Stickney v. Wesley Medical Center, 60773

• Decision Date: 20 January 1989
• Docket Number: No. 60773,60773
• Parties: Charles R. STICKNEY, Appellant, v. The WESLEY MEDICAL CENTER, A Corporation, and Ron Morford, M.D., Appellees.
• Court: Kansas Supreme Court

Page 253

768 P.2d 253

244 Kan. 147

Charles R. STICKNEY, Appellant, v. The WESLEY MEDICAL CENTER, A Corporation, and Ron Morford M.D., Appellees.

No. 60773.

Supreme Court of Kansas.

Jan. 20, 1989.

Syllabus by the Court

In an appeal by the plaintiff in a medical malpractice action, the record is examined and it is held that the trial court did not commit reversible error in: (1) ruling that impeachment evidence would be admissible if plaintiff introduced the discovery deposition of a deceased witness; (2) its rulings upon the admissibility of evidence; (3) its rulings upon objections to certain areas of cross-examination of various witnesses; and (4) the admission of collateral source benefits evidence.

William L. Fry of Fry, Reynolds & Reeves, P.A., Wichita, argued the cause and was on the brief for appellant.

Carl L. Wagner of Boyer, Donaldson & Stewart, Wichita, argued the cause and was on the brief for appellee Wesley Medical Center.

Timothy B. Mustaine of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and was on the brief for appellee Ron Morford, M.D.

HOLMES, Justice:

Charles R. Stickney, the plaintiff in a medical malpractice action, appeals from a jury verdict finding that neither of the defendants committed medical malpractice nor was negligent in the treatment of the plaintiff. The Court of Appeals, in an unpublished opinion filed July 15, 1988, 758 P.2d 755, reversed the judgment and ordered a new trial on the basis that the admission of collateral source benefits evidence was inherently prejudicial. The Court of Appeals did not address the other issues asserted by Mr. Stickney in his appeal. We granted petitions for review filed by The Wesley Medical Center (Wesley) and Ron Morford, M.D., the two original defendants.

On September 30, 1983, at about 3:30 a.m., Charles R. Stickney was involved in an auto accident in Wichita while en route to work. He was transported by ambulance to Wesley. Ambulance personnel had placed Stickney on a spine board and had protected his neck against movement with a cervical collar and foam wedges. These precautions were standard procedure routinely undertaken with victims of automobile accidents. Stickney and the spine board were transferred from the ambulance to a hospital gurney at Wesley and wheeled to its emergency room.

Upon Stickney's arrival at the emergency room, Jeanmarie Epperly, a nurse assistant, and Dr. Ron Morford, the emergency room physician, attended to the plaintiff. Stickney did not report any neck pain or tenderness, and neither Epperly nor Morford, during their initial examinations of Stickney, observed any other signs normally associated with neck injuries.

Dr. Morford sent Stickney to the x-ray lab for the purpose of obtaining x-rays of his chest and left elbow. Stickney was still confined to the spine board with his neck protected by the cervical collar and foam restraints. During this period Stickney's wife and daughter arrived at Wesley. Upon his return from x-ray, Stickney was asked to sit up or stand up so the spine board could be removed from the gurney and returned to the ambulance personnel. He sat up and put his legs over the side of the gurney. Epperly testified that after 10 to 15 seconds Stickney insisted on standing up, even though she had told him to wait two to three minutes before he stood up. His daughter testified that Stickney slid off the side of the gurney toward the floor, his head slumping forward, and that her mother blocked his fall with her arm. Stickney broke out in a sweat, appeared to be short of breath, and complained of dizziness, chest pain, and neck pain. Epperly testified that she held Stickney's arm while calling for help, that he was laid back down on the gurney, and that he did not fall to the floor.

After Stickney's condition stabilized, Dr. Morford ordered an x-ray of his cervical spine, which revealed a fracture of the second cervical vertebra. Stickney subsequently developed a number of complications, necessitating a prolonged hospital stay.

Stickney filed this lawsuit on September 26, 1985, seeking damages for injuries and other losses sustained because of the alleged malpractice of Wesley and Dr. Morford. After a lengthy trial, the jury returned a verdict finding none of the parties to be at fault.

At the trial, collateral source benefits evidence was admitted pursuant to K.S.A. 1987 Supp. 60-3403 (subsequently held unconstitutional in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 [1987], and since repealed). The Court of Appeals reversed the judgment in this case in reliance upon Farley and our recent decision in Harrier v. Gendel, 242 Kan. 798, 751 P.2d 1038 (1988). Additional facts will be set forth as they become relevant to the various issues on appeal.

