Suarez Matos v. Ashford Presbyterian Community Hosp., Inc.

• Decision Date: 07 May 1993
• Docket Number: 92-1914 and 92-2469,92-1862,92-1891,Nos. 92-1861,s. 92-1861
• Parties: 37 Fed. R. Evid. Serv. 874 Karen SUAREZ MATOS, et al., Plaintiffs, Appellees, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., et al., Defendants, Appellees, Corporacion Insular De Seguros, Inc., Defendant, Appellant. Karen SUAREZ MATOS, et al., Plaintiffs, Appellees, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., Defendant, Appellant. Karen SUAREZ MATOS, et al., Plaintiffs, Appellants, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., et al., Defendants, Appellees. Karen SUAREZ MATOS, et al., Plaintiffs, Appellees, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., et al., Defendants, Appellees, Dr. Jose I. Carrasco, Defendant, Appellant. Karen SUAREZ MATOS, et al., Plaintiffs, Appellees, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., et al., Defendants, Appellees, Corporacion Insular De Seguros, Inc., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 47

4 F.3d 47

37 Fed. R. Evid. Serv. 874

Karen SUAREZ MATOS, et al., Plaintiffs, Appellees, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., et al., Defendants, Appellees, Corporacion Insular De Seguros, Inc., Defendant, Appellant.

Karen SUAREZ MATOS, et al., Plaintiffs, Appellees, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., Defendant, Appellant.

Karen SUAREZ MATOS, et al., Plaintiffs, Appellants, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., et al.,

Defendants, Appellees.

Karen SUAREZ MATOS, et al., Plaintiffs, Appellees, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., et al., Defendants, Appellees, Dr. Jose I. Carrasco, Defendant, Appellant.

Karen SUAREZ MATOS, et al., Plaintiffs, Appellees, v. ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., et al., Defendants, Appellees, Corporacion Insular De Seguros, Inc., Defendant, Appellant.

Nos. 92-1861, 92-1862, 92-1891, 92-1914 and 92-2469.

United States Court of Appeals, First Circuit.

Heard May 7, 1993.

Decided Sept. 13, 1993.

Igor J. Dominguez with whom Igor J. Dominguez Law Offices, was on briefs, for Ashford Presbyterian Community Hosp., Inc.

Rafael Fuster-Martinez with whom Carlos Martinez-Texidor, Martinez-Texidor & Fuster and Igor Dominguez, were on briefs for Ashford Presbyterian Community Hosp., Inc.

Efren T. Irizarry-Colon with whom Elisa M. Figueroa-Baez Irizarry-Colon and Soler & Banuchi Law Offices, were on briefs, for Dr. Jose I. Carrasco.

Eugene F. Hestres, with whom Bird, Bird & Hestres, was on briefs, for Corporacion Insular De Seguros.

Charles A. Cordero, with whom Cordero, Miranda & Pinto, for Karen Suarez Matos, et al.

Before BOUDIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and STAHL, Circuit Judge.

REVISED OPINION

ALDRICH, Senior Circuit Judge.

Plaintiff Karen Suarez Matos, a resident of New York vacationing in Puerto Rico, was taken to defendant Ashford Presbyterian Community Hospital in San Juan on October 30, 1989 on an emergency basis. A uterine tumor, or myoma, was removed the following day, and thereafter examined by defendant Doctor Jose Carrasco, a pathologist on the staff of the hospital. He, allegedly, reported it was benign. On discharge with that diagnosis plaintiff was advised to follow up with a New York doctor, two names being given. Beyond a clinic visit, this she failed to do, but after five months she again felt pain and was found, too late, cancerous beyond cure. It was concluded that her tumor had been an unusual type, and malignant or in danger of becoming so, calling for careful watching. Concededly she had not been so advised. A district court jury found Doctor Carrasco guilty of malpractice, and that the hospital was chargeable for his conduct. It awarded $1,325,000 against both, which included $650,000 for future medicals and care, with an additional $250,000 in favor of plaintiff Carmen Matos, Karen's mother. ¹ By prior stipulation it followed that defendant Corporacion Insular de Seguros, Inc. (CIS), defendants' insurer, was liable. ² The court refused to recognize the policy limits of $250,000 per incident and entered judgments against CIS for the full amounts. Appeals followed.

The appeals raise a number of matters: whether the evidence warranted the finding of malpractice against Doctor Carrasco; whether his conduct was chargeable to the hospital; whether the court erred in disregarding the policy limits; and evidentiary questions of damages. In addition, there is a question whether there should be a new trial because of improper argument. Our overall conclusion is that while there was evidence warranting findings against defendants, a new trial is called for.

