

(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions: ...

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: ...

(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; ....

There is no dispute that both Dr. Miller and Dr. Ravitz were out of state at the time of trial. There is no allegation that the absence of either expert was procured by the appellants. Rule 32 clearly provides for the admission of both depositions.

Drs. Quirk and Brunson assert that the trial court properly denied admission of the depositions for failure to comply with the pretrial order. They rely upon Ark.R.Civ.P. 26, General Provisions Governing Discovery, which provides in part:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which he is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate. (Emphasis added.)

Drs. Quirk and Brunson assert that Rule 26(b)(4)(A)(ii) allows the trial court discretion to distinguish between discovery and evidentiary depositions.

However, this Court has clearly stated that Rule 32 does not distinguish between discovery and evidentiary depositions. Whitney v. Holland Retirement Ctr., 323 Ark. 16, 912 S.W.2d 427 (1996). We stated that the rule has been construed to provide that any party, not only the party who took the deposition, may use the deposition of a witness, whether or not a party, for any purpose at the trial or hearing, if the party demonstrates to the court the existence of one of the...