Shirley v. Smith

• Decision Date: 07 March 1997
• Docket Number: No. 72538,72538
• Citation: 933 P.2d 651,261 Kan. 685
• Parties: Michelle SHIRLEY, Appellee, v. U. Duane SMITH, M.D., Appellant.
• Court: Kansas Supreme Court

Page 651

933 P.2d 651

261 Kan. 685

Michelle SHIRLEY, Appellee, v. U. Duane SMITH, M.D., Appellant.

No. 72538.

Supreme Court of Kansas.

March 7, 1997.

Syllabus by the Court

1. Under K.S.A. 60-422(d), evidence of specific instances of misconduct of a witness relevant only as tending to prove a trait of his or her character is inadmissible where offered for the sole purpose of attacking the credibility of the witness.

2. Evidence of a specific instance of a person's conduct other than evidence of conviction of a crime is inadmissible to prove a trait of the person's character. K.S.A. 60-447.

3. In a medical malpractice action, it is held: (1) The district court did not err in allowing plaintiff to claim economic damages for loss of time spent in self-catheterization, and (2) the erroneous admission of evidence of the Board of Healing Arts' proceedings against defendant was harmless error.

Thomas M. Sutherland, of Holbrook, Heaven & Fay, P.A., Kansas City, argued the cause, and Brent G. Wright, of the same firm, was with him on the briefs, for appellant.

Rene S. Young, of Denning & Young, L.L.C, Salina, argued the cause, and Gary D. Denning, of the same firm, was with her on the briefs, for appellee.

ALLEGRUCCI, Justice:

In this medical malpractice case, the jury returned a verdict of $457,000 in favor of the plaintiff, Michelle Shirley. Dr. U. Duane Smith appealed. Shirley filed a cross-appeal, then abandoned it. The Court of Appeals reversed and remanded for a new trial. Shirley v. Smith, 22 Kan.App.2d 424, 916 P.2d 730 (1996). Shirley filed a petition seeking review of the Court of Appeals' decision on damages and inadmissibility of evidence of the Board of Healing Arts' (BOHA) public censure of Dr. Smith. On July 11, 1996, this court granted Shirley's petition for review.

Shirley raises two issues on appeal: (1) whether her claim for loss of time spent self-catheterizing is economic or noneconomic damages, and (2) whether evidence of the BOHA proceedings against Dr. Smith is admissible.

On April 16, 1991, Dr. Kepka, a family physician in Ellsworth, Kansas, saw Shirley, who complained of abdominal pain. At that time, she was 17 years old and a junior in high school. Dr. Kepka had a blood sample drawn. Based on the low platelet count shown by the laboratory study, Dr. Kepka hospitalized Shirley the following day. He asked Dr. Smith to consult with him.

On April 18, Dr. Smith made three unsuccessful attempts to obtain a bone marrow specimen from Shirley's iliac crest. Shirley testified that she felt pressure during the first attempt and electrical shock sensations during the second and third attempts. Immediately after the procedure, Shirley experienced lower back pain. After she had been taken back to her room and had gotten in bed, "the pain really hit." She was given some pain medication, and then her legs were numb for about an hour.

On April 20, Dr. Kepka transferred Shirley to the hospital in Salina. Shirley was started on cortisone. Her platelet count increased each day. Although encouraged to do so by Dr. Anderson, Shirley adamantly refused to undergo another bone marrow aspiration.

While hospitalized in Salina, Shirley was pressing down on her lower abdomen to make her bladder empty and she complained that when she wiped her perineum it felt numb. Catheterization to check for urine left in the bladder after Shirley tried to empty it produced nearly a liter of urine.

Dr. Anderson looked to see where the needle sticks from Dr. Smith's attempts to take a bone marrow specimen were located "with the idea there's something wrong with the nerves to the bladder and to the perineum." Dr. Anderson saw two marks, which she estimated to be 1/4 inch and 1/2 inch from Shirley's spine. An MRI scan done on April 25 showed blood outside the wrapping around where the nerves descend from the spinal cord and blood within the spinal canal where the spinal fluid is and where the nerves come down from the spinal cord. Nerves pressed and/or irritated by blood do notfunction properly. Dr. Anderson testified that the most likely explanation for the blood being present was that the spinal canal had been punctured during the bone marrow aspiration procedure, either by the Novocaine needle or the bone marrow needle. Dr. Anderson testified that she had never encountered a case of a spontaneous spinal bleed occurring in the lower spine from a low platelet count.

