Pope By and For Juby v. Ransdell

• Decision Date: 22 May 1992
• Docket Number: No. 66459,66459
• Citation: 251 Kan. 112,833 P.2d 965
• Parties: Judy A. POPE, Conservator, By and For the Benefit of the Estate of Bobby Rex JUBY, A Minor, Appellant, v. Edgar C. RANSDELL, M.D., Appellee.
• Court: Kansas Supreme Court

Page 965

833 P.2d 965

251 Kan. 112

Judy A. POPE, Conservator, By and For the Benefit of the Estate of Bobby Rex JUBY, A Minor, Appellant, v. Edgar C. RANSDELL, M.D., Appellee.

No. 66459.

Supreme Court of Kansas.

May 22, 1992.

Syllabus by the Court

1. The terms and conditions which a district court may impose upon dismissal of an action at the instance of the plaintiff are for the protection of the substantive rights of the defendant. The district court must weigh all the equities of the case, including the rights of the parties and how they will be affected, and what benefits or injuries may result to the respective sides in the controversy if a dismissal is granted.

2. Upon review by an appellate court, the inquiry whether the district court abused its discretion in granting the plaintiff's motion to dismiss the action against the defendants without prejudice and in preserving any claim existing between the other parties to the lawsuit is confined to whether the situation and circumstances clearly show an abuse of discretion, i.e., an arbitrary action that failed to apply the appropriate equitable and legal principles under the facts and circumstances of the case.

3. In medical malpractice actions, strong reliance has to be placed on expert rather than lay testimony. The admission of expert testimony is based on necessity arising out of the particular facts of each case. Expert testimony is necessary where normal experience and qualifications of lay persons serving as jurors does not permit them to draw proper conclusions from the facts and circumstances of the case.

4. During direct examination, expert witnesses must confine their opinions to relevant matters which are certain or probable. When medical experts are giving opinion testimony, the expert must give such opinions within a reasonable medical probability. The expressions "probably," "more likely than not," and others of similar import are proper qualifications for a medical expert's opinion testimony if, taken as a whole, the testimony reflects an honest expression of professional opinion as to reasonable medical probabilities.

5. The factors and mental processes used by the expert can only be challenged by cross-examination testing the witness' credibility. Thus, to properly challenge the opinions and conclusions of an expert witness the examining party must be able to fully and effectively cross-examine the expert witness. The latitude permitted in the cross-examination of an expert witness is even wider than in the case of an ordinary opinion witness. It is appropriate to cross-examine medical experts on the possible causes of an injury.

6. K.S.A. 60-421 prohibits the introduction into evidence of the conviction of a witness for a crime not involving dishonesty or false statement for the purpose of impairing the credibility of the witness.

7. Expungement of criminal records is governed by K.S.A. 21-4619, which provides that after the order of expungement is entered the petitioner shall be treated as not having been convicted of the crime.

8. K.S.A. 21-4619 relates to expungement of the fact of conviction. With some exceptions, it prohibits the disclosure of the fact of conviction of a crime and the existence of records relating to that conviction if the conviction has been properly expunged. K.S.A. 21-4619 does not prohibit admission of evidence of acts constituting the crime, the conviction of which has been expunged, if those acts are relevant to a fact in issue. The acts must be proven by evidence other than evidence of the fact of conviction and the existence of records relating to the conviction.

9. The courts have inherent power over their official records. In an unusual case, where a defendant, whose former criminal convictions have been expunged, is directly involved in civil litigation, a district court might in its discretion permit the release of certain documents contained in an expunged file in order to achieve the ends of justice.

10. K.S.A. 60-445 provides the judge may as a matter of discretion exclude evidence if the judge finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.

Gary D. White, Jr. of Schroer, Rice, P.A., Topeka, argued the cause, and Gene E. Schroer, of the same firm, was with him on the briefs for appellant.

Cynthia J. Sheppeard of Heck & Sheppeard, P.A., Topeka, argued the cause and was on the brief for appellee.

LOCKETT, Justice:

This is a medical malpractice action brought by the conservator of the estate of a minor whose injuries allegedly resulted from negligence in the obstetrical care the defendant doctor provided the child's mother. The doctor claims the mother caused the injuries to the child by her use of drugs during her pregnancy. The jury returned a verdict finding no fault on the part of the doctor, other doctors, or the mother. The conservator appeals, claiming the trial court erred in (1) restricting the plaintiff to only one expert witness at trial; (2) not striking the unresponsive testimony of defendant's expert witnesses and not admonishing the jury to disregard the response; (3) limiting plaintiff's cross-examination of defendant and defendant's expert witnesses to questions based on a reasonable medical probability; and (4) improperly allowing defendant to impeach the mother with expunged criminal convictions.

