Rios v. Bigler
| Decision Date | 17 October 1995 |
| Docket Number | No. 94-3240,94-3240 |
| Parties | Gloria RIOS, Plaintiff-Appellant, v. F. Calvin BIGLER, M.D. and Lauren A. Welch, M.D., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Submitted on the briefs: *
Bryson R. Cloon, of Cloon, Bennett & Ronan, Overland Park, Kansas, for Plaintiff-Appellant.
Janet M. Simpson (Brent G. Wright, with her on the brief), of Holbrook, Heaven & Fay, P.A., Kansas City, Kansas, for Defendant-Appellee.
Before MOORE, ANDERSON, and BALDOCK, Circuit Judges.
Plaintiff Gloria Rios brought the instant diversity action against Defendants F. Calvin Bigler, M.D., and Lauren Welch, M.D., in the district court alleging Defendants negligently failed to diagnose and treat her Reflex Sympathetic Dystrophy ("RSD"). 1 Plaintiff and Dr. Bigler settled before trial. A jury returned a verdict in favor of Defendant. Plaintiff appeals asserting the district court committed reversible error by: (1) refusing to instruct the jury on the theory of loss of chance of recovery; (2) denying Plaintiff's motion for a mistrial based upon a reference to malpractice insurance made by Defendant's expert witness; and (3) granting Defendant partial summary judgment on Plaintiff's claim that Defendant negligently failed to diagnose her RSD. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.
In September 1990, Plaintiff injured her wrist pulling sheets from a bin while working at Western Uniform and Towel ("Western") in Garden City, Kansas. Plaintiff went to see Western's worker's compensation physician, Dr. Bigler. Dr. Bigler x-rayed Plaintiff's wrist, discovered a ganglion cyst, and excised the cyst. For the next three months Plaintiff saw Dr. Bigler for follow-up care. Plaintiff complained of numbness and pain in her wrist. Dr. Bigler could not find any objective problems and concluded Plaintiff's condition was psychologically based. In late 1990, Dr. Bigler informed Plaintiff he would be retiring and that his associate, Defendant, would take over his practice.
In early 1991, Plaintiff went to see Defendant and informed him that she was experiencing numbness and pain in her wrist. Defendant reviewed Dr. Bigler's records and determined Plaintiff's condition was psychological. Defendant prescribed medication for Plaintiff's pain and swelling, and referred her to physical therapy. Defendant ordered a nerve conduction study to determine whether Plaintiff was suffering from carpal tunnel syndrome or compression of the ulnar nerve. The results were normal. On April 4, 1991, Defendant saw Plaintiff for the last time. Defendant placed a cast on Plaintiff's wrist to immobilize it.
On April 18, 1991, Plaintiff went to see Dr. Guillermo Garcia, an orthopedic surgeon. Dr. Garcia removed Plaintiff's cast, examined her wrist, and diagnosed Plaintiff with chronic RSD. 2 Dr. Garcia immediately referred Plaintiff to physical therapy, and subsequently to another physician. Subsequent testing physicians confirmed Dr. Garcia's RSD diagnosis. Ultimately, Plaintiff was referred to a pain management treatment program, where a physician determined Plaintiff's RSD was extremely severe, permanent, and irreversible. Vol. I at 290.
In February 1993, Plaintiff filed a medical malpractice action against Defendant and Dr. Bigler in the district court. In November 1993, the parties prepared a pretrial order, in which Plaintiff set forth her theories of the case. Plaintiff specified that Defendant and Dr. Bigler negligently failed to: (1) properly care for and treat her; (2) timely diagnose her condition; (3) perform proper diagnostic testing; (4) treat or prevent her development of RSD; and (5) obtain timely consultations from appropriate specialists or refer Plaintiff to appropriate specialists for treatment. Plaintiff set forth specific claims of damages for: (1) pain and suffering; (2) disability; (3) disfigurement and accompanying mental anguish; (4) necessary medical expenses; (5) lost wages past and future; (6) lost household and personal service; (7) husband's loss of income while at home caring for Plaintiff; and (8) husband's loss of services and companionship.