Dr. Manguoglu, a neurosurgeon, was asked to consult when Dr. Anderson found blood in Shirley's spinal canal. He noted two puncture marks "pretty much on the midline" of Shirley's back. Dr. Manguoglu testified that the first "MRI scan showed extensive hemorrhage, intraspinal hemorrhage extending from the mid thoracic region all the way down basically to the tailbone." He testified that within a reasonable degree of medical certainty Shirley's bladder disfunction was permanent and resulted from the hemorrhage. In his opinion, the hemorrhage was caused by her spinal canal being punctured when the puncture marks visible on Shirley's back were made. Dr. Manguoglu gave the opinion that "there was no other explanation why she should suddenly have paralysis and numbness and these complaints." He testified that he had seen the puncture sites and that a patient may experience electrical shock-like sensations if a nerve at that level is touched during a spinal tap.

Dr. Romeiser, a urologist, saw Shirley at the request of Dr. Anderson. He was of the opinion that Shirley's bladder disfunction was "due to the bleed from the bone marrow puncture." He recommended that Shirley be placed on "intermittent self-catheterization, where she takes a catheter and empties her bladder every four hours to keep her bladder from overfilling." The purpose of self-catheterization is to allow her to urinate while lessening the likelihood of urinary infection or damage to the kidneys or bladder.

By the end of May 1991, the amount of urine Shirley retained after emptying her bladder was, in Dr. Romeiser's opinion, at a "tolerable level." He asked her to stop the self-catheterization and changed her antibiotic. Because she had to push on her bladder to urinate, Shirley was again required to intermittently self-catheterize after she had a splenectomy in July 1991.

At the request of Dr. Smith's counsel, Dr. Weigel, a professor of surgery in the division of urology at the University of Kansas Medical Center, examined Shirley in October 1993. He performed "more sophisticated studies" than those used by Dr. Romeiser. He advised that Shirley resume self-catheterization in order to prevent progressive damage from straining "so severely" to empty her bladder. He recommended yearly sonograms to evaluate her kidneys and monitoring for infection. He also recommended that Shirley undergo a surgical procedure, called a pin-up procedure, to keep her from leaking urine when she is in certain positions or is active. According to Dr. Weigel, "[S]he probably would have to self-catheterize after that. I doubt that she could void."

Dr. Riffel, an internist who performs bone marrow aspirations as part of his practice, testified that based on descriptions of the procedure given by Dr. Smith and his assistants, no needle had penetrated Shirley's spinal cord. Dr. Riffel assumed that the aspiration needle was inserted "about three inches to the right" of Shirley's midline. He testified that it would be possible for a needle inserted within a half inch of midline to penetrate the spinal canal.

Another internist who performs bone marrow aspirations, Dr. Neubauer, testified that he would have inserted the needle approximately 2 inches from the spine. In his opinion, bone marrow aspiration attempts at 3 and 21/2 inches from the midline, where the testimony of Dr. Smith and his assistants placed the procedures on Shirley, would meet the standard of care. Dr. Neubauer testified, "Based upon [Dr. Smith's] description of the procedure I don't see how he could have got into the spinal canal."

With regard to her condition at the time of trial, Shirley testified that she still had the problem with leaking urine. She wears a pad when engaging in physical activities. She avoids drinking fluids when she is away from home to cut down on leakage and to avoid having to self-catheterize. At home, the bathroom is set up for the self-catheterization procedure, but elsewhere she requires help from someone who will hold a mirror for her. Shirley must catheterize herself every 4 hours in order to empty her bladder. She estimated it takes her 7 to 10 minutes to complete self-catheterizing process. She anticipated having the surgical pin-up procedure when she had vacation time, and she had been advised by Dr. Romeiser that any children she had should be delivered by Caesarian section.

Future economic loss of $135,000 was a part of the jury's verdict of $457,000 in favor of Shirley. The Court of Appeals concluded that it was reversible error for the trial court to allow Shirley "to claim economic damages for her loss of time spent in catheterizing herself." 22 Kan.App.2d 424, 916 P.2d 730. The Court of Appeals stated: "Plaintiff's claim for loss of time spent self-catheterizing must be included in her claim for noneconomic damages; it cannot be recovered as economic damages or loss." 22 Kan.App.2d at 427, 916 P.2d 730.

The Court of Appeals agreed with Dr. Smith's argument that "time lost while self-catheterizing is a loss of enjoyment of life or an inconvenience, which is not economic damage." 22 Kan.App.2d at 426, 916 P.2d 730. The rationale of the Court of Appeals was stated as follows:

"Since plaintiff testified she could catheterize herself during 'off' time and did not testify that task interfered with her earning capacity in any way, her 'loss of time' cannot be claimed as economic damages. Rather, it properly falls under the noneconomic category that includes loss of enjoyment of life, pain and suffering, and...