Pearson v. Bridges, 3070.

• Decision Date: 08 November 1999
• Docket Number: No. 3070.,3070.
• Citation: 337 S.C. 524,524 S.E.2d 108
• Parties: Belinda Sue PEARSON, Respondent, v. Tommy L. BRIDGES, M.D., Appellant.
• Court: South Carolina Court of Appeals

337 S.C. 524

524 S.E.2d 108

Belinda Sue PEARSON, Respondent, v. Tommy L. BRIDGES, M.D., Appellant.

No. 3070.

Court of Appeals of South Carolina.

Heard May 12, 1999.

Decided November 8, 1999.

Rehearing Denied December 25, 1999.

Gregory A. Morton and Ashby W. Davis, both of Donnan, Morton, Davis & Snyder, of Greenville, for appellant.

Larry C. Brandt, of Walhalla, for respondent.

STILWELL, Judge:

In this medical malpractice case, Tommy L. Bridges, M.D. appeals the trial court's decision to admit evidence of four possible scenarios regarding Belinda Sue Pearson's future medical needs and expenses. Bridges claims the trial court erred in admitting evidence of future medical expenses that did not reach the "most probable" standard for admissibility. We affirm.

FACTS

Pearson sued Bridges for medical malpractice after complications from gallbladder surgery. During laparoscopic surgery in May 1992, Bridges cut the common bile duct instead of the cystic duct as intended. He then had to convert the surgery to an open procedure and attempted to repair the common bile duct. After the repair and the surgery were finished, a narrowing caused by the buildup of scar tissue known as a "stricture" formed in the area where the bile duct had been cut. Bridges performed another surgery to correct this problem, and a stent was placed in the bile duct. This stent became unseated and had to be removed.

Pearson was then referred to Dr. John Galloway at Emory University. During surgery in September 1993, Dr. Galloway placed another stent in Pearson's bile duct. The stent was removed in April 1994 but the duct strictured once again and another stent was inserted during another surgery. This stent was not removed until November 1995. At trial, evidence was presented to show medical costs, pain and suffering, and future medical costs. The present and past medical costs amounted to $123,902.72. There was also evidence introduced that Pearson incurred lost wages of $64,131.93. Pearson testified as to her pain and suffering during the many months of recovery from the numerous surgeries. She testified to (1) having tubes in her side; (2) having to have others help her with common everyday tasks, such as using the bathroom; and (3) medical problems such as high fevers and jaundice.

Dr. Galloway testified as to four possible scenarios regarding Pearson's required future medical care. An economist, Dr. Richard G. Thompson, assigned monetary values to the potential scenarios. The possible scenarios introduced at trial were:

Scenario One: Continual monitoring of Pearson's condition to prevent any more strictures and complications. Projected cost: $9473.78.

Scenario Two: If the duct restrictured, another cholangioplasty would need to be performed. Projected cost: $20,107.56.

Scenario Three: If scenario two failed and surgery was required. Projected cost: $38,683.62.

Scenario Four: If scenarios two and three failed, Pearson would need a full liver transplant. Projected cost: $237,128.39.

Bridges objected to all testimony other than scenario one on the grounds that it did not meet the "most probable to happen" standard and was inadmissible. The trial court overruled the objection and allowed evidence of all four scenarios.

At trial, the jury awarded Pearson $755,000 in damages in a general verdict. Bridges does not appeal the finding of liability. After the jury verdict, Bridges moved for a new trial nisi remittitur, a new trial absolute, and judgment notwithstanding the verdict. He alleged that the testimony regarding the possible scenarios was prejudicial and that the jury's verdict was reached based upon speculation and conjecture. The trial court denied all Bridges's motions.

DISCUSSION

Bridges argues that the evidence and testimony regarding scenarios two, three, and four were inadmissible because they do not meet the most probable standard, thereby causing the jury's verdict to be based upon conjecture and surmise. We disagree.

Clearly, the most probable rule applies to testimony given by a medical expert to establish proximate cause in a medical malpractice case. Ellis v. Oliver, 323 S.C. 121, 473 S.E.2d 793 (1996). What is less clear, however, is the standard of proof required before future medical expenses may be admitted at trial.¹

Under South Carolina common law, future damages are generally allowed in personal injury and medical malpractice cases. See Haltiwanger v. Barr, 258 S.C. 27, 186 S.E.2d 819 (1972) (holding that future damages may be recovered in a personal injury action so long as the damages are reasonably certain to result in the future from the injury); see also Ward v. Epting, 290 S.C. 547, 351 S.E.2d 867 (Ct.App.1986) (holding that evidence of loss of future earnings admissible in a medical malpractice case).

