Wray v. Gregory

• Decision Date: 03 August 1995
• Docket Number: No. 92-16985,92-16985
• Citation: 61 F.3d 1414
• Parties: 95 Cal. Daily Op. Serv. 6117, 95 Daily Journal D.A.R. 10,464 Connie Jo WRAY, individually and as guardian ad litem of Jacob Wray, Plaintiff-Appellant, v. Paul J. GREGORY, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1414

61 F.3d 1414

95 Cal. Daily Op. Serv. 6117, 95 Daily Journal

D.A.R. 10,464

Connie Jo WRAY, individually and as guardian ad litem of

Jacob Wray, Plaintiff-Appellant, v. Paul J. GREGORY, M.D., Defendant-Appellee.

No. 92-16985.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 17, 1994.

Decided Aug. 3, 1995.

Terry W. Mackey, Cheyenne, WY, for plaintiff-appellant.

Thomas Joseph Doyle, Schuering, Zimmerman, Scully & Nolen, Sacramento, CA, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: REINHARDT and LEAVY, Circuit Judges, and LINDA HODGE McLAUGHLIN, ^* District Judge.

Per Curiam; Concurrence by District Judge McLAUGHLIN.

PER CURIAM:

The appellant Connie Wray arrived at the emergency room of St. Mary's Hospital in Reno, Nevada, on March 31, 1985, suffering from severe abdominal pain and low blood pressure. Wray was twenty-eight to twenty-nine weeks pregnant. As she was waiting in the emergency room, she went into shock.

Attending physicians diagnosed abruptio placenta, with severe fetal distress. Wray was immediately prepared for a caesarean section. The appellee, Dr. Paul Gregory, an anesthesiologist, was called from another delivery to administer anesthesia. Dr. Gregory was unable to locate his first choice anesthetic, Ketamine, within the few seconds available to him in this emergency situation, and instead used the anesthetic thiopental. The record indicates that approximately ninety percent of caesarean sections in this country are done under thiopental, but that Ketamine is preferred where the patient is in the initial stages of shock.

Approximately five to eight minutes after the administration of anesthesia, and after baby Jacob was delivered, Wray suffered a cardiac arrest. Although she was revived, she remained in a coma for five weeks. Both Wray and Jacob suffered brain damage.

Wray submitted her malpractice case to a medical-legal screening panel, as Nevada law requires. The panel found that there was no reasonable probability of medical malpractice by Dr. Gregory as to either Jacob or Connie Wray. Wray filed a diversity action in district court on behalf of herself and Jacob. In the jury trial, over Wray's objection, the court admitted the panel's findings as evidence. Also over Wray's objection, the district court gave a jury instruction required by Nevada statute. This instruction advised the jury that the screening panel's findings were based solely on a review of the medical records; that the jury should give the findings the same weight as other evidence; but that the findings were not conclusive.

The jury returned a verdict in favor of Dr. Gregory. Wray appeals the admissibility of the screening panel's findings and the propriety of the jury instruction relating to them.

ANALYSIS

The Screening Panel's Findings

A plaintiff alleging medical malpractice is required by the Nevada medical malpractice statute, Nevada Revised Statute (NRS) Secs. 41A.003-41A.120 (1986), to submit her case to a screening panel prior to filing the action in court:

No cause of action involving medical malpractice may be filed until the medical malpractice case has been submitted to an appropriate screening panel and a determination made by such panel as provided in NRS 41A.003 to 41A.069, inclusive, and any action filed without satisfying the requirements of those sections is subject to dismissal without prejudice for failure to comply with this section.

NRS Sec. 41A.016(1).

NRS Sec. 41A.049(1) sets out what the panel may consider and determine:

The screening panel shall consider all the documentary material, including the complaint and answer, any medical records and records of a hospital or office and the testimony of any expert witnesses the panel considers necessary, and shall determine only, from that evidence, whether there is a reasonable probability that the acts complained of constitute medical malpractice and that the claimant was injured thereby.

(Emphasis added.)

After considering "all the documentary material," the panel issues a finding as to whether or not there is a "reasonable probability of medical malpractice." Once the panel issues its finding, the complainant may then initiate a court action for malpractice. NRS Sec. 41A.056(2). Although the screening panel's findings can be admitted as evidence in that court proceeding, other evidence concerning the panel's findings is not admissible. NRS Sec. 41A.016(2).

A separate statutory provision dictates the form that the panel's findings must take. Under NRS Sec. 41A.049(4)(b), a finding by the screening panel that there is no reasonable probability of medical malpractice must take "substantially the following form":

Based upon a review of the written medical records of this claim and the testimony of medical experts (if any were called) we find that there is no reasonable probability of medical malpractice[.]

