Sanders v. Cole
| Decision Date | 25 April 2019 |
| Docket Number | Case No. 114,713 |
| Citation | 454 P.3d 761 |
| Parties | Verda Jean Keys SANDERS, Plaintiff/Appellant, v. Michael COLE, D.O., an individual; Jack Mocnik, Jr., M.D., an individual; John Fitter, M.D., an individual; St. John Medical Center, Inc., a company doing business in the State of Oklahoma, Defendants/Appellees, and Justin Thankachan, M.D., an individual; Thomas Nunn, D.O., an individual; South Tulsa Ear, Nose and Throat, PC, a company doing business in the State of Oklahoma; Max Swenson, PA-C, an individual; Timothy McCay, D.O., an individual; Hillcrest Healthcare Systems, Inc., formerly known as Southcrest Hospital, companies doing business in the State of Oklahoma; Gaurangi Anklesaria, M.D., an individual; and Crest Care Family Medicine, PLLC, a company doing business in the State of Oklahoma, Defendants. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Iris A. Philbeck, Sapulpa, Oklahoma, for Plaintiff/Appellant
Charles H. Moody, Leslie C. Weeks, RODOLF & TODD, Tulsa, Oklahoma. for Defendant/Appellee St. John Medical Center
Thomas A. LeBlanc, Matthew B. Free, Dan W. Ernst, BEST & SHARP, Tulsa, Oklahoma, for Defendants/Appellees Michael Cole, D.O., Jack Mocnik, Jr., M.D., & John Fitter, M.D.
SUBSTITUTE OPINION AFTER REHEARING THE COURT'S PRIOR OPINION HAVING BEEN WITHDRAWN
¶1 Verda Jean Keys Sanders appeals a judgment in this medical negligence case in favor of doctors Michael Cole, Jack Mocnik, Jr., John Fitter (the defendant radiologists) and St. John Medical Center, Inc. Because the district court erred in excluding expert testimony offered by Sanders and erred in granting a motion for directed verdict in favor of St. John, we vacate the judgment entered in favor of the defendants and remand this case for further proceedings.1
¶2 Sanders filed this suit alleging that various physicians misdiagnosed and failed to properly treat the cholesterol granuloma
near the base of her skull.2 As a result, Sanders claimed that she suffered severe and permanent injuries, including loss of hearing, loss of sight and facial paralysis that would not have occurred but for the physicians' negligence. She sued St. John, alleging it was responsible for the actions of the physicians who failed to correctly diagnose and properly treat her condition. The relevant facts are not disputed. The legal consequences of those facts and the district court's rulings in regard thereto are dispositive of this appeal.
¶3 On December 26, 2009, Sanders called an ambulance and told the driver she wanted to be taken to the St. John emergency room. She complained of dizziness, weakness, a headache, severe pain in her left ear, blurred vision and slurred speech. Sanders was evaluated by an emergency room physician, who ordered a CT scan of her head
and a CT angiogram of her head and neck. A neurologist at St. John also ordered an MRI of her brain. Although it appears that physicians at St. John initially reviewed these studies, eventually they were referred to the defendant radiologists for interpretation. As a result, Dr. Fitter interpreted the CT scan, Dr. Mocnik interpreted the CT angiogram, and Dr. Cole interpreted the MRI. At some point, Sanders was admitted to St. John under the care of Dr. Thankachan, a hospitalist employed at St. John. Sanders was diagnosed as having Bell's palsy. Dr. Thankachan prescribed antibiotics for a sinus infection. He discharged Sanders on December 29, 2009.
¶4 Sanders returned to St. John on January 20, 2010, complaining of the same symptoms. Again, an emergency room physician employed by St. John ordered a CT scan
of Sanders' head. Dr. Fitter interpreted the January 20 study. Sanders was not admitted. She was again diagnosed with Bell's palsy and advised that the symptoms would subside over time.
¶5 Sanders returned to St. John on February 18, 2010, complaining of the same symptoms. She was again seen in the emergency room, where another CT scan of her head
was ordered. Dr. Cole interpreted the February 18 study. Sanders was prescribed steroids for Bell's palsy and sent home.
¶6 Sanders returned a fourth time to St. John on March 6, 2010. In addition to her previous symptoms, Sanders complained of partial facial paralysis
, speech impairment and loss of hearing. She was again prescribed steroids for Bell's palsy and sent home.
