Patterson v. Hutchens, 940175

• Decision Date: 08 March 1995
• Docket Number: No. 940175,940175
• Citation: 529 N.W.2d 561
• Parties: Dawn M. PATTERSON, Plaintiff and Appellant, v. Thomas P. HUTCHENS, M.D., Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 561

529 N.W.2d 561

Dawn M. PATTERSON, Plaintiff and Appellant, v. Thomas P. HUTCHENS, M.D., Defendant and Appellee.

Civ. No. 940175.

Supreme Court of North Dakota.

March 8, 1995.

William P. Zuger, of Zuger Law Offices, Bismarck, for plaintiff and appellant.

William A. Strutz, of Fleck, Mather & Strutz, Bismarck, for defendant and appellee. Appearance by Robert J. Udland.

VANDE WALLE, Chief Justice.

Dawn M. Patterson appealed from a judgment dismissing her malpractice action against Thomas P. Hutchens, M.D., and awarding Hutchens costs and disbursements. We modify the judgment and affirm it as modified.

On January 5, 1990, Patterson went to Hutchens for treatment of vaginal spotting and pelvic pain. On January 8, 1990, Hutchens performed a diagnostic laparoscopy and a dilation and curettage. Hutchens performed a vaginal hysterectomy on March 7, 1990. Patterson's pain continued, and on September 19, 1990, Hutchens performed a bilateral oophorectomy. Patterson continued to experience pelvic pain. On May 1, 1991, Hutchens performed a laparoscopy for lysis of adhesions. On May 10, 1991, Hutchens advised Patterson that there was nothing wrong with her and advised her to discontinue further treatment.

Patterson sued Hutchens in August 1992, generally alleging negligence and specifically alleging:

"The performance of the hysterectomy and oophorectomy by Dr. Hutchens was totally without medical justification, done solely for economic motivation, and in reckless disregard of Dawn Patterson's basic rights as a patient."

The jury found that Hutchens was not negligent in his treatment of Patterson. A judgment was entered dismissing Patterson's action and awarding Hutchens costs and disbursements of $76,375.27. After Patterson objected to the costs and disbursements, the trial court ordered Dr. Emanuel Friedman's expert witness fee reduced from $30,887 to $20,887, but otherwise confirmed the award.

I.

Patterson contends that the trial court erred in excluding documentary evidence assertedly demonstrating that Hutchens excessively utilized surgery for economic gain. The trial court excluded evidence showing (1) every hysterectomy (removal of uterus), oophorectomy (removal of ovary), and salpingo oophorectomy (removal of ovary and fallopian tube) performed at St. Alexius Medical Center in the five-year period of 1987 through 1991, by the ten surgeons (including Hutchens) performing such procedures there, with each patient identified by age; (2) Hutchens performed a larger share of all the procedures than any of the other physicians; and (3) Hutchens performed the procedures at a higher rate than other physicians on patients under 30 years of age. The trial court excluded evidence showing that Hutchens was the highest grossing physician at Mid Dakota Clinic in 1990 and 1991, and showing that he outproduced the next highest earning physician at the clinic by a significant margin. The trial court also excluded evidence of Mid Dakota Clinic production records showing "how many procedures he's doing."

Patterson wanted the evidence admitted to show that Hutchens excessively utilized surgery for economic gain, rather than medical necessity. Patterson contended that the evidence bore on Hutchens's motivation, state of mind, credibility, opportunity, and intent. See Rule 404, N.D.R.Ev. ¹ Hutchens's counsel told the court about the number of witnesses that might be called:

"First of all, if [Patterson's attorney] intends to get into this whole issue of statistics and the number of surgeries Dr. Hutchens performs around town, we intend to call these people to testify that they do very little of the types of procedures he does. They refer all their difficult, complex cases to him to perform those hysterectomies and oophorectomies in younger people....

* * * * * *

"If the Court allows the statistical evidence that Mr. Zuger wants to present, it is our intention to have Dr. Hutchens discuss a number of these other surgeries that he performed from 1987 to 1991 to show the jury why they were medically warranted and justified. Dr. Hutchens will also be prepared to present a number of these females under age 30 that had hysterectomies and oophorectomies to describe why they wanted the surgeries done and the fact that they are pleased with those surgeries at this point in time and they didn't feel they were medically unnecessary at the time."

