Opinion
No. 106,215.
2012-07-6
Janet R. HAMRICK, Appellant, v. Robert S. HUEBNER, M.D., Appellee.
Appeal from Crawford District Court, A.J. Wachter, Jr., Judge. Patrick C. Smith, of Loy Law Firm, L.L.C., of Pittsburg, for appellant. Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, for appellee.
Appeal from Crawford District Court, A.J. Wachter, Jr., Judge.
Patrick C. Smith, of Loy Law Firm, L.L.C., of Pittsburg, for appellant. Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
This appeal follows plaintiff's unsuccessful trial of a medical malpractice case. The claim arose when Janet R. Hamrick underwent a heart catheterization procedure, which was performed by Dr. Bashar Marji. During the procedure Marji had problems passing a wire through Hamrick's artery. Marji was concerned there was damage to Hamrick's artery, so he called Dr. Robert S. Huebner to assist with the procedure.
Huebner examined Hamrick and found that there was no pulse in her groin, which was where Marji had attempted to insert a needle to perform the catheterization. Huebner later said that he was concerned Hamrick would lose her leg if he did not immediately operate to open the artery. Huebner spoke with Hamrick, who had been consciously sedated for the procedure, and explained the situation. Huebner later testified that Hamrick consented to him going forward with the procedure.
Huebner performed an arteriogram followed by the angioplasty procedure in which, using a wire, he inserted a balloon device into Hamrick's artery to open her damaged artery. After the balloon opened the artery, Huebner inserted a stent to maintain blood flow in the artery. Huebner then removed the wire and the balloon from Hamrick's artery.
About 5 minutes later, Hamrick's blood pressure dropped. Huebner immediately began medicating Hamrick and gave her fluids. He suspected a rupture, so he performed an arteriogram that showed a perforation in Hamrick's artery. Hamrick was immediately moved to surgery where Huebner replaced the damaged section of artery.
Hamrick brought this action against Huebner, claiming that he negligently performed the angioplasty procedure and did so without her consent. She asserted that the procedure was unnecessary and she would not have consented to have the procedure if she had been consulted ahead of time. In the pretrial order, Hamrick expanded her claims to include claims of negligent conduct in treating her after the perforation of her artery was discovered. The case was tried, and the jury returned its verdict in favor of Huebner.
All of Hamrick's claims of trial errors relate to the admission or exclusion of evidence. Our initial task in considering these claims is to determine if the evidence is relevant. Unless statutorily prohibited, all relevant evidence is admissible. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). We review whether the evidence is probative using the abuse of discretion standard. Relevancy also incorporates the element of materiality. State v. Houston, 289 Kan. 252, 261–62, 213 P.3d 728 (2009). We review materiality de novo. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010). Even if proffered evidence meets these tests, the trial court has discretion to exclude it if its probative value is substantially outweighed by its prejudicial effect. K.S.A. 60–445. We review this determination for any abuse of discretion. State v. Reid, 286 Kan. 494, 512, 186 P.3d 713 (2008). When the district court's ruling to admit or exclude was based on other evidentiary rules, we generally examine the ruling for any abuse of discretion. If another standard applies, we will discuss it when we get to the issue.
Evidence of Claimed Bias of Defense Experts
Hamrick claims the district court erred in refusing to admit evidence that Huebner's expert witnesses, Drs. Joseph Galichia and Carlyle Dunshee II, were biased because they had a financial interest in the outcome of the trial. She argues that the district court should have permitted her to present evidence that Huebner and his two experts were all insured by Kansas Medical Mutual Insurance Company (KaMMCO), and a judgment against Huebner could adversely affect Galichia's and Dunshee's medical liability insurance premiums.
