Opinion
NO. 2016-CA-000520-MR NO. 2016-CA-000604-MR
08-24-2018
WENDY J. PALMER; AND JAMIE L. PALMER APPELLANTS/CROSS-APPELLEES v. NICK N. ABEDI, M.D.; SAINT JOSEPH HEALTH SYSTEM, INC.; KENTUCKYONE HEALTH, INC.; CATHOLIC HEALTH INITIATIVES, INC.; AND SAINT JOSEPH MEDICAL FOUNDATION, INC. APPELLEES/CROSS-APPELLANTS
BRIEF FOR APPELLANTS/CROSS- APPELLEES: Sandra M. Varellas D. Todd Varellas Lexington, Kentucky Edward L. Cooley Lexington, Kentucky BRIEF FOR APPELLEES/CROSS- APPELLANTS: Robert F. Duncan Chacey R. Ford Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 13-CI-04807 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON, AND MAZE, JUDGES. MAZE, JUDGE: Wendy and Jamie Palmer appeal from a judgment of the Fayette Circuit Court confirming a jury verdict in favor of Nick N. Abedi, M.D. (Dr. Abedi). They raise numerous issues relating to the trial court's rulings prior to and during trial. They also appeal from the dismissal of their related claims against Saint Joseph Health System, Inc.; KentuckyOne Health, Inc; Catholic Health Initiatives, Inc.; and Saint Joseph Medical Foundation, Inc. (collectively, "the Hospital and affiliated entities"). Dr. Abedi, the Hospital and affiliated entities bring a protective cross-appeal from other rulings by the trial court which they allege would support a judgment in their favor. We conclude that none of the grounds asserted by the Palmers in their direct appeal amount to reversible error. Hence, we affirm the judgments in favor of Dr. Abedi, the Hospital and affiliated entities. Having reached this conclusion, the issues presented in the cross-appeal are moot.
I. Background and Procedural History
The claims in this case arise from Dr. Abedi's treatment of Wendy Palmer (hereafter "Palmer") at St. Joseph Hospital in Lexington (hereafter "the Hospital"). In 2010, Palmer suffered a bowel perforation caused by diverticulitis. As part of the treatment for the condition, Dr. Abedi performed a colostomy/colectomy procedure, which required removal of part of her colon.
In 2011, Dr. Abedi performed several additional procedures on Palmer which are related to but not the subject of this action. During this period, Dr. Abedi performed a colectomy and two colostomy surgeries, as well as two hernia repair surgeries. Dr. Abedi testified that Palmer suffered significant abdominal scarring, infections, and leaks from her colon following these procedures.
On August 8, 2012, Dr. Abedi performed a colostomy takedown procedure to attempt to reconnect Palmer's colon to her rectum. Dr. Abedi used a diverting loop ileostomy, where a portion of the small intestine was looped out of an ostomy site and two small incisions were made in it. One of the incisions was connected to the colon and the other to the rectum. Dr. Abedi testified that, due to the extensive scarring at the end of Palmer's rectum, he performed a side-to-end anastomosis, which connected further down the side of the rectum. To attach the connection, Dr. Abedi used an EEA 28 mm stapler.
Palmer was discharged from the Hospital on August 15, 2012. However, she returned to the Hospital on August 18 complaining of abdominal pain and urinary tract incontinence. Initial testing indicated a bladder infection, but the treatment did not provide lasting relief. Palmer returned to the Hospital on August 28 and was again discharged on September 7.
On November 27, 2012, Dr. Abedi saw Palmer again in preparation for an ileostomy takedown. While she reported occasional fecal and mucus production from her rectum, she also reported leakage of urine, gas, and fecal discharge from her vagina. A November 29, 2012, barium enema study revealed that Palmer was suffering from a rectovaginal fistula - a communication between Palmer's colon, bladder, and vagina. Palmer underwent several additional procedures to correct this condition.