Judy Pope, conservator of the estate of Bobby Rex Juby, seeks to recover damages from Edgar C. Ransdell, M.D., for injuries suffered by Bobby allegedly as a result of negligence in the obstetrical care Dr. Ransdell provided to Bobby's mother, Sandra Juby.

Sandra Juby was admitted to the hospital on November 8, 1976. She was experiencing contractions approximately every five minutes. At 6:15 p.m. on November 8, the hospital's nursing staff notified Dr. Ransdell of Sandra's admission. Dr. Ransdell ordered a vaginal prep, S.S. enema, and the nurse to observe for labor for two hours, and if there was no change, Sandra could be dismissed. Sandra was observed and examined by the nursing staff throughout the evening and night of November 8.

At 7:25 a.m. on November 9, Dr. Ransdell performed a vaginal exam of Sandra and ruptured her membranes to induce labor. Dr. Ransdell then left. According to Dr. Ransdell, although Sandra was having contractions she was not in active labor because there was no progression in the dilation of her cervix. At 8:25 a.m., Dr. Ransdell returned to Sandra's bedside and placed an internal fetal heart monitor. Dr. Ransdell again returned to Sandra's bedside at 9:25 a.m. and performed a vaginal exam. Sandra's labor had not progressed between the 7:25 a.m. and 9:25 a.m. visits. At 9:25 a.m., there was a deceleration of the fetal heartbeat. At trial, Dr. Ransdell testified that the deceleration at that time did not indicate a problem. Subsequently, Dr. Ransdell left the hospital and returned to his office, a block and a half away, to see patients.

At 11:10 a.m., the nursing staff recorded variable decelerations of the fetal heartbeat. Dr. Ransdell was notified of the condition by telephone at 11:15 a.m. At 11:20 a.m., the nursing staff received a telephone order from Dr. Ransdell for type and cross-matching of Sandra's blood. The nursing staff telephoned Dr. Ransdell again at 11:35 a.m. and notified him of the fetal heart monitor strip. Dr. Ransdell ordered the nursing staff to insert a Foley catheter, give Sandra the drug atropine, and notify a pediatrician. These orders indicate Dr. Ransdell was preparing for a cesarean section.

Whether Dr. Ransdell arrived at the hospital at 11:38 a.m. or seven minutes later, at 11:45 a.m., was disputed. At 12:28 p.m., Dr. Ransdell delivered Bobby by cesarean section.

Appellant alleged that Bobby suffers from a seizure disorder, is very uncoordinated, and has made little advancement in his psycho-motor development which causes difficulty with his speech and causes him to drool. His condition has remained static and likely will not improve to any significant degree and will require him to take anti-convulsant drugs for the remainder of his life.

PROCEDURAL HISTORY:

This action was originally filed in 1985 by Sandra Juby on behalf of Bobby Juby against Dr. Ransdell, Dr. Herbert C. Hodes, and the Jane C. Stormont Hospital and Training School for Nurses (Stormont-Vail). Trial was scheduled for August 23, 1987, but was continued to August 27, 1987. On August 25, 1987, at the defendant's request the court ordered plaintiff's expert witness, Dr. David C. Abramson of Washington, D.C., to bring his 1980-1986 income tax returns to trial for cross-examination purposes. On August 27, 1987, prior to the start of the trial, plaintiff dismissed the claims against defendants Hodes and Stormont-Vail. On September 1, 1987, Dr. Abramson failed to provide copies of his income tax returns and, although present, he was not allowed to testify at trial. Plaintiff moved for a mistrial, which the court denied. Plaintiff then moved for a dismissal without prejudice, and defendant moved for a directed verdict or a dismissal with prejudice. On February 1, 1988, the trial court ruled the case would be dismissed without prejudice but reserved determination of the conditions of dismissal for a later date.

On July 29, 1988, during a telephone conference, the court ruled that plaintiff would be required, as the terms and conditions of dismissal of the case without prejudice, to pay for the costs involved in trial preparation by the defense for Dr. Abramson's testimony. The plaintiff paid to defendant $10,817.41 and filed the present case on July 29, 1988.

On September 7, 1988, the trial court held a status conference. The court allowed plaintiff 60 days to employ an obstetrician/gynecologist (OB-GYN) expert witness to replace Dr. Abramson. The court further stated...