Smyth v. Kaufman

• Decision Date: 30 April 2003
• Docket Number: No. 02-38.,02-38.
• Citation: 2003 WY 52,67 P.3d 1161
• Parties: Elizabeth C. SMYTH and Donald G. Smyth, Appellants (Plaintiffs), v. Stephen L. KAUFMAN, M.D. and Michael D. Kellam, M.D., Appellees (Defendants).
• Court: Wyoming Supreme Court

67 P.3d 1161

2003 WY 52

Elizabeth C. SMYTH and Donald G. Smyth, Appellants (Plaintiffs), v. Stephen L. KAUFMAN, M.D. and Michael D. Kellam, M.D., Appellees (Defendants).

No. 02-38.

Supreme Court of Wyoming.

April 30, 2003.

Representing Appellants: Philip A. Nicholas and Jason M. Tangeman of Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, Wyoming.

Representing Appellee Kaufman: Jeffrey C. Brinkerhoff of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellee Kellam: Frank D. Neville and Jason A. Neville of Williams, Porter, Day & Neville, Casper, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Elizabeth Smyth and her husband, Donald, claimed medical malpractice arising out of an alleged misdiagnosis of the cause of compromised blood flow in Mrs. Smyth's left foot and leg. As a result of the alleged misdiagnosis, Mrs. Smyth's left foot and leg were amputated in three successive medical procedures. In their suit against the doctors involved, the Smyths alleged it was discovered after the amputations that the drug Cafergot caused the decreased blood flow in Mrs. Smyth's left leg and discontinuing the drug would have restored circulation and prevented the amputations.

[¶ 2] After a lengthy trial, the jury returned a verdict with no finding on the question of whether Stephen Kaufman, M.D. and Michael Kellam, M.D. failed to meet the standard of care and answering "no" to the question of whether any such failure caused Mrs. Smyth's injury. The Smyths appeal, claiming abuses of discretion by the trial court in rulings concerning (1) peremptory challenges, (2) admission and exclusion of evidence relating to their claims against a third doctor with whom they settled, and (3) their motion for a new trial based on juror confusion. We affirm.

ISSUES

[¶ 3] The Smyths present the following issues:

1. Whether it was an abuse of discretion to afford defendants a total of six peremptory challenges and limiting the plaintiffs to only four peremptory challenges?

2. Whether it was an abuse of discretion to allow defendants to elicit evidence and argue to the jury that negligence of Dr. Reckling occurred based simply on the fact that he had been sued by plaintiffs; then, excluding relevant evidence to the contrary from the jury by permitting defendants to omit critical parts of the deposition of plaintiffs' expert that Dr. Reckling's care was acceptable?

3. Whether it was error to deny plaintiffs' motion for new trial based on jurors' belief that their partial verdict would result in a hung jury that would entitle plaintiffs to a new trial?

Dr. Kaufman phrases the issues as follows:

A. Whether the jury verdict may be attacked on the basis of allocation of peremptory challenges when [the plaintiffs] failed to make a record at the time of jury selection of which juror they opposed, passed the jury for cause, failed to challenge the juror in question for cause, and failed to use an available peremptory challenge against her and, in any event, whether the trial court properly allocated peremptory challenges in light of the circumstances and inherent antagonism between the defendants?

B. Whether the trial court properly admitted evidence that plaintiffs originally blamed Dr. Reckling to allow defendants the opportunity to have all actors on the verdict form and avoid the misleading and prejudicial inference that the defendants and not the plaintiffs had blamed Dr. Reckling; whether the evidence of the lawsuit was, in any event, admissible for purposes of showing the bias of Dr. Reckling as a plaintiffs' witness at trial; and whether the trial court properly declined to allow plaintiffs to supplement sworn deposition testimony by reading to the jury a document that was hearsay and without foundation.

C. Whether the trial court properly denied the motion for a new trial because the jury unanimously agreed that the defendants did not cause injuries, plaintiffs waived any irregularities in the verdict by not advising the court, the jurors individually affirmed their verdict when polled, and no improper influence or communication occurred during deliberations.

Dr. Kellam did not set out the issues in his brief.

FACTS

[¶ 4] On April 3, 1998, Mrs. Smyth, then fifty-one years old, went to the office of Carlton Reckling, M.D. for a follow-up examination after she had a knee replacement and rod surgery on her left leg. She reported experiencing pain, coldness, and discoloration of her left foot. Dr. Reckling noted in her chart that she was suffering from ischemic feet, or lack of blood flow in the feet. He told her she should contact him if the condition worsened and he would arrange for her to have a vascular evaluation in the emergency room.