Huebner moved in limine before trial for an order excluding any such evidence. He pointed out that Galichia and Dunshee did not learn that they were insured by the same insurance carrier as Huebner until their depositions were taken, well after they had formed and disclosed their expert opinions. Thus, the evidence was not relevant to prove bias. Huebner also argued that the prejudicial effect of the evidence outweighed any probative value. The district court sustained the motion and excluded the evidence, stating the evidence had “nothing of evidentiary value to suggest that the outcome of this litigation will have any significant effect on malpractice premiums or any effect on any ownership interest defendant's experts may have by virtue of being a current policy holder of KaMMCO.” The district court made note of the fact that Huebner's witnesses testified that they were unaware of their common insurance carrier until it was pointed out by Hamrick. The court also noted the limited admissibility of evidence of liability insurance under K.S.A. 60–454 and its prejudicial effect, which outweighed any probative value.
In Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 244 P .3d 642 (2010), KaMMCO sought a writ of mandamus to obtain relief from a discovery order in a pending medical malpractice action. Svaty sought discovery from KaMMCO under the same theory asserted by Hamrick: that the defense's expert witness was insured by the same company as the defendant and, therefore, had an interest in the outcome of the case. Noting “Kansas' longstanding position that insurance should not be interjected in a trial,” the court barred Svaty's discovery on the issue and concluded that such discovery was not calculated to lead to admissible evidence of bias. 291 Kan. at 629–31.
Relying on Svaty, we conclude that given the fact that the experts did not know they shared a common insurer with Huebner until after they had formulated and disclosed their opinions in the case, the proffered evidence did not have any tendency in reason to prove bias on the part of the witnesses. Further, if the evidence did have any probative value, it was so slight that it was clearly outweighed by its prejudicial effect. The district court did not err in excluding this testimony.
Evidence of an Expert's Prior Sworn Testimony
Hamrick claims the district court erred in excluding evidence that Galichia gave false testimony; that is, that he gave inconsistent testimony in his two depositions. She claims that the district court erred when it found that he did not.
With respect to this issue we examine the record to determine whether the district court's finding that Galichia did not give false testimony is supported by substantial competent evidence and whether that finding was sufficient to support the district court's conclusions. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007). In doing so, we do not reweigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. 283 Kan. at 19.
In his motion in limine, Huebner sought to exclude evidence regarding any pending or prior lawsuits involving Galichia or Dunshee. Huebner argued that admitting evidence that Galichia had been sued previously for medical malpractice would violate K.S.A. 60–455. Huebner further argued that such evidence was irrelevant and would interject “significant and unnecessary collateral issues.” The district court sustained Huebner's motion.
In her motion to reconsider, Hamrick claimed that Galichia failed to give complete and truthful answers in his depositions and argued that she should be permitted to introduce evidence of that fact. She claimed that Galichia initially failed to disclose his involvement in a Medicare fraud case that was settled as well as a claim made by a prior employee.
Galichia was initially deposed in December 2009. Hamrick's attorney inquired whether Galichia had ever been named as a defendant in a lawsuit. Galichia testified that he had been named as a defendant in a medical malpractice case four or five times. He said that in one of them his insurance company paid the plaintiff. Galichia also discussed a “whistleblower” suit in which an employee of Galichia's medical group reported improper billing practices. Galichia stated that in that case, the group “settled with the people who filed the lawsuit and the government in the case .”
Galichia's deposition was continued to January 2010. Hamrick's attorney asked Galichia about a Medicare fraud claim that was made against Galichia several years after the “whistleblower” case that was discussed in the first session of his deposition. Hamrick's attorney asked why Galichia did not disclose it at the December session. Galichia acknowledged the fraud claim but said that he had not mentioned it earlier because he did not consider it to be within the scope of the question. He said that the Medicare fraud case never resulted in a lawsuit, and the claim was against Galichia's medical group, not against him personally.
The district court denied Hamrick's motion to reconsider, finding there was “no evidence that Dr. Galichia misrepresented anything to plaintiff's counsel during his depositions, including the corrections he made to the depositions, and there is no evidence that Dr. Galichia admitted to any crime or other activity that would affect his credibility.” The district court concluded that “claims made against Dr. Galichia or his group by the government and claims made against Dr. Galichia by any person or entity, including but not limited to malpractice claims made against Dr. Galichia or his group are not relevant to Dr. Galichia's credibility .”
