Reed v. Spencer, WD

• Decision Date: 18 October 1988
• Docket Number: No. WD,WD
• Citation: 758 S.W.2d 736
• Parties: Patricia J. REED and Tyler K. Reed, Appellants, v. Donald M. SPENCER, M.D., an individual, Donald M. Spencer, M.D., Professional Corporation, and Research Medical Center, Respondents. 40330.
• Court: Missouri Court of Appeals

Page 736

758 S.W.2d 736

Patricia J. REED and Tyler K. Reed, Appellants, v. Donald M. SPENCER, M.D., an individual, Donald M. Spencer M.D., Professional Corporation, and Research Medical Center, Respondents.

No. WD 40330.

Missouri Court of Appeals Western District.

Oct. 18, 1988.

Cindy L. Reams, Dillard and Weisenfels, Kansas City, and L.D. McDonald, Jr., Michael A. Preston and Gregory J. Pappas, McDonald, Preston & Louk, Overland Park, Kan., for appellants.

Thomas W. Wagstaff and Timothy M. Aylward, Blackwell, Sanders, Matheny, Weary, and Lombardi, Kansas City, for respondents.

Before SHANGLER, P.J., and CLARK and NUGENT, JJ.

CLARK, Judge.

Appellant Patricia J. Reed sued respondents for medical malpractice associated with surgery performed upon her to correct a congenital defect in her left hip. A jury returned a verdict for respondents. Appellants present seven points of alleged trial error.

It is unnecessary to this opinion that all factual details of the case be recounted. It suffices to say that Patricia Reed consulted Dr. Spencer relative to hip pain. Mrs. Reed was ultimately admitted to the hospital where Dr. Spencer performed a femoral osteotomy, a procedure in which the femur is severed, the bone sections are repositioned and a fixation device is inserted. Recovery from the operation was unsatisfactory. Dr. Theodore Sandow was later consulted and he performed a total replacement of Mrs. Reed's hip. The claim here is that the osteotomy was not skillfully performed and the hip replacement and associated complications were attributable to that medical malpractice.

In their first point, appellants complain of the ruling by the trial court denying counsel the opportunity to conduct a redirect examination of plaintiff Patricia Reed for the purpose of rehabilitating her testimony. The issue arose in consequence of cross-examination which confronted Mrs. Reed with her deposition testimony to the effect that Dr. Spencer's treatment had alleviated Mrs. Reed's complaints. Counsel sought the redirect interrogation to establish that the deposition testimony was the product of a misunderstanding, that Mrs. Reed had made her answers in respect to treatment she received from Dr. Sandow, not Dr. Spencer. Also proposed was further questioning of Mrs. Reed on the subject of pain she experienced at night. The court denied plaintiffs the opportunity to engage Mrs. Reed in redirect questioning.

Redirect examination is an appropriate method to rehabilitate a witness and to remove doubt about his testimony created by cross-examination. Cignetti v. Camel, 692 S.W.2d 329, 338 (Mo.App.1985). It is, however, also well established that the scope and extent of redirect examination is a matter for the sound discretion of the trial court and that the court's action to control redirect questioning will not be disturbed unless an abuse of discretion is clearly shown. Eickmann v. St. Louis Pub. Serv. Co., 363 Mo. 651, 659, 253 S.W.2d 122, 126 (1952).

Appellants were not unqualifiedly entitled to conduct a redirect examination of their witness. Whether the trial court erred depends instead on determining if, under the circumstances present at the time, there was a reasonable basis for the court to rule as it did that the examination tendered on redirect was cumulative of previous testimony already adduced.

The record of Mrs. Reed's testimony shows she was not surprised when defense counsel introduced the subject of her deposition testimony. She promptly explained the answers given on deposition by stating that she misunderstood the question as referring to the treatment rendered by Dr. Sandow. She reiterated her complaint that the operation performed by Dr. Spencer had made her condition worse. She also explained an apparent discrepancy between her testimony at trial and answers given in the deposition about the onset of and recovery from pain she experienced at night. Redirect examination on those subjects could have reinforced plaintiffs' position that the deposition material should be disregarded as the product of mistake and confusion, but the evidence was, nonetheless, cumulative. That, coupled with the failure by plaintiffs to make an offer of proof to show the content of redirect testimony, is sufficient to require a finding that the trial court did not abuse its discretion in denying the redirect examination of Mrs. Reed. Appellants' first point is denied.

In their second point, appellants say the court erred in permitting defendants to introduce the testimony of Dr. Sandow as an expert medical witness when he had not been endorsed as such pursuant to Rule 56.01(b)(4)(a). There is no merit to the contention.

