Webb v. Bouton

• Court: Arkansas Supreme Court
• Writing for the Court: Jim Hannah
• Citation: Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (Ark. 2002)
• Decision Date: 03 October 2002
• Docket Number: No. 01-920.,01-920.
• Parties: Ada WEBB v. Michael S. BOUTON, M.D., Holt-Krock Clinic, PLC.

85 S.W.3d 885

350 Ark. 254

Ada WEBB v. Michael S. BOUTON, M.D., Holt-Krock Clinic, PLC.

No. 01-920.

Supreme Court of Arkansas.

October 3, 2002.

Law Offices of Charles Karr, P.A., by: Charles Karr and Shane Roughley, Fort Smith, for appellant.

Warner, Smith & Harris, PLC, by: Wayne Harris and G. Alan Wooten, Fort Smith, for appellee.

JIM HANNAH, Justice.

Appellant Ada Webb filed this medical malpractice suit against appellees Dr. Michael S. Bouton, a board certified general surgeon, and the Holt-Krock Clinic, the clinic where Dr. Bouton was employed at the time of the alleged malpractice. Webb raises three points on appeal. She argues: (1) that the trial court erred in allowing Dr. Bouton to testify as to the standard of care; (2) that the trial court erred when it allowed Dr. Fengler to testify; and (3) that the jury's verdict was against the preponderance of the evidence. We find no reversible error, and accordingly, affirm. We have jurisdiction of this matter under Ark. S.Ct. R. 1-2(a)(1), (b)(1), and (b)(3) (2002).

Facts

On December 29, 1998, Appellant Ada Webb brought suit against Dr. Michael S. Bouton and Holt-Krock Clinic, PLC, for medical malpractice relating to hemorrhoid surgery Dr. Bouton performed on Webb on December 30, 1996.

Webb first saw Dr. Bouton on September 26, 1996, for pain from hemorrhoids. At a follow-up visit on October 10, 1996, Dr. Bouton performed a suction hemorrhoid banding procedure. On October 31, 1996, Webb again saw Dr. Bouton for a follow-up visit. At this visit, she complained of leg pain and back pain, and she spoke to Dr. Bouton about some external skin tags with the hemorrhoids. Webb was still experiencing pain on November 21, 1996, and Dr. Bouton referred her to Dr. Waijh Istanbouli, an internist, for further evaluation.

On December 5, 1996, Dr. Bouton recommended hemorrhoid surgery, which he performed on December 30, 1996. Webb saw Dr. Bouton for follow-ups on January 9, 1997, January 21, 1997, January 27, 1997, and February 24, 1997. Webb complained of persistent pain at all of these visits. Noting that the examination was very painful for Webb on the February 24 visit, Dr. Bouton recommended to Webb that he examine her under anesthesia. Dr. Bouton scheduled the examination for the next day, and Webb failed to appear for the visit.

Webb next went to see Dr. David Hunton. On February 28, 1997, he performed a proctoscopy, sphincterotomy, and cauterization of skin tags. On April 28, 1997, Dr. Hunton excised an anal fistula and external skin tags.

Webb was also evaluated by Dr. John Tedford, a colorectal specialist in Little Rock, and by physicians at the Mayo Clinic in Rochester, Minnesota. Webb alleges that she has continued to suffer from pain, incontinence, and other problems since the December 30, 1996, surgery.

Webb alleged that Dr. Bouton committed malpractice because he performed unnecessary surgery, which exacerbated her pain and problems, and because Dr. Bouton did not consult with a colorectal surgeon before he performed the surgery. The case proceeded to a jury trial, and the jury returned a verdict in favor of Dr. Bouton and the Holt-Krock Clinic.

Dr. Banton's Testimony Concerning the Standard of Care

Webb contends that the trial court erred when it allowed Dr. Bouton to testify as an expert witness as to the standard of care because she was prevented from exploring Dr. Bouton's opinions in discovery. Whether a witness is qualified to testify as an expert upon a particular question is a matter to be decided within the discretion of the trial court. Cattley v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986). On appeal, the appellant has the burdensome task of demonstrating that the trial court has abused its discretion. Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989).

