Willing v. Quebedeaux

• Citation: 204 P.3d 1248,2009 MT 102
• Decision Date: 31 March 2009
• Docket Number: No. DA 07-0191.,DA 07-0191.
• Parties: William C. WILLING and Nonnie Willing, Plaintiffs and Appellants, v. Anthony J. QUEBEDEAUX, D.P.M., d/b/a Helena Foot Specialists, Defendant and Appellee.
• Court: United States State Supreme Court of Montana

204 P.3d 1248

2009 MT 102

William C. WILLING and Nonnie Willing, Plaintiffs and Appellants, v. Anthony J. QUEBEDEAUX, D.P.M., d/b/a Helena Foot Specialists, Defendant and Appellee.

No. DA 07-0191.

Supreme Court of Montana.

Submitted on Briefs April 30, 2008.

Decided March 31, 2009.

For Appellants: Terry N. Trieweiler; Trieweiler Law Firm; Whitefish, Montana.

For Appellee: Kelly Gallinger, Lisa A. Speare; Brown Law Firm, P.C.; Billings, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellants William and Nonnie Willing (Willings) alleged medical malpractice by Appellee Anthony Quebedeaux, D.P.M., (Quebedeaux) with regard to the care given by Quebedeaux on three of William Willing's toes. A jury found in favor of Quebedeaux after a trial in the First Judicial District Court, Lewis and Clark County. The Willings appeal the jury verdict and order of the District Court denying their motion for a new trial. We reverse.

¶ 2 We restate the issues raised on appeal as follows:

¶ 3 1. Did the District Court abuse its discretion by denying the Willings' request for a trial continuance and by limiting the amount of time within which to present evidence?

¶ 4 2. Did the District Court abuse its discretion by denying the Willings' blanket challenge for cause of Quebedeaux's former patients and by denying the Willings' individual challenge to juror Stonehouse?

¶ 5 3. Did the District Court manifestly abuse its discretion by denying Willings' motion for a new trial, which was based on asserted misrepresentations of an undisclosed textbook by defense counsel during closing arguments in violation of the court's order?

¶ 6 Because we reverse on the third issue, determining that the Willings' motion for a new trial should have been granted, we decline to address the remaining issues.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 William Willing was referred to Dr. Quebedeaux, a podiatrist, in September 2001 because of right foot pain. When he first visited Quebedeaux, Willing had a large callus under the ball joint behind his big toe and had clawing of his middle three toes, to the extent that his toes were curling under themselves and his toenails were hitting the ground. Willing's toenails were thick and scarred as a result, causing him a great deal of pain. Quebedeaux provided conservative treatment to Willing for several years thereafter, which included trimming the nails, shaving calluses, administering injections, taping the second toe down to remove pressure, and padding the foot to prevent Willing's toes from rubbing on his shoe. Willing had undergone similar conservative treatment with another podiatrist since the late 1980s. Quebedeaux and Willing also discussed correcting the toes with surgery if conservative treatment failed to ameliorate the pain.

¶ 8 There are surgical options for treatment of a clawed toe condition. Quebedeaux recommended arthrodesis for Willing, which fuses the joints of each clawed toe in order to straighten the toe and remove pain. When an arthrodesis is performed on a clawed toe, a Kirshner wire, or "K-wire," is inserted through the middle of the phalanxes of the toe to keep it in position and allow the bones to fuse. Sizes of K-wire range from .028 inch diameter to .062 diameter. Willing consented to Quebedeaux's recommendation of arthrodesis and signed a form acknowledging possible complications from that surgery, such as loss of a toe and Reflex Sympathetic Dystrophy ("RSD"), also referred to as complex regional pain syndrome. An alternative treatment for clawed toes is arthroplasty, which involves removing bone at the head of the proximal phalanx of each clawed toe. Arthroplasties do not require use of K-wire.

¶ 9 On January 22, 2004, Quebedeaux performed an arthrodesis on the three middle toes of Willing's right foot. Quebedeaux straightened the three toes using .062 inch diameter K-wire, the largest size available. Over the next week and a half, Quebedeaux saw Willing nearly every day. Each time, Willing noted that his pain was significant but was improving. Quebedeaux tested the toes for circulation and noted good blood supply to the tips of Willing's toes. On several occasions, Quebedeaux gave Willing the option of removing the K-wires due to the pain Willing was experiencing, but warned him that doing so may compromise the alignment of the toes. Willing apparently declined. Quebedeaux never observed any discoloration of Willing's toes during those initial post-procedure visits.