Subject to certain statutory limitations, K.S.A. 60–420 permits the admission of extrinsic evidence that is relevant to impair a witness' credibility. We have for our consideration a partial transcript of Galichia's deposition. We have examined this testimony in the light more favoring Huebner, the prevailing party on this issue. We also recognize that every misstatement is not evidence of the intent to deceive. Viewed in that light, and based on the partial transcript we have been provided, we find substantial competent evidence to support the district court's finding that Galichia did not lie about prior suits and claims. Because of the apparent miscommunication between lawyer and deponent on the subject of prior claims and lawsuits, Galichia's answers, which were corrected on his errata sheet following the deposition, were not evidence of dishonesty. Thus, Hamrick's proffered evidence was not admissible under K.S.A. 60–420.
The court abuses its discretion when it takes a position that no reasonable person would have taken. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011). Applying this standard we conclude that the district court did not abuse its discretion when it excluded evidence of Galichia's prior legal matters.
Evidence not Disclosed in Expert's Designation
Hamrick claims the district court erred in denying her motion in limine to exclude testimony from Dunshee about Huebner's decision not to perform a balloon tamponade procedure on Hamrick's artery after it was perforated. Hamrick argues that Dunshee's opinion on this subject, which counters the testimony of Dr. Verta, one of Hamrick's expert witnesses, was not disclosed in Dunshee's expert witness disclosure as required by K.S.A. 60–226(b)(6).
Huebner made a pretrial disclosure of Dunshee's anticipated expert witness testimony. Included in the disclosure was the following:
“F. Once the peroration to the external iliac artery was [known] to have occurred, Dr. Huebner had at least three options which were as follows:
“(1) Use a covered stent if he could bridge the area where the perforation occurred; or
“(2) If the patient was stable, he could ligate the area of perforation and by-pass or control hemorrhage and by-pass, or
“(3) If he had a reasonable basis to conclude sufficient collaterals were present, or if he felt there was a life over limb issue present, and if he felt the patient was not stable, he could ligate above and below the perforation and opt to perform the by-pass procedure at a later date.
All of these options are judgment calls and the surgeon who is seeing the patient and observing the patient is in the best position to make the call.
“G. Ballooning alone without stenting the external iliac artery is generally not sufficient in the face of a suspected dissection of plaque.”
Hamrick moved to exclude Dunshee's testimony supporting Huebner's decision not to reballoon Hamrick's artery to stop the bleeding. The motion was asserted during the trial but before Dunshee testified. Hamrick's counsel argued:
“I've requested that Dr. Dunshee not testify ... on the issue of whether or not it was appropriate within the standard of care, once the rupture occurs, for Dr. Huebner to have [run] a balloon back in there and blocked the hole and stopped the bleeding.
“... Dr. Verda says ... the first thing you do is run that balloon back in there, gently blow it up and stop the bleeding, and now [there are] three options ... the first thing is you let the balloon down and do another angiogram and perhaps sometimes these holes are such that when you put some pressure on them they will seal on their own.... [I]f that doesn't work then you put the balloon back up there, stop the bleeding.
“Now you have two options. You put in a covered stent, that would keep the blood flow from coming out, and or you go to [the] emergency room like Dr. Huebner did and fix it in an open procedure....
“... I anticipate now that [Huebner's counsel] wants to bring in Dr. Dunshee to say ... that it wouldn't have been appropriate to try to plug the hole and stop the blood flow for all these reasons which Dr. Dunshee had never testified about, he's never been designated to give that opinion.”
The court overruled the motion, finding that sections F(l) and (2) and section G of Dunshee's expert witness disclosure covered the matter.