Webb alleges that Ark.Code Ann. § 16-114-207(3), under the Medical Malpractice Act, is in conflict with Rule 26 of the Arkansas Rules of Civil Procedure. Webb argues that since a physician cannot be compelled to give expert testimony at trial against himself, a defendant physician should not be allowed to give expert testimony in his favor because a plaintiff cannot discover these opinions. Webb contends that even though Ark.Code Ann. § 16-114-207(3) does not apply to discovery, Ark. R. Civ. P. 26(b)(1) "prohibit[s] the exploration of any expert opinions that a defendant physician might have during discovery." We note that the record indicates that this argument was not raised at the trial level. We have often stated that an argument not raised below will not be considered for the first time on appeal. Arkansas Blue Cross and Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). Accordingly, we do not address the merits of Webb's argument regarding the alleged conflict between Ark.Code Ann. § 16-114-207(3) and Rule 26(b)(1) of the Arkansas Rules of Civil Procedure. Likewise, Webb's argument that Ark. R. Civ. P. 26(b)(4)(A) would require her to compensate Dr. Bouton for his time spent responding to the discovery was not raised below. Accordingly, we will not address the merits of Webb's argument regarding Ark. R. Civ. P. 26(b)(4)(A).

Webb further contends that Ark. Code Ann. § 16-114-207(3) is unconstitutional because it is "fundamentally unfair and violates equal protection because it extends to physicians a privilege which is not extended to any other professional." She states that "there is no rational basis for allowing defendant physicians the privilege of `hiding' their opinions only to surprise a plaintiff at trial with an additional expert opinion," and that there is "no opportunity for plaintiffs to prepare for what opinions the defendant may render." It is impossible for us to address these arguments because Webb failed to include responses to interrogatories in the record, and she failed to include a transcript of Dr. Bouton's deposition testimony. We can hardly determine whether Dr. Bouton and the Holt-Krock Clinic were able to "hide" their opinions and "surprise" Webb at trial when the record contains no information to support the argument.

In Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), the court addressed the appellant's argument that the Medical Malpractice Act was unconstitutional. The court wrote:

Appellant next contends that the entire Arkansas medical malpractice act, Ark. Code Ann. § 16-114-207 to-209 (1987), is unconstitutional. She does not explain how the entire act has adversely impacted upon her, a necessary prerequisite to standing, nor does she cite any authority or make a convincing argument to support her position. She merely takes her position that the act is unconstitutional because it violates various listed provisions of the federal and state constitutions. As we have said many times, assignments of error which are unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).

Goodwin, 300 Ark. at 483, 780 S.W.2d 518. Like the appellant in Goodwin, Webb does not show how Ark.Code Ann. § 16-114-207(3) has adversely impacted upon her. She contends that the statute is unconstitutional, but she neither cites authority nor makes a convincing argument to support her contention. As this court has stated many times, arguments that are unsupported by convincing argument or authority will not be considered on appeal, unless it is apparent without further research that the arguments are well-taken. Cadillac Cowboy, Inc. v. Jackson, 347 Ark 963, 69 S.W.3d 383 (2002); Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000).

Testimony of Dr. Fengler

Webb argues that Dr. Fengler's testimony should have been excluded as cumulative evidence because he, like Dr. Bouton, testified that Dr. Bouton had met the required standard of care. Under Rule 403 of the Arkansas Rules of Evidence, relevant evidence may be excluded if it is deemed to be a needless presentation of cumulative evidence. Ark. R. Evid. 403. The trial court has broad discretion in decisions of admissibility, and we will not reverse its ruling absent an abuse of discretion. National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 132 (1990).

In determining whether expert testimony is cumulative, the court will compare the testimony of the two experts who are presented. See Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998). If the expert witnesses are not so similar in their credentials and approach to the issues, testimony of both experts will not be considered cumulative. Id. Dr. Bouton is a general surgeon, and Dr. Fengler is a colon and rectal surgeon. The two doctors have varied educational and professional backgrounds. Dr. Bouton and Dr. Fengler agree on the issue of whether or not Dr. Bouton met the standard of care. We do not find that Dr. Bouton and Dr. Fengler are so similar in their credentials and approach to the issues that their testimony should be considered cumulative. Even if the evidence were cumulative, we have stated that merely cumulative evidence is not prejudicial. Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002). An appellant is required to show that cumulative evidence is prejudicial. Id. Webb has failed to show any prejudice that resulted from Dr. Fengler's testimony. The was no abuse of discretion by the trial court in allowing Dr. Fengler to testify as an expert.

Substantial Evidence

Webb argues that the verdict was against the preponderance of the evidence. Under Ark. R. Civ. P. 59, an appellant may be granted a new trial if "the verdict ... is clearly contrary to the preponderance of the evidence or is contrary to the law." Ark. R. Civ. P. 59(a)(6). A motion for a new trial is not necessary to preserve for appeal an error which could be the basis for granting a new trial. Ark. R. Civ. P. 59(f). Where a motion...