¶7 Thereafter, Sanders was seen at other facilities by several other physicians who are no longer involved in this case. On December 21, 2010, Sanders saw Dr. Connor, a neurologist. He reviewed the radiologic studies performed at St. John and diagnosed Sanders as having a tumor at the base of her skull
near her ear canal. Dr. Connor referred Sanders to a surgeon for further treatment. That treatment was unsuccessful and Sanders was left with permanent facial paralysis and hearing loss.
¶8 Sanders' case was tried to a jury. After the close of evidence, the district court granted St. John's motion for a directed verdict. The jury then returned a unanimous verdict in favor of the defendant radiologists, which the district court accepted and on which it entered the judgment that is the subject of this appeal. Sanders filed a motion for new trial, which the district court denied. This appeal followed.
¶9 Sanders could have appealed both the judgment and the denial of her motion for new trial. "[I]f the decision on the motion [for new trial] was against the moving party, the moving party may appeal from the judgment ... from the ruling on the motion, or from both." 12 O.S.2011 § 990.2(A). However, she did not appeal the ruling on her motion for new trial. Her appeal is confined to four errors of law she contends the district court made during the trial that warrant reversal of the judgment. Issues of law are reviewed by an appellate court pursuant to the de novo standard. Christian v. Gray , 2003 OK 10, ¶ 41, 65 P.3d 591. De novo review is plenary, independent and non-deferential. Neil Acquisition L.L.C. v. Wingrod Inv. Corp ., 1996 OK 125, n.1, 932 P.2d 1100.
¶10 Of the four assignments of error raised by Sanders, we find that two are dispositive: (1) the district court erred in refusing to permit Sanders' treating physician to testify as an expert witness; and (2) the district court erred in granting St. John's motion for directed verdict.
¶11 Dr. Connor was the first physician to discover Sanders' tumor. He was offered as a fact witness to testify as one of Sanders' treating physicians. However, he was also listed as an expert witness. As evident from his pretrial deposition, Dr. Connor intended to testify that Sanders' tumor was apparent from the radiologic studies performed at St. John, including the first studies performed on December 26, 2009. It was Dr. Connor's opinion that the failure to correctly diagnose Sanders' condition when she was being treated at St. John caused her subsequent and permanent injuries.
¶12 The defendants filed a motion in limine arguing that (1) Dr. Connor was not a radiologist and, therefore, could not render an expert opinion regarding the standard of care applicable to radiologists; and (2) as a fact witness, Dr. Connor could not testify as an expert regarding causation. The defendants supported their motion in limine with the affidavit of their own expert witness, a board certified radiologist. She stated that the defendant radiologists had not breached the standard of care for radiologists when they failed to detect the tumor in Sanders' head. The district court granted the motion in limine.
¶13 At trial, Dr. Connor was asked if, in his opinion, "missing this diagnosis of her tumor in her head caused her damages." The defendants renewed their objection based on the ruling on their motion in limine. The district court conducted a lengthy discussion out of the presence of the jury. At the conclusion of the discussion and argument, the court ruled that Dr. Connor was testifying as a fact witness and as Sanders' treating physician; therefore, he could not testify as an expert witness. The district court also ruled that, because Dr. Connor was not a radiologist, he could not give an opinion regarding the standard of care for radiologists. The court limited the scope of Dr. Connor's testimony as follows:
Dr. Connor is here to testify about from the time he saw Ms. Sanders, what he saw, what he diagnosed, what his treatment of her is. He can talk about what he saw when he looked at the images, but he can't testify as to a standard of care because he's not a radiologist.
That was error.
¶14 "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." 12 O.S.2011 § 2703 (emphasis added). The test for competency of a fact witness is whether the witness has "personal knowledge" of the matter. 12 O.S.2011 § 2602. As the district court recognized, a treating physician has personal knowledge of certain facts regarding a patient's condition. But that does not preclude a treating physician from also rendering an opinion as an expert regarding those facts. The defendants have not cited any authority to support the proposition that a fact witness cannot also testify as an expert witness under appropriate circumstances, and we find none. Even a lay witness is permitted to give opinion testimony in certain circumstances. 12 O.S.2011 § 2701. The defendants did not challenge Dr. Connor's qualifications as a neurologist. Therefore, it was error to exclude his expert opinion based on the facts he perceived as Sanders' treating physician. "In Oklahoma a physician treating a patient may use a medical history provided by the patient when making an opinion on causation of the patient's injury." Christian v. Gray , 2003 OK 10, ¶ 29, 65 P.3d 591.
¶15 Further, the defendants' argument that Dr. Connor cannot testify as an expert because he is a...
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