Here, the panel's findings stated that "[b]ased upon a review of the written medical records we find there is no reasonable probability of medical malpractice."

Before determining the constitutionality of admitting the findings, we address the question whether they are admissible under the applicable evidentiary rules. That inquiry in turn requires us to resolve whether Nevada's rules regarding the admissibility of the findings or the Federal Rules of Evidence control. Although the Federal Rules of Evidence ordinarily govern in diversity cases, they do not always. "[W]here a state evidence rule is 'intimately bound up' with the rights and obligations being asserted, Erie [R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938) ] mandates the application of a state rule in a diversity suit." See D'Orio v. West Jersey Health Systems, 797 F.Supp. 371, 376 (D.N.J.1992); Conway v. Chemical Leaman Tank Lines, Inc., 540 F.2d 837, 839 (5th Cir.1976). Thus, even though the passage of the Federal Rules of Evidence in 1975 rendered the Erie analysis inapplicable to most evidentiary questions in diversity cases, it did not have the effect of supplanting all state law evidentiary provisions with federal ones. As Wright and Miller observe, some state law rules of evidence "in fact serve substantive state policies and are more properly rules of substantive law within the meaning of Erie." 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure Sec. 4512, at 194-95 (1984). Other circuits have concluded that those provisions governing the admissibility of screening panel findings fall into that category.

For example, in Daigle v. Maine Medical Ctr. Inc., 14 F.3d 684 (1st Cir.1994), the First Circuit concluded in an almost identical case that Maine's rules regarding the admissibility of findings by its medical malpractice screening panel were so "bound up with the state's substantive decision making" that, under Erie, the federal rules of evidence did not govern. Id. at 698. Daigle explained that "a refusal to give effect to the Health Act's evidentiary provisions would disserve Erie principles by undercutting Erie's twin goals of discouraging forum shopping and eliminating inequitable administration of the law as between federal and state courts." Id. at 690.

Moreover, Daigle explained that a state's provisions governing the admissibility of medical malpractice screening panel findings do not unavoidably conflict with the Federal Rules of Evidence. "Since the [relevant] federal Evidence Rules ... do not seek to displace [the state's] policy of limiting frivolous malpractice suits, the federal rules and the state statute can peacefully coexist, each operating within its own sphere of influence." Daigle, 14 F.3d at 689. Accordingly, it concluded that the traditional Erie analysis applies to such state provisions, notwithstanding the Court's holding in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Id.; see also Walker v. Armco Steel Corp., 446 U.S. 740, 749, 100 S.Ct. 1978, 1984-85, 64 L.Ed.2d 659 (1980) (explaining that in the absence of a conflict between a state and federal procedural rule, Erie applies).

The Fourth Circuit adopted a similar view in DiAntonio v. Northampton-Accomack Memorial Hosp., 628 F.2d 287, 290 (4th Cir.1980); see also Peck v. Tegtmeyer, 834 F.Supp. 903, 908-09 (W.D.Va.1992), aff'd, 4 F.3d 985, 1993 WL 341065 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 884, 127 L.Ed.2d 79 (1994) (same). DiAntonio explained that:

though the provision for admission into evidence of the panel opinion be regarded as the resolution of an evidentiary problem, it does not follow that it is the kind of procedural rule which need not be followed in federal court.... The provision for admission of the panel opinion is intimately related to Virginia's alteration of the substantive cause of action. It is intimately related to Virginia's strong policy of encouraging and promoting pretrial mediation. Because it enforces and implements those interests, the admission provision is applicable in this diversity case.

DiAntonio, 628 F.2d at 291.

We agree with the reasoning set forth in Daigle and DiAntonio. See also Heredia v. Johnson, 835 F.Supp. 553, 553-54 (D.Nev.1993) (applying Nevada's rules governing admissibility of screening panel's findings); cf. Truck Ins. Exchange v. Tetzlaff, 683 F.Supp. 223 (D.Nev.1998) (holding that Nevada's rule The fact that the findings considered in Daigle and DiAntonio were admissible under state law while, as we conclude below, the findings at issue here are inadmissible under Nevada law is of no moment. In requiring that parties bring their medical malpractice disputes before a screening panel as a condition precedent to instituting a court action, Nevada took pains to limit the evidentiary uses that could be made of those findings and to describe the form that they must take in order for them to be admissible. Nevada has an interest in ensuring that plaintiffs...