The court and jury then heard Dunshee's testimony. After Dunshee testified about his medical training and experience and about the various documents he reviewed in formulating his opinions in the case, Huebner's counsel asked a hypothetical question, which referred to Huebner's trial testimony (1) about not expanding the balloon beyond the size of the stent prior to the “touch up” ballooning process; (2) about using low pressure in the balloon in the reballooning process; (3) about his observations of Hamrick's condition after completing the reballooning; (4) about withdrawing the guide wire and balloon from Hamrick's artery; (5) about observing Hamrick's blood pressure drop once the balloon was withdrawn; (6) and about Huebner's use of low blood pressure medication and a follow-up arteriogram which identified the perforation.
Huebner's counsel then included in the hypothetical question Huebner's testimony regarding why he did not reinsert the balloon into Hamrick's artery after it had been withdrawn and Hamrick's blood pressure suddenly dropped, and why Huebner chose the alternative of taking Hamrick to surgery to repair the perforated artery.
At that point Hamrick objected, stating, “[A]s we just discussed, this expert was only supposed to discuss things that occurred after the perforation and about a third or a half of that question deals with things that occurred before the perforation, specifically the ballooning and angioplasty providers.” The court overruled Hamrick's objection, reasoning that the hypothetical question was designed to provide a factual basis for later questioning on the witness' expert opinion testimony. Hamrick failed to object to including in the hypothetical question Huebner's testimony regarding why he did not reinsert the balloon after the perforation was detected.
Huebner's counsel continued with the hypothetical question, asking the witness to assume that Verda opined that once the perforation occurred, Huebner was negligent in not reinserting the balloon into the artery to stop the bleeding before proceeding with the repair. Huebner's counsel concluded by asking Dunshee whether, assuming the recited facts were true, he had an opinion on whether Huebner taking Hamrick to surgery to repair the artery rather than reinserting the guide wire and balloon into the artery was beneath the standard of care. Dunshee opined, without objection, that Huebner was not negligent in proceeding to surgery without first attempting to reinsert the guide wire and balloon.
Huebner contends that Hamrick failed to preserve for appeal the issue regarding the extent of Dunshee's expert witness disclosure because she failed to make a contemporaneous objection at trial as required by K.S.A. 60–404.
Huebner relies on Morgan v. Abay, 252 Kan. 853, 850 P.3d 840 (1993). In Morgan the court considered plaintiff's motion in limine well into the course of the trial and the day before the challenged witness testified. The court denied plaintiff's motion. When the witness testified, plaintiff failed to renew the objection. The Kansas Supreme Court held that the issue was not properly preserved for appellate review. “When a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 2, 693 P.2d 1238 (1985).” Morgan, 252 Kan. at 856.
The Supreme Court's position in Morgan was buttressed by its later pronouncement in State v. King, 288 Kan. 333, 341–49, 204 P.3d 585 (2009). K.S.A. 60–404 provides that a judgment shall not be reversed on account of the “erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” The court in King acknowledged that “our past decisions may have relaxed the objection requirement in the evidentiary context, ... [but from] today forward, in accordance with the plain language of K.S.A. 60–404, evidentiary claims ... must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.” 288 Kan. at 349.
We are duty bound to follow the rule in King absent some indication the court is departing from this ruling. See Buchanan v. Overley, 39 Kan.App.2d 171, 175–76, 178 P.3d 53,rev. denied 286 Kan. 1176 (2008). Our Supreme Court has applied King in a variety of contexts since then, and we see no indication that the court is departing from King. We are bound to follow it.
Here, Hamrick did not object when Dunshee was asked to opine about the propriety of going directly to surgery without first reballooning the perforation to stop the flow of blood. When she did object, it was to the inclusion in the hypothetical question testimony about the events prior to the perforation. She did not object to the inclusion of testimony regarding the reason Huebner did not reinsert the guide wire and balloon after the perforation was detected. She did not object when Dunshee opined that it was not beneath the standard of care for Huebner not to have done so.
Under these circumstances, we conclude that Hamrick has failed to preserve this issue for appeal.