The initial question is whether a finding of negligence was warranted against Doctor Carrasco. The evidence here is singular. With their early witnesses plaintiffs made a good showing that the tumor was unusual--one in 500--and that if it had been recognized as unusual a further study should have been made to inquire as to possible malignancy. However, they made a doubtful showing whether a mistake in failing to recognize would amount to malpractice. Second, plaintiffs' doctors agreed that Doctor Carrasco's report to the surgeon denied malignancy, their testimony revolving around the words used in the report. The report described the tumor as a leiomyoma-leiomyoblastoma. A Doctor Lazarevic, a pathologist called by plaintiffs, testified that the second word meant benign, and that if there were malignant cells this word should have been leiomyosarcoma. Doctor Lopez, the admitting physician, testified that he looked up the term leiomyoblastoma in a medical dictionary and found it meant "usually benign." However, he testified that Doctor Carrasco told him that blastoma meant non-cancerous. Doctor Juncosa, the operating physician, though without referring to a dictionary, confirmed Doctor Lazarevic. He testified, without objection, that Doctor Lopez had told him that Doctor Carrasco had told him, Doctor Lopez, that the tumor was benign.

In this circumstance one might have expected Doctor Carrasco to testify that he had made an honest mistake in his diagnosis, and had, accordingly, not pursued the matter. Instead, after testifying that he was expecting a "routine leiomyoma" he stated,

"Upon looking at it I noticed immediately, this is not a routine leiomyoma, not the typical leiomyoma, benign lesion.... Leiomyoblastoma is a tumor that nobody knows exactly what it is going to do. Many of them become outright malignant within three months.... Leiomyoblastoma, which now should be called stromal tumor of uncertain malignant potential--which is my diagnosis--this tumor should be considered, by anyone who knows anything about medicine--not by dictionaries, but anyone who is up to date, who has gone to all the latest meetings--as a tumor of definite malignant potential.... Leiomyoblastoma is the name. If you know pathology you know the name. If you are a surgeon and you don't know that name, you better stop acting as a surgeon."

In addition to the warning that Doctor Carrasco testified was thus apparent on the face of the report, he stated he had told Doctor Juncosa the above and had shown him a book confirming it.

From the jury's standpoint the case was complicated by a Doctor Killackey, from New York, who, though admittedly not a pathologist, testified that Doctor Carrasco's procedures deviated from the standards of medicine because his diagnosis was "completely incorrect," which, of course, is not the test, and that Doctor Carrasco "doesn't really know what it [leiomyoblastoma] is." She added that the dictionary meaning was not important. ³

Without reviewing further, it is enough to say, though difficult, that the jury could combine Doctor Carrasco's admission that he knew of the possibility of malignancy and Doctor Juncosa's statement that Doctor Carrasco told him the reverse, and thus prevent an ordered judgment for defendants. In other words, the jury could find that Doctor Carrasco admittedly knew that the tumor was dangerous but did not adequately convey this to the operating doctor so that the vital warning never reached the plaintiff.

In this contest of credibility defendants were hurt by two improprieties. The first was the court's allowing plaintiffs after calling a Doctor Miranda, to cross-examine him as a hostile witness because defendants had named him, pretrial, as their proposed expert. This was error.

Fed.R.Evid. 611(c) reads as follows.

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

This is an enlargement of a prior rule, and necessarily involves some factual interpretation, but we divide it into two categories; a witness who is an adverse party or identified with one, or is affirmatively viewable as hostile because of the situation, viz., classifiable in advance as hostile, Ellis v. City of Chicago, 667 F.2d 606, 612-13 (7th Cir.1981), and witnesses who demonstrate hostility during trial, United States v. Brown, 603 F.2d 1022, 1025-26 (1st Cir.1979). Doctor Miranda had no prior connection as part of the scene, Ellis, ante, or otherwise, Chonich v. Wayne Cty. Community College, 874 F.2d 359, 368 (6th Cir.1989), as, for example, an employee, Perkins v. Volkswagen of America, Inc., 596 F.2d 681, 682 (5th Cir.1979), or a defendant's girlfriend, United States v. Hicks, 748 F.2d 854 (4th Cir.1984). We find no case involving the adversary's proposed expert, or suggesting that simply because a party expects favorable testimony from a witness, the opponent is entitled to call him, or her, as hostile. If a party proposes to call a happenstance witness to an accident, does that mean the other can call him and cross-examine? The obligation to name witnesses, about to be expanded, is intended to give opportunity to prepare, not to afford procedural advantages. We add that the court's rule would tend to make experts who are reluctant to appear in the first place even more reluctant if they are to start with rigorous cross-examination before they have even made their statement.

Conceivably plaintiffs might have done as well by waiting and cross-examining Doctor Miranda after he had testified for defendants. In any event, defendants did not object to the court's allowing cross-examination and, while regarding the course followed as undesirable practice, we would not find it to be plain error affecting substantial rights where no one objected to it. However, our concern with this issue pales compared with plaintiffs' closing argument that the court, rather than correcting, cf. Gonzalez-Marin v. Equitable Life Assur. Soc., 845 F.2d 1140 (1st Cir.1988), called permissible. To begin with, counsel...