[¶ 5] The next day, April 4, 1998, the pain had worsened, and Mrs. Smyth went to the emergency room. The emergency room physician ordered an ultrasound, which showed poor arterial flow in her left foot. He contacted Dr. Reckling as well as Dr. Kellam, the on-call interventional radiology specialist. Dr. Kellam ordered an angiogram, which showed a blockage and collateral vessels around the left knee and an absence of blood flow from the mid-calf into the foot, symptoms indicative of atherosclerosis and a blood clot. He administered Priscoline, a vasodilator, to open up the vessels, loosen the clot, or allow blood flow around the blockage. Although Priscoline is a recognized treatment for vasospasms, Dr. Kellam did not see vasospasms on the angiogram and, therefore, did not administer Priscoline with vasospasms in mind. In any event, the Priscoline had no effect. Dr. Kellam reported his findings of atherosclerosis and a blockage, most likely a clot, to Dr. Reckling. He ordered another medication to be administered through the night in an effort to break up the clot, performed a second angiogram which showed the treatment had no effect, reported those findings to Dr. Reckling, and had no further involvement with Mrs. Smyth.

[¶ 6] Mrs. Smyth remained in the hospital and, on April 6, 1998, at the request of Dr. Reckling, was seen by Dr. Kaufman, a vascular surgeon, for a vascular consult. Dr. Kaufman examined Mrs. Smyth's foot, reviewed the angiograms, consulted with Dr. Kellam, and diagnosed Mrs. Smyth as having an ischemic limb related to atherosclerosis and secondary blood clot. He concluded that surgery to bypass the blockage was not an option. He advised Dr. Reckling that administering additional medications might possibly restore blood flow but it was likely Mrs. Smyth would need an amputation. Dr. Kaufman had no further involvement with Mrs. Smyth.

[¶ 7] Mrs. Smyth remained in the hospital under the treatment of Dr. Reckling. Her condition continued to deteriorate, and, on April 8, 1998, Dr. Reckling amputated her foot and ankle. The amputation site failed to heal properly, and, on June 12, 1998, Dr. Reckling performed two more amputations, resulting in an above-knee amputation on her left leg.

[¶ 8] Two weeks later, Mrs. Smyth began experiencing identical symptoms in her right foot. Dr. Reckling again requested a vascular consult to address the problem. Dr. Kaufman's partner, Richard Fermelia, M.D., was the on-call vascular surgeon this time. Dr. Fermelia examined Mrs. Smyth and reviewed the April angiograms. He was unable to take a new angiogram because the radiology suite was not in operation and recommended that Mrs. Smyth be transferred to Denver, Colorado.

[¶ 9] Mrs. Smyth arrived at the University of Colorado Medical Center on June 25, 1998, where she was seen by Thomas Whitehall, M.D. He ordered an angiogram and immediately concluded Mrs. Smyth was suffering from vasospasms. After taking steps to return blood flow to her right leg, Dr. Whitehall questioned Mrs. Smyth about what drugs she was taking, specifically migraine headache medication. Upon learning she was taking Cafergot, he concluded it was the cause of the vasospasms.

[¶ 10] Prior to Dr. Whitehall seeing Mrs. Smyth, none of the physicians attributed the loss of blood flow in Mrs. Smyth's left leg to the Cafergot she was taking. Although a list of her medications, including Cafergot, was provided to the hospital when she arrived, Drs. Kellam and Kaufman were not aware she was taking the medication. On April 7 and 8, 1998, Mrs. Smyth was administered Cafergot by hospital staff.

[¶ 11] Prior to April of 1998, Mrs. Smyth had been taking Cafergot for migraine headaches for approximately twenty years. A side effect of Cafergot is vasospasms, or spasming of the blood vessels, which restricts blood flow and can stop the flow of blood to the extremities. In severe cases of Cafergot toxicity, blood flow to the extremities can be restricted to such an extent that amputation of a limb becomes necessary. Vasospasms appear in angiograms as long, smooth narrow blood vessels tapering off to nothing. Neither Dr. Kellam nor Dr. Kaufman saw vasospasms on the angiograms taken of Mrs. Smyth's left leg in April of 1998.

[¶ 12] On April 4, 2000, the Smyths brought a medical malpractice claim against Drs. Reckling, Kaufman, and Kellam; Stanley Hartman, M.D. (the emergency room physician); and the Board of Trustees of Memorial Hospital of Laramie County d/b/a United Medical Center (UMC) alleging negligence in failing to identify vasospasms on the initial angiogram, misdiagnosis of Mrs. Smyth's condition as atherosclerosis, failure to consider medications—specifically Cafergot—as part of the differential diagnosis, and failure to discontinue Mrs. Smyth's use of Cafergot. The Smyths voluntarily dismissed their claims against UMC and Dr. Hartman. Dr. Reckling settled with the Smyths and was dismissed from the case prior to trial. The case proceeded to trial against Drs. Kaufman and Kellam on June 18, 2001, and a verdict was returned June 29, 2001. The verdict form reflected the jury reached no finding on whether Drs. Kaufman and Kellam failed to meet the standard of care but found...