Evidence of Defendant's Motive in Performing Surgery
Hamrick claims the district court erroneously excluded evidence that Huebner benefited financially when he decided to perform the angioplasty procedure rather than simply to consult with Hamrick about her condition. Hamrick claims that the decision not to allow this evidence “gutted” her theory that Huebner's claim that the situation was an emergency was used to disguise his true motive, which was financial gain.
In considering this issue we apply the review standards discussed earlier.
At trial, Hamrick's attorney asked Huebner a line of questions to support Hamrick's theory that Dr. Huebner performed the angioplasty simply because it was financially more beneficial for him to do so.
“Q. Would it be a fair statement that for being called in to consult and evaluate Jan Hamrick that you would have charged $250.00?
“A. That sounds about right.
“Q. On Bates stamp 020287 it shows there up at the top, you are scrubbing in it looks like at 3:37 and then at about 3:41 is that when you began your procedure, and I apologize, that might be a little hard for you to see, Doctor.
“A. Yes.
“Q. And then if we look at Bates stamp 020288, at—it looks like 4:33, the balloon and wire removed?
“A. Yes.
“Q. And that would have been the end of your angioplasty procedure?
“A. Yes.
“Q. So it took something less than an hour for you to do that procedure?
“A. Yes.
“Q. And for that procedure you would have charged about $7,000.00?
“A. That would include the stent.
“Q. 1 don't want to belabor this but actually the stent would have been charged through a separate hospital bill, wouldn't it?
“A. That is right. We never expect to collect on that, that is just the way the codes are arranged.
“Q. But for your actual services for what you did, not for the stent but for what you did, it was approximately $7,000.00?”
At that point Huebner objected. The court ruled that the parties had stipulated to the reasonable value of the medical expenses and Hamrick's question was irrelevant. At a bench conference Hamrick's counsel explained that the purpose of the question was to show that there was a financial incentive for Huebner to chose to do angioplasty rather than a mere consultation. The court confirmed its ruling and excluded the evidence.
The district court has discretion to determine whether evidence is probative; i.e., whether it has “any tendency in reason to prove” a material fact. K.S.A. 60–401(b); Berriozabal, 291 Kan. at 586. Judicial discretion is abused only when an action is arbitrary, fanciful, or unreasonable. Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997). The district court's decision not to admit further testimony on the amount Huebner charged was not unreasonable. The amount Huebner charged was not probative in light of the fact that there had already been testimony that Hamrick's angioplasty was more expensive than a consultation. Allowing more questions on the matter would have interjected the issue of the amount of Huebner's bill when the parties had stipulated to the reasonable value of the medical services.
We find no abuse of discretion in the district court's ruling. Hamrick does not contend that the charge for the angioplasty procedure was excessive. Her argument goes to the doctor's motivation. Hamrick elicited testimony without objection that Huebner would have charged $250 for a consultation and that Huebner “would have charged about” $7,000 for the angioplasty procedure. This evidence was before the jury.
In their closing arguments, the parties were entitled to argue the fair and reasonable inferences to be drawn from the evidence admitted at trial. See Hudson v. City of Shawnee, 245 Kan. 221, 235, 777 P.2d 800 (1989), modified on other grounds246 Kan. 395, 790 P.2d 933 (1990). We have not been provided the transcript of the final arguments, so we have no way of confirming whether the argument was made to the jury that Huebner had a financial incentive to perform the angioplasty procedure rather than a consultation, or whether the court prevented Hamrick from making such an argument. Hamrick's counsel reported in oral argument before us that no such argument was made to the jury, and we accept that. But it seems to us that it would be a matter of common knowledge to the jurors that a highly technical medical procedure such as an angioplasty would cost more than a mere consultation. Here, the jurors did not have to rely on common knowledge. They had explicit testimony on the relative costs. We do not find that “[t]he very heart of Plaintiff[']s claim was gutted” by the district court's ruling, as Hamrick argues.
Affirmed.