Walters v. Hitchcock
| Decision Date | 05 April 1985 |
| Docket Number | No. 56551,56551 |
| Citation | 237 Kan. 31,697 P.2d 847 |
| Parties | Lillian K. WALTERS, Appellee, v. C. Thomas HITCHCOCK, M.D., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a hearing seeking an order recalling jurors for inquiry into alleged juror misconduct pursuant to Supreme Court Rule 181 (232 Kan. clvi), the burden is on the moving party to show the necessity for the order.
2. Generally, an affidavit of counsel containing statements purportedly made by jurors to the counsel is an insufficient basis on which to predicate error in a trial court's refusal to issue an order pursuant to Supreme Court Rule No. 181 (232 Kan. clvi) for the recall of jurors for inquiry of alleged juror misconduct.
3. In a medical malpractice action, the record is examined and it is held: (1) The trial court did not err in refusing to grant a new trial on the ground of alleged misconduct of plaintiff's counsel in closing argument; (2) the trial court did not abuse its discretion in restricting testimony of an expert witness; (3) the trial court did not err in refusing to order the recall of jurors pursuant to Supreme Court Rule No. 181 (232 Kan. clvi); and, (4) the verdict of the jury is not excessive.
M. Warren McCamish, of Williamson & Cubbison, Kansas City, argued the cause and was on the brief for appellant.
Gloria M. Vusich and Felix G. Kancel, Kansas City, argued the cause, and were on the brief for appellee.
This is a medical malpractice action wherein plaintiff Lillian K. Walters received a $2,000,000 damage award against defendant C. Thomas Hitchcock, M.D. The defendant physician appeals from the jury's verdict and certain pretrial and post-trial rulings of the district court.
The facts may be summarized as follows. In December, 1979, a lump on the neck of Lillian Walters was discovered by her family physician. Mrs. Walters was, at the time, approximately 32 years of age, married, with four minor children. She was not employed outside the home. The family physician conducted a number of tests and advised her to consult with a surgeon. Mrs. Walters was seen by defendant Hitchcock, a surgeon, on January 7, 1980. As a result of the prior testing and his physical examination of her, Dr. Hitchcock recommended surgical removal of diseased areas of the thyroid gland. There were indications of a possibly malignant condition. Surgery was scheduled for January 22, 1980. Mrs. Walters was advised the operation was a relatively low risk procedure with an anticipated three-day hospital stay and a small residual scar.
The operation proceeded in what appeared at the time to be a routine manner. Specimens were sent to the pathology laboratory and no malignancy was detected. The patient was sutured and sent to the recovery room. One day later Mrs. Walters' condition rapidly deteriorated. Her head ballooned in size, she became blind and suffered extreme respiratory distress. She was taken to the intensive care unit where a breathing tube was inserted. Shortly thereafter, Dr. Hitchcock was advised by the hospital pathology department that a one inch by one and one-half inch piece of esophagus tissue was connected to the thyroid specimen sent to the laboratory during surgery. Mrs. Walters' wound was now badly infected. She was taken to surgery. Dr. Hitchcock reopened the wound and observed a significant hole in the left front portion of her esophagus. He concluded that repair was not possible and sewed the esophagus shut--thereby closing it permanently.
At this point feeding was possible only through a tube inserted directly into Mrs. Walters' stomach. She regained her vision. Numerous hospitalizations and surgical procedures followed. Ultimately, colon interposition surgery was performed which involved making a sort of bypass esophagus from a portion of Mrs. Walters' colon. Additional facts relative to Mrs. Walters' condition and the quality of her life will be set forth in the discussion of the issue relative to the amount of damages awarded herein.
Mrs. Walters brought this action against Dr. Hitchcock based upon negligence in cutting into the esophagus and in failing to make prompt repair thereof. She sought $4,000,000 in damages. Dr. Hitchcock denied negligence and blamed the injury to the esophagus on the abnormal physiology of Mrs. Walters. The jury awarded Mrs. Walters $2,000,000 in damages and Dr. Hitchcock appeals therefrom.
The first issue on appeal concerns alleged misconduct of plaintiff's counsel during closing argument. In his closing argument plaintiff's counsel stated:
Defendant contends this constitutes a prohibited "golden rule" argument. This term relates to arguments of counsel that jurors should place themselves in the position of the plaintiff. Such arguments are usually improper and may constitute reversible error. See 75 Am.Jur.2d., Trial § 282, pp. 357-58.
Plaintiff argues the remarks were not asking the jurors to place themselves in plaintiff's shoes, and were merely hypothetical in nature.
The remarks actually span two categories. The comment commencing "Who would sell...." is, we believe, a fair argument relative to claimed damages and is not a "golden rule" argument. The comment that counsel would not sell his esophagus for that sum is testimonial in nature as it is a statement of counsel's personal opinion. This is an improper argument. Does this improper comment constitute reversible error? We believe not. To constitute reversible error there must be a likelihood that the improper remarks changed the result of the trial. See State v. Dill, 3 Kan.App.2d 67, 589 P.2d 634 (1979). We have examined the record and conclude that, in the totality of the circumstances, the improper comment constituted only harmless error.