On November 19, 1993, Defendant deposed Plaintiff's designated liability expert, Dr. Michael Stanton-Hicks. During the deposition, the following colloquy occurred:
Based upon Dr. Stanton-Hicks' testimony, in January 1994, Defendant filed a motion for partial summary judgment on, inter alia, Plaintiff's claim that Defendant was negligent in failing to diagnose her RSD. Defendant maintained that because Dr. Stanton-Hicks stated he was not critical of Defendant for failing to diagnose RSD, Plaintiff's claim was not supported by expert testimony. As a result, Defendant contended he was entitled to summary judgment on Plaintiff's failure to diagnose claim.
In February 1994, Plaintiff filed a memorandum in opposition to Defendant's motion for partial summary judgment. Plaintiff submitted with the memorandum an errata sheet and affidavit prepared by Dr. Stanton-Hicks that sought to clarify his deposition testimony. Specifically, Dr. Stanton-Hicks sought to clarify his previous testimony that he was not critical of Defendant for failing to diagnose RSD, stating that if Defendant "holds himself out as qualified to recognize and treat RSD, then he is guilty of failing to properly diagnose RSD and treat it promptly." Vol. I at 213.
The district court granted Defendant's motion for partial summary judgment on Plaintiff's failure to diagnose claim. The court explained that Dr. Stanton-Hicks was asked during his deposition whether he was critical of Defendant for failing to diagnose RSD and he said no. The court did not consider the material changes to Dr. Stanton-Hicks' testimony offered by Plaintiff in the affidavit and errata sheet. The court concluded that an errata sheet, like an affidavit, may be used to clarify an answer when a question is misunderstood, but cannot be employed as a "take home examination" to later materially alter statements made under oath. The court concluded Dr. Stanton-Hicks' affidavit was simply an attempt to create a sham fact issue by contradicting his previous sworn testimony. Moreover, the court concluded that the clarifications, even if considered, did not establish that Defendant violated the applicable standard of care by failing to diagnose RSD. As a result, the court granted Defendant's motion for partial summary judgment on Plaintiff's failure to diagnose claim.
On March 25, 1994, Plaintiff and Dr. Bigler settled. On March 29, 1994, Plaintiff and Defendant proceeded to trial. During Plaintiff's case-in-chief, Dr. Stanton-Hicks sought to testify regarding Defendant's alleged negligent failure to diagnose RSD. Defendant objected to the testimony, contending the court had excluded the issue of failure to diagnose. The court granted the objection. Plaintiff requested the court grant her leave to amend the pleadings to include the issue of failure to diagnose. The court denied Plaintiff's request.
During Defendant's case-in-chief, Defendant called Dr. Bigler as an expert witness. During preliminary questioning, the following exchange occurred:
Aplee.Supp.App. at 22-23 (emphasis added).
Plaintiff did not immediately object, but moved for a mistrial at the close of Dr. Bigler's testimony. Plaintiff contended Dr. Bigler's reference to malpractice insurance was intentional and resulted in unfair prejudice to her. Plaintiff noted that Dr. Bigler's reference was especially prejudicial because one of the jurors on the panel expressed reluctance during voir dire about malpractice lawsuits. The court denied Plaintiff's motion, but offered to give a limiting instruction to the jury. Plaintiff did not request one.
Following the presentation of evidence, Plaintiff tendered a proposed instruction on the loss of chance of recovery doctrine. 3 The court rejected Plaintiff's instruction concluding Plaintiff had not set forth the theory of loss of chance of recovery as an issue or claim in the pretrial order:
With regard to the loss of chance of recovery, I am not going to submit that as a separate theory. That was not set out or preserved as an argument in the Pre-Trial Order in terms of something we were going to be trying to make some recovery on. I've gone back and looked at the Pre-Trial Order. It's a straight, plain vanilla, if you will, argument that Defendant's negligence caused the injuries that the Plaintiff is complaining about, and that's what the case will be submitted on.
Vol. II at 490. The jury returned a verdict in favor of Defendant on all issues.
Plaintiff filed a motion for new trial, asserting the court erred by: (1) preventing her from presenting evidence at trial on her failure to diagnose theory, and (2) denying her motion for a mistrial based upon Dr. Bigler's intentional injection of malpractice insurance into the case. After Plaintiff filed her motion for a new trial, the Kansas Supreme Court issued its opinion in Delaney v. Cade, 873 P.2d 175, 183 (Ka...
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