Bridges asserts that the standard of proof required to admit evidence of future damages is the same as that required to prove causation. We disagree. See Armstrong v. Weiland, 267 S.C. 12, 16, 225 S.E.2d 851, 853 (1976) ("When the testimony of an expert witness is not relied upon to establish proximate cause, it is sufficient for plaintiff to put forth some evidence which rises above mere speculation or conjecture....").

In 1995, the court of appeals held that the most probable rule did not apply to expert testimony offered for reasons other than to prove proximate cause. Payton v. Kearse, 319 S.C. 188, 210, 460 S.E.2d 220, 233 (Ct.App.1995). Even though it found the trial court wrongly excluded the expert's testimony, the court of appeals did not reverse because it found the expert's testimony cumulative and the error, therefore, harmless. Id. at 211, 460 S.E.2d at 233.

In reversing the decision of the court of appeals, the supreme court found that the trial court properly excluded the expert's testimony because it was "only relevant to the issue of causation." Payton v. Kearse, 329 S.C. 51, 61, 495 S.E.2d 205, 211 (1998). The supreme court did not comment on the court of appeals's holding that the most probable rule did not apply to expert testimony offered for reasons other than to prove proximate cause.

Therefore, expert testimony admitted to prove future damages need not meet the most probable standard. To be admissible, "[f]uture damages do not need to be proved to a mathematical certainty. Oftentimes a verdict involving future damages must be approximated. A wide latitude is allowed the jury." Haltiwanger, 258 S.C. at 32-33, 186 S.E.2d at 821.

Early South Carolina law held that evidence regarding future damages was required to be established with "reasonable certainty." Green v. Catawba Power Co., 75 S.C. 102, 55 S.E. 125 (1906).

A later South Carolina case, however, held that expert medical testimony regarding future consequences of an injury was permitted where such testimony satisfied the rule against speculation and was otherwise admissible. Martin v. Mobley, 253 S.C. 103, 169 S.E.2d 278 (1969); see Phillip E. Hassman, Annotation, Admissibility of Expert Medical Testimony as to Future Consequences of Injury as Affected by Expression in Terms of Probability or Possibility, 75 A.L.R.3d 9, 24 (1977) (citing Martin for the proposition that South Carolina common law follows the most lenient admissibility rule regarding such testimony—the "rule permitting all pertinent testimony except speculation.").² We think a fair reading of South Carolina law illustrates that reasonable certainty is evidence that is beyond mere speculation and conjecture but less than that required by the most probable standard to prove proximate cause. See Ellis v. Oliver, 323 S.C. 121, 125, 473 S.E.2d 793, 795 (1996) (In medical malpractice case, distinguishing the reasonable certainty requirement of an expert in stating his opinion from the most probable standard necessary to prove causation.); see also Mali v. Odom, 295 S.C. 78, 367 S.E.2d 166 (Ct.App.1988) (holding estimates inadmissible as evidence of future lost profits because they made no reference to any particular standard of fixed estimation method or any operational history and therefore, were speculative).

In personal injury actions, great latitude is allowed in the introduction of evidence to aid in determining the extent of damages; and as a broad general rule, any evidence which tends to establish the nature, character, and extent of injuries which are the natural and proximate consequences of defendant's acts is admissible, if otherwise competent. Martin, 253 S.C. at 103, 169 S.E.2d at 278.

In Martin, the supreme court affirmed the trial court when it allowed the plaintiffs expert witness to testify that, generally, a patient sustains a 15% permanent disability following surgery to repair a herniated disc. Id. at 107, 169 S.E.2d at 280. Although the witness was the physician who had performed the surgery, he had not subsequently examined the plaintiff to determine the extent of her permanent disability. Id. at 108-09, 169 S.E.2d at 281. The court held that the fact that the doctor had not had the opportunity to consider whether the plaintiffs permanent disability was more or less than that which generally followed such a condition and operation affected only the weight, and not the admissibility, of the proffered evidence. Id. at 109, 169 S.E.2d at 281.

In a personal injury case, the trial court permitted an expert physician to testify that the plaintiffs leg would be "more prone" to circulation problems because of extensive scarring. Campbell v. Paschal, 290 S.C. 1, 15, 347 S.E.2d 892, 900 (Ct.App.1986). The defendant contested the trial court's decision to admit testimony regarding the plaintiffs future medical expenses on the ground that there was insufficient evidence regarding them to let the court submit it to the jury. Id. The court of appeals held that evidence that the plaintiff suffered recurring pain and tenderness in his leg and that he was likely to suffer circulation problems in the future was sufficient to sustain an award...