Phillips v. McAuley, 88-197

• Decision Date: 06 February 1989
• Docket Number: No. 88-197,88-197
• Citation: 764 S.W.2d 424,297 Ark. 563
• Parties: Darrell PHILLIPS, Appellant, v. Dr. John McAULEY, Appellee.
• Court: Arkansas Supreme Court

Page 424

764 S.W.2d 424

297 Ark. 563

Darrell PHILLIPS, Appellant, v. Dr. John McAULEY, Appellee.

No. 88-197.

Supreme Court of Arkansas.

Feb. 6, 1989.

James E. Evans, Jr., Susan A. Fox, Springdale, for appellant.

Calvin H. Hall, Little Rock, for appellee.

GLAZE, Justice.

This case involves a medical malpractice action against the appellee, Dr. John McAuley. The appellant, Darrell Phillips, was injured in a trucking accident near Clarksville and was transported to the Johnson County Regional Hospital emergency room where he was treated by Dr. McAuley. Phillips was treated for lacerations, the principal one being across the forehead. He also had chest and skull x-rays which were reviewed by Dr. McAuley and Dr. John W. King, a radiologist, who found the x-rays to be normal. Phillips was later discharged into the care of his personal physician.

Some six weeks after his discharge from the hospital, Phillips consulted another doctor who informed him that he had suffered a dislocation of the sixth and seventh cervical vertebrae in the neck. He subsequently filed suit alleging negligence against doctors McAuley, King, and the hospital, but before the date of trial, he voluntarily dismissed the hospital and Dr. King from the suit, leaving McAuley as the sole defendant. After a three day trial, the jury returned a verdict in favor of Dr. McAuley. Phillips' sole assignment of error on appeal is that the trial court abused its discretion in allowing Dr. King to testify as an expert witness when Dr. McAuley had failed to disclose King as a witness during pretrial discovery. We find no abuse of discretion, and therefore affirm.

Under the dictates of ARCP Rule 26(e)(2)(B), a party is under a duty to seasonably amend a prior response to discovery when he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowning concealment. We recently applied this rule in Dunlap v. Buchanan, 293 Ark. 179, 735 S.W.2d 705 (1987), where the trial court allowed the introduction of rebuttal evidence that had not been listed in pretrial discovery. At the close of Dunlap's case-in-chief, Buchanan supplemented his response by notifying Dunlap and the court that he would seek to introduce medical records not listed in the original response. We held that the court did not abuse its discretion in admitting the evidence since Buchanan's response was truthful when made and the need to change the response was the result of trial developments.

In the instant case, twelve months before trial, Dr. McAuley asked Phillips by interrogatory for a list of witnesses and their expected testimony. Phillips listed, among others, a Dr. Shealy and responded that Dr. Shealy might testify that "Dr. McAuley either failed to order x-rays, failed to have x-rays taken when he found out x-rays were not taken, had x-rays taken and failed to diagnose properly or in some manner he deviated drastically from accepted medical practice by failing to have x-rays taken of the neck region of Darrell W....