Dr. Sandow was originally listed as an expert medical witness to be called on behalf of the plaintiffs. On the eve of trial, plaintiffs withdrew their listing of Dr. Sandow as an expert, but produced him as a general witness to testify regarding his treatment of Mrs. Reed and about her condition. On cross-examination, defendants attempted to secure an opinion from Dr. Sandow on the exercise of proper medical judgment by Dr. Spencer. Plaintiffs objected on the basis that no proper foundation had been laid. Defendants then questioned Dr. Sandow about his familiarity with Mrs. Reed's case, the area in which the objection had contended a foundation was preliminarily required. In the course of that questioning, Dr. Sandow was asked if an osteotomy was a proper option for treating a patient with the symptoms Mrs. Reed had displayed. The witness answered that it was.

In the first place, the question originally put to Dr. Sandow regarding Dr. Spencer's exercise of judgment was never answered. The subject was ultimately abandoned when Dr. Sandow said he would have difficulty answering because he had not seen the patient earlier. It is therefore doubtful that appellants have any basis in the record for this complaint.

Even were it to be assumed that the question asked and the answer given by Dr. Sandow amounted to an expert medical opinion on the standard of care exhibited by Dr. Spencer, appellants have preserved nothing on this subject for appellate review. Plaintiffs did present a motion in limine seeking to prohibit defendants from questioning Dr. Sandow as an expert, but in the exchange at trial when Dr. Sandow was asked and gave his opinion generally about a proper course of treatment for a patient such as Mrs. Reed, plaintiffs made no objection. Despite the success or failure of a motion in limine, where testimony in the challenged area is adduced without objection, no cognizable error is preserved. Williams v. Enochs, 742 S.W.2d 165, 168 (Mo.banc 1987). This rule recognizes the interlocutory nature of the ruling on a motion in limine. Appellants' second point is denied.

In their next point, appellants argue that the court erred in permitting the defendants to introduce testimony by Dr. Richard Santore, defendants' expert witness, on the quality of medical care given Mrs. Reed by Dr. Spencer. The point as to limitation on the scope of Dr. Santore's evidence arose in the following manner.

After the time limit imposed by the court on the parties for naming expert witnesses had expired, defendants undertook to name Dr. Santore as an additional expert. Their stated purpose was to counter the tendered expert evidence by plaintiffs' substituted expert, Dr. Henry Marsh. Plaintiffs objected and the court ruled on the objection in an order which stated:

Defendants will be allowed to offer into evidence at trial competent, relevant evidence from Dr. Richard Santore, defendant's [sic] recently identified expert witness, for purposes of rebutting testimony of plaintiffs' expert witness, Dr. Henry Marsh, regarding the validity of osteotomy surgery as a means of treating hip problems, the appropriateness of performing an osteotomy on patients in Patricia Reed's age group, and the propriety of performing an osteotomy on plaintiff.

At trial, defendants' attorney was permitted over plaintiffs' objection to ask Dr. Santore whether, in his professional opinion, the treatment rendered Mrs. Reed by Dr. Spencer met or exceeded the standard of care for orthopedic surgeons practicing under the same or similar circumstances. Appellants contend this violated the court's previous order limiting the scope of Dr. Santore's expert testimony and also placed plaintiffs at a disadvantage because they had not deposed Dr. Santore in this area.

The basis for appellants' complaint appears to be their perception of the court's protective order as limiting the testimony of Dr. Santore to the theoretical arena and excluding any expression of his opinion on the actual treatment rendered to Mrs. Reed. No objection is raised about the content of the order itself, only the application of the order as a basis for ruling on the objection. We conclude the appellants have failed to accept the breadth of the order.

The phrase, "the propriety of performing an osteotomy on plaintiff," plainly encompasses an area of professional expertise and admits of evidence undertaking to pass judgment on whether a skilled medical practitioner would have treated Mrs. Reed as did Dr. Spencer. It may well be that plaintiffs' expert, Dr. Marsh, was intended by plaintiffs to be a witness testifying only that osteotomies were generally inappropriate, but that too is an expression of opinion on a standard of medical care. Moreover, in reviewing the selected portions of the deposition of Dr. Santore reproduced in appellants' brief, it appears defendants' attorney made clear his intention to question Dr. Santore exactly as he did. It may not now be validly contended by appellants that they misperceived the scope of the protective order and were therefore unprepared. The point is denied.

In a fourth point, appellants say it was error for the court to have sustained a defense objection to a question put by plaintiffs' counsel to their witness, Dr. Robert Jones. The...