Thomas v. Hardwick

• Decision Date: 27 May 2010
• Docket Number: No. 48329.,48329.
• Citation: 231 P.3d 1111
• Parties: Bobbie THOMAS, Individually and as Special Administrator of the Estate of Jesse Ray Thomas; and Brandi Lin Thomas, Appellants,v.Wayne HARDWICK, M.D.; Northern Nevada Emergency Room Physicians; and Washoe Medical Center, Respondents.
• Court: Nevada Supreme Court

231 P.3d 1111

Bobbie THOMAS, Individually and as Special Administrator of the Estate of Jesse Ray Thomas; and Brandi Lin Thomas, Appellants,v.Wayne HARDWICK, M.D.; Northern Nevada Emergency Room Physicians; and Washoe Medical Center, Respondents.

No. 48329.

Supreme Court of Nevada.

May 27, 2010.

Osborne, Ohlson & Hall, Chtd., and Ann O. Hall and John Ohlson, Reno, for Appellants.

Lemons Grundy & Eisenberg and Alice Campos Mercado, Reno, for Respondents, Hardwick and Northern Nevada Emergency Room Physicians.

Piscevich & Fenner and Margo Piscevich, Reno, for Respondent, Washoe Medical Center.

Burris, Thomas & Springberg and Andrew Thomas, Las Vegas, for Amicus Curiae, Nevada Justice Association.

Before the Court En Banc.

OPINION

By the Court, PICKERING, J.:

Bobbie Thomas appeals from a judgment entered on a defense verdict in her wrongful death suit against Dr. Wayne Hardwick, his practice group, and Washoe Medical Center. Her suit alleges that medical malpractice led to her husband's preventable heart attack and death two weeks after Dr. Hardwick saw him for chest pain complaints in WMC's emergency room. On appeal, Thomas asserts that errors by the trial court in managing voir dire, admitting certain evidence, and not imposing meaningful sanctions on WMC for its negligent loss of evidence deprived her of a fair trial. Separately, she appeals the trial court's dismissal on statute-of-limitations grounds of the amended complaint by which her daughter, Brandi, sought to join the suit as an additional named plaintiff.

Not all the errors claimed are properly before this court. Those that are permit reversal and a new trial only if an abuse of discretion affecting substantial rights is shown. Because that showing has not been made, we affirm.

I.

Jesse “Ray” Thomas had undetected, advanced-stage coronary artery disease. On January 13, 2003, two weeks before his fatal heart attack, he went to WMC's emergency room, complaining of chest pains and sweatiness. The electrocardiogram and troponin tests Dr. Hardwick ran ruled out recent heart attack but not cardiovascular disease as the cause of his symptoms. The core question at trial was what Dr. Hardwick told Mr. Thomas when he saw him in the emergency room on January 13. Did Ray Thomas leave the hospital that day against medical advice, as respondents WMC and Dr. Hardwick maintain? Or was Ray Thomas told he was “fit as a fiddle” and could safely leave, as appellant Bobbie Thomas maintains?

The evidence at trial was that Ray Thomas's heart disease may have been treatable if it had been diagnosed earlier. The tests run in the emergency room did not rule out cardiovascular disease, which Mr. Thomas's chest pains and other symptoms suggested he might have. The standard of care required Dr. Hardwick to counsel Mr. Thomas to agree to be admitted to the hospital for observation and testing, especially since Mr. Thomas's history disclosed he had no regular primary care physician.

A copy of Mr. Thomas's hospital chart was authenticated in discovery and used at trial.¹ The chart reflects that he left the emergency room on January 13, 2003, against medical advice or “AMA.” It contains an order by Dr. Hardwick directing hospital staff to ask Mr. Thomas to sign an AMA release, but no signed release was ever produced. Dr. Hardwick sees thousands of patients each year and could not recall Mr. Thomas specifically. Based on his dictated chart notes and customary practice in treating chest pain patients, Dr. Hardwick testified that he urged Mr. Thomas to be admitted for observation and testing but he refused. An attending nurse gave similar testimony about her handwritten chart notes, which said the patient was “refusing to be admitted. M.D. aware.”

Bobbie Thomas disputed this evidence. She testified that she came to the emergency room with her husband and sat in on his conversations with Dr. Hardwick. She remembered Dr. Hardwick saying that, while he normally urged chest pain patients to be admitted, her husband's preliminary test results were good enough for him to go home, so long as he followed up promptly with a private physician. A family member arrived as the Thomases were preparing to leave. He recalled Ray Thomas saying, within earshot of Dr. Hardwick, who said nothing, that the doctor had told him he was lucky and could safely leave.