Additionally, we note that counsel made a timely objection to the remarks and the objection was sustained. Counsel did not request a jury admonition and none was given. Further, the jury had been instructed:
We conclude this issue is without merit.
The second issue is whether the trial court erred in excluding the opinion testimony of Dr. Arlo S. Hermreck relative to causation of Mrs. Walters' surgical complications. Dr. Hermreck was called into the treatment of Mrs. Walters by defendant. Dr. Hermreck had been one of defendant's instructors in medical school and the two physicians had remained close. Dr. Hitchcock referred Mrs. Walters to Dr. Hermreck for evaluation and it was Dr. Hermreck who performed the colon interposition surgery and who was, at time of trial, the physician in charge of her care. Dr. Hermreck testified fully as to the treatment he had provided the patient, her present condition, and future prognosis. Dr. Hitchcock desired to call Dr. Hermreck as an expert witness to support his defense that physiological abnormality in Mrs. Walters was the cause of the problem and that Dr. Hitchcock had not been negligent in his treatment of her. The trial court held such opinion testimony would be improper. The ruling was based on a number of considerations which included the close relationship between the two physicians which, the trial court believed, would place Dr. Hermreck in a difficult ethical position. The trial court also stated it believed such testimony would violate the physician-patient privilege (K.S.A. 60-427).
The trial court's reliance on the physician-patient privilege is misplaced. K.S.A. 60-427(d) clearly provides the privilege does not apply in an action in which the condition of the patient is an element or factor in the claim of the patient. Further, the trial court's concern for the rather difficult situation Dr. Hermreck would be placed in testifying relative to his opinion on causation and Dr. Hitchcock's adherence to the standard of care is not a valid reason for excluding the testimony.
As previously stated, it was the position of Dr. Hitchcock that Mrs. Walters' esophagus was abnormal and that its defective condition was the cause of it being cut during the thyroid gland surgery. Dr. Hitchcock called Dr. Loren J. Humphrey, who testified Mrs. Walters' esophagus had an outpouching (a diverticulum) and that it was this abnormality that was cut in the surgery. In essence, Dr. Humphrey testified that Mrs. Walters had an extremely rare abnormality which caused the injury and that Dr. Hitchcock was not at fault in his care of the patient. It should also be noted that, despite the restriction on his testimony, Dr. Hermreck did testify Mrs. Walters' esophagus was, in his opinion, defective prior to the initial surgery. Dr. Hitchcock testified he believed Mrs. Walters must have had a diverticulum on her esophagus which had been amputated during the surgery. He did not see such a structure but believed, in reconstructing the events, that one must have been present.
Admission of expert testimony lies within the sound discretion of the trial court and its rulings thereon will not be disturbed on appeal in the absence of abuse of discretion. Limiting the number of expert witnesses is also a matter within the discretion of the trial court. Powers v. Kansas Power & Light Co., 234 Kan. 89, 671 P.2d 491 (1983). When evidence is excluded by the trial court, the party seeking reversal of the judgment has the burden of...
To continue reading
Request your trial
-
State v. Smith-Parker
...under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order. Walters v. Hitchcock, 237 Kan. 31, 36, 697 P.2d 847 (1985).” State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842 (1987).This court has also stated:“Where a party alleges jury mis......
-
State v. Cook
...oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order.' Walters v. Hitchcock, 237 Kan. 31, 36, 697 P.2d 847 (1985)." The circumstances of the present case were described by the trial court "While this court would not describe defendant'......
-
Bullock v. BNSF Ry. Co.
...stated that concisely. But our civil caselaw demonstrates several similarities to the criminal arena. See, e.g. , Walters v. Hitchcock , 237 Kan. 31, 32–33, 697 P.2d 847 (1985) (conducting error and prejudice analysis of counsel's comments in closing argument). More specifically, as in the ......
-
State v. Carr
...generally improper); State v. Donesay, 265 Kan. 60, 82, 959 P.2d 862 (1998) (victim impact evidence improper); Walters v. Hitchcock, 237 Kan. 31, 33, 697 P.2d 847 (1985) (“golden rule” argument may improperly encourage jurors to place themselves in position of plaintiff). The State contends......
-
Dangerous Crossing: the Line Between Proper and Improper Argument
...446 (1997). 30. 19 Kan. App. 2d 37, 861 P.2d 1382 (1993). 31. Id. at 41. 32. State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). 33. 237 Kan. 31, 33, 697 P.2d 847 (1985). 34. Id. at 33. 35. Id. 36. 26 Kan. App. 2d 441, 988 P.2d 745 (1999). 37. 25 Kan. App. 2d 519, 524, 965 P.2d 848 (199......
-
The Fordham Urban Law Journal: twenty years of progress.
...1986); 2 FORDHAM URB. L.J. 179 (1974) noted in 344 N.E.2d 279, 287 n.2 (Ill. App. Ct. 1976); 11 FORDHAM URB. L.J. 973 (1983) noted in 697 P.2d 847, 858 (Kan. 1985); 8 FORDHAM URB. L.J. 507 (1980) noted in 459 N.E.2d 772, 777 (Mass. 1984); 7 FORDHAM URB. L.J. 617 (1979) noted in 436 N.E.2d 1......