The trial court was concerned with relevancy ² and the time and expense ³ associated with the reception of the proposed statistical evidence:

"It may tend to prove that he does unnecessary surgeries. That's possible. But what does it tell us about this case?

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"[I]t's not only a question of whether or not it has a tendency to prove the proposition that Mr. Zuger wants it to prove, but whether or not the effort involved in that to try to overcome it, that the amount of time and expense involved in that proposition is worth it in terms of waste of time to use the classic phrase. Sometimes the ultimate value of the information is just not worth what I go through to get it to start with. I think I'm more concerned about whether or not it has any relevancy at all."

Relevancy is somewhat problematic, as the proffered evidence is susceptible of at least three reasonable inferences: (1) Hutchens performs medically unnecessary surgery for economic gain; (2) Hutchens is a very popular doctor; and (3) other doctors refer a lot of cases to Hutchens. "In determining a relevancy question in particular, the trial judge is generally accorded 'broad discretion' in weighing the many factors that figure into the decision." 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 401, p. 401-08 (1994). Rule 403 "vests wide discretion in the trial court to control the introduction of evidence at trial and our review is limited to determining whether that discretion was abused." First Nat'l Bank & Trust Co. v. Brakken, 468 N.W.2d 633, 636 (N.D.1991). See also Williston Farm Equip., Inc. v. Steiger Tractor, Inc., 504 N.W.2d 545 (N.D.1993). "Rule 403 recognizes that 'relevance does not ensure admissibility. There remains the question of whether its value is worth what it costs.' " Weinstein's Evidence, supra, p 403, p. 403-13 [quoting 1 McCormick, Evidence Sec. 185 at 779 (West 4th ed. 1992) ]. Evidence may be excluded if it "and the answering evidence that it provokes might unduly distract the jury from the main issues" or if "the evidence offered and the counterproof may consume an inordinate amount of time." 1 McCormick, Evidence Sec. 185, p. 781 (West 4th ed. 1992). "Wise judges may come to differing conclusions in similar situations.... Accordingly, much leeway is given trial judges who must fairly weigh probative value against probable dangers." Id., at 782-83. "Courts are ... reluctant to admit evidence ... if detailed rebuttal evidence or complicated judicial instructions would be required to demonstrate that the evidence actually has little probative value." Weinstein's Evidence, supra, p 403, p. 403-67.

We conclude that the trial court did not abuse its discretion in excluding Patterson's proffered statistical evidence on the number of surgical procedures performed by Hutchens, his share of the relevant surgical procedures performed at St. Alexius Medical Center, Mid Dakota Clinic evidence of the number of surgical procedures performed by Hutchens, or evidence of his income in comparison with other doctors at Mid Dakota Clinic. The evidence was of questionable relevance in light of the varying inferences to which it was susceptible. The evidence was likely to induce time-consuming, distracting, and, perhaps, confusing evidence to rebut it. Preventing Patterson from using this kind of circumstantial evidence of performing unnecessary surgery for economic gain did not in any way prevent her from introducing direct evidence that Hutchens performed unnecessary surgical procedures upon her.

II.

Patterson contends that the trial court wrongly excluded medical records of Dr. Eugene Mead. Patterson saw Dr. Mead on December 10, 1991, and on December 18, 1991. Mead concluded in written notes:

"I personally would not have done an abd. hysterectomy and an oophorectomy on such a young lady, however, I did not do it, Dr. Hutchens did."

"I do not think she should have had the hysterectomy done in the first place but since she did I am not sure what we can do for her at this point."

Mead moved to another state and was not a witness at the trial. Concerned about the defense's lack of opportunity for cross-examination, the trial court excluded those entries from being admitted into evidence:

"And as far as Mead goes, it smells bad to me. I'm going to keep it out.

* * * * * *

"That's the best explanation I can give you. There is no opportunity to cross-examine it. The fact that it's in the medical record doesn't change that any. It's too important to allow it to go in just because it happens to be an opinion in a medical record."

Patterson contends that the records containing Dr. Mead's opinions were admissible under Rule 803(6), N.D.R.Ev.:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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"(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession,...