Reno v. Wakeman, 18044

• Court: Missouri Court of Appeals
• Writing for the Court: SHRUM; PARRISH; MONTGOMERY; PARRISH
• Citation: Reno v. Wakeman, 869 S.W.2d 219 (Mo. App. 1993)
• Decision Date: 17 December 1993
• Docket Number: No. 18044,18044
• Parties: Janice K. RENO, Plaintiff-Appellant, v. Newt WAKEMAN, Jr., M.D., Defendant-Respondent.

Page 219

869 S.W.2d 219

Janice K. RENO, Plaintiff-Appellant, v. Newt WAKEMAN, Jr., M.D., Defendant-Respondent.

No. 18044.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 17, 1993.

Motion for Rehearing or Transfer Denied Jan. 11, 1994.

Application to Transfer Denied Feb. 22, 1994.

Donald E. Woody, Kevin M. FitzGerald, Taylor, Stafford, Woody, Clithero & FitzGerald, Springfield, for plaintiff-appellant.

Andrew K. Bennett, Gannaway, Fiorella, Cummings & Bennett, Craig A. Smith, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for defendant-respondent.

SHRUM, Judge.

In this medical negligence case brought by Janice K. Reno against Newt Wakeman, Jr., M.D., the jury found for Defendant. On appeal Plaintiff raises multiple claims of prejudicial trial court error, including a charge that the trial court erred in disallowing cross-examination of one of Defendant's experts about his prior deposition testimony. Because of our conclusion that the trial court abused its discretion, we reverse and remand.

FACTS

Plaintiff's claim as submitted to the jury was that Defendant was negligent because he did not remove a rock embedded in her right leg or did not inform her of the risk of infection associated with leaving the rock in her leg. Evidence relevant to Plaintiff's dispositive point on appeal follows.

On August 5, 1973, Plaintiff was struck on her right leg below the knee by something propelled from beneath an operating power lawn mower. She was unaware of what had struck her and did not know the object was embedded in her leg. It was later determined that the object was a rock and that it had lodged deep within her leg, approximately 3 to 3 1/2 inches below her knee.

On the accident date Plaintiff was treated at a hospital emergency room without x-rays being taken. In April 1974, x-ray examination by her personal physician revealed a foreign object in her leg. This discovery prompted her to see Defendant, an orthopedic surgeon.

By physical examination and history, Defendant determined that Plaintiff had a "chronic foreign body injury," meaning that a foreign object had been in her leg long enough for her body to adapt to it, in this case by encapsulating or walling off the foreign object thereby forming a barrier between healthy tissue and the object. From visual observation and without benefit of blood testing, Defendant concluded there was no infection in her leg.

Upon completion of his examination Defendant recommended against surgery, which he considered fraught with risk because of the location of the object in Plaintiff's leg. Although he advised Plaintiff of numerous potential surgical risks, he testified he did not recall explaining the risks of leaving the object in her leg. He acknowledged those risks included increased inflammation near the object, malignancy, breakdown of the capsule, and infection. Relying on Defendant's advice, Plaintiff chose not to have the object removed.

Increased pain in her right leg prompted Plaintiff to see Defendant in October 1980. She also was examined by Defendant on September 10 and October 2, 1987, because of swelling in her right leg. Defendant attributed the swelling to chondromalacia. During the September examination, he drew fluid from her knee. Because the fluid was clear, he concluded there was no infection. On all of these occasions, consistent with his earlier advice, Defendant recommended against removal of the object, primarily because of the absence of visual evidence of infection and the potential risks of surgery. ¹

Plaintiff sought a second opinion from Dr. Randall Norgard, an orthopedic surgeon. A videotaped deposition of Dr. Norgard was shown to the jury. Dr. Norgard examined Plaintiff on October 15, 1987, and admitted her that day to the hospital for a variety of tests. She was discharged on October 17 with a diagnosis of pes bursitis. ² Dr. Norgard examined Plaintiff at his office on October 23 and 26; on each occasion she told him she had obtained no relief from the pain in her right leg.

On October 26 Dr. Norgard sent Plaintiff to a radiologist for a CT scan. The radiologist's report indicated the presence of a soft tissue mass and the possibility of an infection, some calcification, or a tumor. On October 27, at the out-patient surgery unit of a hospital, Dr. Norgard performed a biopsy of muscle tissue and the periosteum of the tibia at the site of the foreign object. He found "much chronic inflammatory response in the soft tissues" and muscle that "was not viable." His gross examination revealed no evidence of an infection and a stat gram stain test showed no bacteria present.