On November 22, 2013, Palmer brought this action, asserting claims against Dr. Abedi for medical negligence and medical battery. Palmer also asserted respondeat superior claims against the Hospital and affiliated entities for the surgery performed by Dr. Abedi. In addition, Palmer asserted claims against the Hospital and affiliated entities for negligent hiring, retention, and supervision of Dr. Abedi. Palmer sought damages for past and future medical expenses, loss of earning capacity and household services, past and future pain and suffering, and punitive damages. Lastly, Palmer's husband, Jamie, asserted claims against all defendants for loss of consortium.
Prior to trial, the court bifurcated the claims against Dr. Abedi from those against the Hospital and affiliated entities. The court also dismissed the battery claim. The matter then proceeded to a jury trial in February of 2016. At trial, Palmer presented expert testimony to the effect that Dr. Abedi acted negligently in his use of the stapler, resulting in the staples piercing the walls of the bladder and vagina and causing the rectovaginal fistula. Dr. Abedi, testifying as both a fact witness and an expert witness, denied any negligence in using the stapler. Dr. Abedi and his other expert witness stated that the fistula could not have been caused in the manner asserted by Palmer's experts. Rather, Dr. Abedi and his expert witnesses were of the opinion that the fistula occurred as a result of Palmer's pre-existing conditions.
At the conclusion of trial, the court granted Dr. Abedi's motion for a directed verdict on the claim for punitive damages. Thereafter, the jury returned a verdict for Dr. Abedi on the remaining negligence claim. Based upon this verdict, the court dismissed the remaining claims against the Hospital and affiliated entities.
II. Issues
Palmer now appeals from this judgment. Dr. Abedi, the Hospital and affiliated entities have filed a protective cross-appeal based upon errors which they allege would warrant a judgment in their favor on the Palmers' claims. In her direct appeal, Palmer has identified twenty-three grounds of alleged error by the trial court. However, many of these grounds are undeveloped in Palmer's brief.
Palmer's arguments can be grouped as follows: (1) Bifurcation of claims against Dr. Abedi and Hospital; (2) Summary Judgment on the Medical Battery claim; (3) Jury Selection; (4) Testimony and Discovery Relating to Dr. Abedi; (5) Issues Relating to Testimony of Dr. Abedi's Experts; (6) Matters relating to Dr. Abedi's "Stapler Limitations" Defense; (7) Matters Relating to Palmer's Experts; (8) Other Evidentiary Issues; (9) Directed Verdict on Punitive Damages claim; (10) Jury Instructions; and (11) Cumulative Error. We will address the issues in Palmer's direct appeal before we consider the need to address those presented in the cross-appeal.
III. Bifurcation of claims against Dr. Abedi and the Hospital
First, Palmer argues that the trial court improperly bifurcated the trials of her claims against Dr. Abedi from her claims against the Hospital and affiliated entities. However, CR 42.02 not only allows, but requires bifurcation upon the court's finding that separate trials will be convenient, will avoid prejudice or will be expeditious. To support the conclusion that bifurcation is warranted, the trial court need only determine either that separate trials will be convenient or will avoid prejudice or will be expeditious and economical. A trial court has broad discretion in ruling on a motion to bifurcate. Island Creek Coal Company v. Rodgers, 644 S.W.2d 339, 349 (Ky. App. 1982). Such a decision will be overturned only if it constitutes an abuse of discretion, which is found where the decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Kentucky Rules of Civil Procedure.
In the current case, the issues relating to the Hospital's liability were contingent upon a finding that Dr. Abedi was negligent. Palmer does not identify any overlapping issues which would affect their respective liability. Likewise, Palmer does not identify how she was prejudiced by the trial court's decision to try the claims relating to Dr. Abedi. Therefore, we find no basis to conclude that the trial court's bifurcation decision constituted an abuse of its discretion.