The first issue is whether the trial court erred in ruling that, if plaintiff introduced Dr. Charles Girod's deposition into evidence, the defendants would be permitted to admit certain evidence for impeachment purposes. In the pretrial conference order filed January 27, 1987, Charles Girod, M.D., deceased, was identified by the plaintiff as a witness by deposition. Dr. Girod had been deposed during discovery proceedings by attorneys for the defendants. Dr. Girod died after the deposition was taken but before trial. Defendant Wesley had filed a motion in limine to prohibit introduction of Dr. Girod's deposition, arguing that the deposition allowed inadequate opportunity for cross-examination of Dr. Girod as plaintiff's expert witness. The motion was denied.

On February 13, 1987, Wesley filed a motion seeking permission to introduce evidence that Dr. Girod's staff privileges at El Dorado Hospital had been terminated. Following a hearing on the motion, the court ordered production of the documents alleged to be pertinent to the matter and ordered that they be made available to all counsel. The judge specifically reserved until trial the issue of whether the documents or related testimony would be admissible. Although no record was made of the February 20 hearing on the motion, a journal entry reflecting the proceedings and the trial court's orders was filed February 27, 1987. The journal entry was approved by plaintiff's counsel.

On March 6, 1987, plaintiff filed a motion in limine, in part asking the court to prohibit defendants from presenting any evidence maligning the reputation of Dr. Girod. At trial, counsel for Wesley again requested that the court disallow Dr. Girod's discovery deposition. The trial court declined to reverse the earlier ruling allowing admission of the deposition. Wesley then renewed its motion to admit impeachment evidence. Specifically, Wesley sought to introduce evidence that Dr. Girod had falsified hospital records pertinent to a medical malpractice case in which he was involved while on the medical staff of El Dorado Hospital and that following peer review proceedings his privileges at the hospital were terminated. Dr. Girod's deposition testimony had been to the contrary in that he asserted he had not been the subject of any disciplinary proceedings, had not been subjected to peer review proceedings by the hospital, had been cleared of everything, and had voluntarily resigned because of politics and disagreement with the hospital administrator. The trial court held that the defendants would be permitted to impeach Dr. Girod's deposition testimony. Plaintiff's counsel then moved for a mistrial, arguing that the court's ruling was unfair and a complete surprise. The court denied the motion. Plaintiff proceeded with the trial but elected not to introduce Dr. Girod's deposition.

The plaintiff argues that the trial court reversed its earlier ruling prohibiting defendants from introducing the impeachment evidence. He contends that the ruling was a complete surprise and was a gross abuse of discretion and that the hospital documents proposed by the defense for introduction were inadmissible hearsay evidence under K.S.A. 1987 Supp. 60-460. He also argues that the impeachment evidence would have been so highly prejudicial as to render Dr. Girod's deposition worthless. Plaintiff's arguments that he was surprised and that the court's ruling was a reversal of a prior ruling are totally without merit. In a journal entry filed over three months prior to trial, which was approved by plaintiff's counsel, the court stated: "The Court specifically reserves until the time of trial any and all rulings upon the admissibility into evidence of any of the above documents [the hospital records relating to Dr. Girod's hospital privileges] or testimony relating to said documents." Plaintiff's counsel should not have been surprised by the position asserted by Wesley or by the court's ruling on this matter.

On cross-examination of an expert witness, great latitude is necessarily indulged in order that the intelligence of the witness, his powers of discernment, and his capacity to form a correct judgment may be submitted to the jury so it may have an opportunity for determining the value of the testimony. Bourgeois v. State Highway Commission, 179 Kan. 30, 34, 292 P.2d 683 (1956). In Bott v. Wendler, 203 Kan. 212, 228, 453 P.2d 100 (1969), this court stated:

"The latitude permitted in the cross-examination of an expert witness is even wider than in the case of an ordinary opinion witness. No rule can be laid down that would determine the extent and limitation of cross-examination allowable in every case. Generally speaking, the matter must rest in the sound discretion of the judge trying the case."

It is true that the evidence the defendants proposed to use to impeach Dr. Girod's testimony would have been extremely prejudicial and damaging. However, it is also clear that, if it had not been for the untimely death of Dr. Girod, the evidence could have been used in cross-examination of his live testimony. We think it was equally admissible when plaintiff desired to use the discovery deposition taken by de...