Following the biopsy, Dr. Norgard closed the surgical wound after inserting a "hemovac" drain and admitted Plaintiff to the hospital. While awaiting the results of the biopsy Dr. Norgard treated Plaintiff with pain medication but no antibiotics.

Dr. Norgard received the results of the biopsy on October 30. Although the biopsy revealed no evidence of a malignancy, it did show she had an abscess, that is, she had an infection in her leg in the area where he took the biopsy. On October 30, by which date the infection in Plaintiff's lower right leg was "quite obvious," Dr. Norgard opened the biopsy site, irrigated it, cut away necrotic tissue, and removed the foreign object, which he discovered to be a rock measuring 2.5 by 1.5 centimeters. Dr. Norgard then prescribed two antibiotics. The infection in Plaintiff's leg was resistant to one of the antibiotics, and the second antibiotic was not immediately effective. During November, Dr. Norgard performed three additional surgical procedures to irrigate the site and remove necrotic tissue. Plaintiff also underwent reconstructive surgery before her discharge from the hospital on November 24, 1987. She suffered substantial and disfiguring loss of leg muscle and other tissue.

Plaintiff's evidence included expert testimony of orthopedic surgeons Edwin Season, who testified at trial, and Joseph Lichtor, whose videotaped deposition was shown to the jury. Dr. Seasons testified there was a chronic, indolent, and slowly progressing infection in Plaintiff's leg in the area of the biopsy, a condition that existed prior to the biopsy. He stated that the infection resulted from the presence of a foreign body and that the necrosis discovered by Dr. Norgard resulted from the infection. Dr. Lichtor testified that an abscess and dead tissue existed in the area of the foreign object at the time Defendant examined Plaintiff in October 1987, a date prior to Dr. Norgard's biopsy.

One of Defendant's expert witnesses, orthopedic surgeon Edward Prostic, testified on cross-examination that on October 26, 1987, the day prior to the biopsy, Plaintiff had an active infection in her leg in the area of the rock, that the infection had been present "at least a week or two," and that the infection was a result of the presence of the rock.

Defendant's other expert witness was Dr. Alastair Haddow, a medical doctor and an infectious disease specialist. He testified that, because the contaminated rock had been totally encapsulated, Plaintiff had no active infection and no necrosis in her leg until after Dr. Norgard performed the biopsy. Dr. Haddow said the biopsy breached the capsule that had formed around the rock and permitted bacteria to escape into Plaintiff's leg causing the infection and loss of tissue.

During cross-examination, Plaintiff's counsel attempted to impeach Dr. Haddow with statements he had made in an earlier deposition. On four occasions, the attempted impeachment dealt with Dr. Haddow's assertions at trial, which we number for convenient reference and paraphrase for clarity: (1) a foreign object in a human body does not act as a nidus for an infection; (2) Plaintiff's symptoms, prior to the biopsy, were the result of bacteria multiplying within the capsule and not from a "breaking down" of the capsule; (3) prior to the biopsy, Plaintiff had "an active infection" in the area of the foreign object but it was contained within the capsule; and (4) continual pain alone does not provide a sufficient reason to surgically remove a foreign object.

Regarding each of these items of testimony, Plaintiff's counsel read testimony from Dr. Haddow's deposition that counsel considered inconsistent with the trial testimony. Regarding the first assertion, defense counsel made no objection to the use of the deposition testimony, and Dr. Haddow reconciled the apparent inconsistency. After Plaintiff's counsel read from the deposition transcript concerning the subject of the second assertion, defense counsel objected that the prior statement was not inconsistent. The trial court overruled the objection. Dr. Haddow then elaborated on his deposition testimony and its apparent inconsistency with his trial testimony, and he stated, "The biopsy report does not show that the capsule was broken down."

Concerning the third topic, defense counsel did not object to the reading of Dr. Haddow's deposition testimony that he believed Plaintiff had an actively developing infection before the biopsy. Dr. Haddow explained there was no inconsistency; the infection was actively developing, but it was totally encapsulated. Defense counsel objected to the fourth question on the grounds that Dr. Haddow was not an expert in surgery. The court overruled the objection, and Plaintiff's counsel read Dr. Haddow's inconsistent deposition testimony and moved on to another line of questioning.

A fifth attempt to impeach Dr. Haddow by use of his deposition testimony occurred as follows:

Q. [By Plaintiff's counsel to Dr. Haddow] The whole key to your opinion about Dr. Norgard and his treatment causing the damage involves a seventy-two hour period between October 27 of '87 and October 30 of 1987, is that correct?

A. Yes.

Q. And isn't it true, Doctor, that Dr. Norgard's activity or inactivity really ended up only aggravating the extent of the...