Mr. Thomas's symptoms subsided before he left the emergency room. Hospital staff gave the Thomases papers suggesting he follow up with a personal physician and return to the emergency room immediately if his chest pains recurred or he experienced unusual sweating or problems breathing. One form warned that chest pain could indicate a life-threatening condition; another provided names and addresses of follow-up health care options. A fellow worker testified that Mr. Thomas complained about not feeling well the day before his fatal heart attack. However, Mr. Thomas did not seek further medical care after leaving the emergency room beyond calling several physicians' offices to ask about possible care.

Trial lasted five days. The parties presented a number of witnesses, including experts. After deliberating for less than two hours, the jury returned a unanimous verdict finding no negligence.

II.

A. Voir dire

Thomas's first assignment of error concerns voir dire about tort reform. The ruling Thomas complains about originated in an omnibus motion in limine that Thomas herself filed. In it, Thomas moved for an order prohibiting “[a]ny and all reference, mention or citation to Tort Reform or ‘Keep our Doctors in Nevada’ ” on the grounds these “are highly politicized topics ... which do not have any bearing upon the ultimate issues in this trial.” ² Both WMC and Dr. Hardwick filed statements of nonopposition, agreeing with Thomas. Correcting her motion, Thomas filed a short reply asking to carve voir dire out of her proposed order in limine regarding tort reform.³

The issue came up briefly at the first of two pretrial conferences. At the conference, WMC offered the view that, “If [Thomas's lawyers] want to ask [prospective jurors] generally, do you have a problem in a malpractice case, do you believe that people can legitimately bring a malpractice case[ ], ... I don't have a problem with it.” But, WMC argued, “it's totally inappropriate to ask somebody how they voted on a referendum, and what they thought about the Keep our Doctors in Nevada referendum.” ⁴ The district court partially agreed, cautioning the lawyers that it did not “want references to voting, to tort reform, [or] to Keep our Doctors in Nevada” in general voir dire. However, this was neither the blanket prohibition nor definitive ruling Thomas makes it out to be. The district court urged the lawyers instead to

... [g]et it closer to the facts of this case. Do you have any strong feelings one way or the other about people who sue their doctor or their hospital and the claim that the doctor and the hospital caused them injury, the damage[?] Anybody who, for whatever reason in their life would not be able to be fair and impartial and listen to all the testimony[?] Those types of questions are fine.

By prior order, the district court had deferred final ruling on voir dire about medical malpractice reform “until filing of pre-trial statements and proposed voir dire questions.” She reiterated that her final ruling would depend on the specific voir dire questions the lawyers proposed in their written pretrial statements:

... if there's some questions that you feel are important to the fact pattern, if you put them in your pretrial statement ... I will read those, and then we can talk about them or modify them as the Court might deem necessary.

The judge also invited sidebars at trial: “[I]f something comes up in jury selection, and any of you feel that there's a burning question that has to be asked that's a little bit broader, a little more political, ask for a sidebar, and we can talk about it.”

This is all there is in the record on voir dire. No final written order was entered, the voir dire wasn't transcribed, and the appendix does not include the pretrial statements or any proposed written voir dire. The record contains no copies of advertisements or literature about medical malpractice tort reform, to which the venire might have been exposed, or proof of when and to what extent such literature was disseminated. At oral argument, Thomas's counsel acknowledged that she did not prepare and submit any proposed voir dire questions concerning medical malpractice reform, despite the district court's request for them.

Appellant has the responsibility to order the transcripts and assemble the record needed to decide the issues raised on appeal. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (citing NRAP 30(b)(3)). Not having voir dire transcripts hamstrings our review. See Riggins v. State, 107 Nev. 178, 182, 808 P.2d 535, 538 (1991) reversed on other grounds Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (declining to review an order refusing sequestered voir dire when the relevant transcripts were not ordered; if “the record on appeal ... [does not] contain[ ] the material to which [the objecting party takes] exception ..., the missing portions ... are presumed to support the district court's decision”). Adhering to Riggins, we presume that the venire was asked the question the district court suggested (“Do you have any strong feelings one way or the other about people who sue their doctor or their hospital and the claim that the doctor and the hospital caused them injury?”), the related questions defense counsel suggested (“[D]o you have a problem in a malpractice case?”; “[D]o you believe that people can legitimately bring a malpractice case[ ]?”), and all appropriate follow-up.

In Nevada, the right to attorney voir dire is secured by statute. NRS 16.030(6) discussed in Whitlock v. Salmon, 104 Nev. 24, 752 P.2d 210 (1988). The...