¶ 10 On February 6, 2004, two weeks following the surgery, Willing reported for the first time that the pain in his right foot had increased. This concerned Quebedeaux, so he removed the K-wires. Quebedeaux testified that the toes "looked great" at that time, but when Willing returned three days later, on February 9, Willing's second toe had a darker discoloration, possibly caused by ischemia, or reduced blood flow to the second toe. On February 12, it was clear to Quebedeaux that Willing had some ischemia, as evidenced by a black tip covering the end of the toe. Quebedeaux treated the skin in an attempt to get it to heal as much as possible, and ultimately the ischemia ended and a boundary formed between the healthy and unhealthy tissue. On April 16, 2004, Dr. Peter Hanson, an orthopedist, performed a partial amputation on Willing's second toe to remove the dead tissue.

¶ 11 Willing experienced RSD, or chronic pain, in his right foot after the K-wires were removed and continuing after the partial amputation. Due to the partial amputation and resulting complications, Willing was discharged from his position as Colonel in the Montana Army National Guard as physically unfit to serve on May 1, 2005. The Willings filed this action on March 21, 2005, alleging that the surgery performed by Quebedeaux was not the proper surgery for Willing's condition and that his treatment and follow-up care fell below the standard of care applicable to podiatrists. The Willings alleged that as a result of Quebedeaux's negligence, Willing suffered permanent circulatory damage, permanent neurological damage, permanent deformities in his toes, and had suffered the loss of the remainder of his military career.

¶ 12 At trial, the parties' expert witnesses presented conflicting testimony as to the proper course of treatment for Willing's condition. Willings' podiatry expert, Dr. David Widom, testified that arthrodesis was not appropriate for Willing and the K-wires used by Quebedeaux were too large. Likewise, Dr. Sigvard Hansen, Willings' orthopedic expert, testified by videotaped deposition that the actual cause of Willing's clawed toes was tightness in Willing's calf. According to Hansen, although the arthrodesis was "ill-advised," the use of the K-wire was more the cause of the ischemia in Willing's toe than the actual arthrodesis.¹

¶ 13 In contrast, Quebedeaux's podiatry expert, Dr. William Wilshire, testified that arthrodesis is the standard of care for clawed toes among orthopedic and podiatric surgeons and that Quebedeaux's preoperative treatment and disclosures, surgery, and postoperative care were within the standard of care. Wilshire testified that the .062 inch diameter K-wire used to fuse Willing's toes was within the spectrum of sizes that were appropriate for the type of surgery Quebedeaux had performed. Wilshire based this testimony on his own professional experience and training as a surgeon, as well as on his review of literature and textbooks over the course of his practice. In fact, one such textbook relied upon by Wilshire and referred to at trial was written by Willing's expert, Dr. Sigvard Hansen. Wilshire testified that Hansen's own textbook, which he had brought with him to trial, showed "hammertoe [or clawtoe] fusion far larger than .062 K-wire specifically graphically noted in his book, two and even three times the size of a .062 K-wire, and that's in Dr. Hansen's book...." Wilshire further testified that, contrary to Hansen's testimony that arthrodesis was inadvisable, Hansen's textbook indicated that he had performed arthrodesis to correct clawed toes, and had done so using screws far larger than the .062 inch K-wire used by Quebedeaux to fuse the joints.

¶ 14 However, Hansen's textbook had not been identified by the defense during discovery as a basis for Wilshire's opinions. Willings had requested by interrogatory that the defense "identify all literature, including ... journals, texts or treatises upon which the Defendant intends to rely for any issue in this case." None of Quebedeaux's answers, including supplemental answers, identified Hansen's textbook. Quebedeaux's expert witness disclosure identified Wilshire and cited to two medical textbooks on which he would rely, but did not include Hansen's textbook. At his deposition, Wilshire was questioned extensively about the literature on which he intended to rely, and was served with a subpoena duces tecum requiring him to produce at the deposition each "writing, article, treatise, text or written authority" upon which he relied, but Hansen's textbook was neither mentioned nor produced. Quebedeaux's list of witnesses and exhibits, which ultimately became part of the pretrial order, listed 34 exhibits, but Hansen's textbook was not listed therein.

¶ 15 Unable to recall during Wilshire's testimony whether Hansen's textbook had been previously disclosed, Willings' counsel checked the disclosures after trial had recessed for that day. Discovering that it had never been disclosed, Willings' counsel raised the issue prior to closing argument, notifying the District Court that Hansen's textbook had not been disclosed prior to trial. Willings' counsel noted that the textbook remained on defense counsel's table and requested that Quebedeaux's counsel be prohibited from referencing Hansen's textbook during closing arguments. Quebedeaux's counsel acknowledged that the textbook had not been disclosed and agreed not to refer to the...