IV. Summary Judgment on Medical Battery claim
Palmer next argues that the trial court erred in granting Dr. Abedi's motion for summary judgment on her claim for medical battery. A medical battery claim, as distinguished from a medical negligence claim, is an intentional tort. Vitale v. Henchey, 24 S.W.3d 651, 657-58 (Ky. 2000). As such, it includes all of the essential elements for a civil claim of battery. Id. at 657-58. An action for battery "is different from a negligence action for medical malpractice because the claim depends on neither professional judgment nor the physician's surgical skill." Id. at 656.
In pertinent part, Palmer was required to prove that Dr. Abedi intentionally performed the procedure without her informed consent. Id. at 658. See also Hoofnel v. Segal, 199 S.W.3d 147, 150 (Ky. 2006). Like the trial court, we conclude that Palmer's claim for battery is really a claim for negligence because it depends on Dr. Abedi's professional judgment. See Andrew v. Begley, 203 S.W.3d 165, 171-72 (Ky. App. 2006). Palmer concedes that she consented to the colostomy takedown performed by Dr. Abedi. Palmer argues that she did not consent to having her colon attached to her bladder or vagina. However, there is no allegation that Dr. Abedi intended to perform a surgery that was different from the one to which Palmer consented - only that he acted negligently in doing so. Consequently, we must conclude that the trial court properly granted Dr. Abedi's motion for summary judgment on this claim.
V. Jury Selection
Palmer next takes issue with the trial court's rulings granting or denying motions to strike potential jurors for cause. The trial court enjoys broad discretion in deciding whether a juror should be excused for cause. Grubb v. Norton Hosp., Inc., 401 S.W.3d 483, 485 (Ky. 2013). "The central inquiry is whether a prospective juror can conform his or her views to the requirements of the law, and render a fair and impartial verdict based solely on the evidence[.]" Wood v. Commonwealth, 178 S.W.3d 500, 516 (Ky. 2005). There is no "magic question" to rehabilitate a juror who should be considered disqualified by his personal knowledge or his past experience, or his attitude as expressed on voir dire. Montgomery v. Commonwealth, 819 S.W.2d 713, 717-18 (Ky. 1991). Rather, the test is whether, based on the totality of the circumstances, the nature and strength of the juror's opinion are such as in law necessarily raise the presumption of partiality. Id. at 716. We will reverse only upon a showing that the trial court abused its discretion. Rankin v. Commonwealth, 327 S.W.3d 492, 498 (Ky. 2010).
With respect to the dismissed jurors, only one, Juror 3314, had a prior relationship with Dr. Abedi, and he stated that it was mostly positive. However, Jurors 3314 and 3281 stated that they had negative experiences with the Hospital that could color their views. Juror 3392 stated that he had a bad experience with a medical provider in 1968-1970, and that it still affected his views of the profession. The trial court believed that the perception of bias with respect to these three jurors was too strong despite their statements that they could fairly evaluate the evidence. Since the trial court weighed these jurors' credibility and demeanor and stated a reasonable basis to support its conclusion that these jurors could not be unbiased, we find no clear abuse of discretion with respect to the trial court's decision to excuse Jurors 3314, 3281, and 3392 for cause.
The trial court also granted Dr. Abedi's motion to exclude Juror 3078, who was a personal injury attorney, and Juror 3285, who was a litigation paralegal at a personal injury firm. We agree with Palmer that the court may not simply infer bias based upon a juror's unrelated employment in a personal injury practice. See Fields v. Commonwealth, 274 S.W.3d 375, 397-98 (Ky. 2008), overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010).
Furthermore, the record does not support the trial court's conclusion that these jurors could not be objective. Juror 3078 stated that he had recently had a negative experience with an eye surgery. However, Juror 3078 and Juror 3285 both stated that they had done work for plaintiff and defense clients, and that they could render an unbiased decision based on the evidence. Except for their occupations, the trial court could not identify any basis why these jurors could not be objective.
There are no citations to these jurors' responses to questioning in the body of Palmer's brief, but the citations are included in the appendix. We caution that this does not comply with the express requirements of CR 76.12(4)(c), which requires a preservation statement "at the beginning of the argument[.]" However, the citations in the appendix are sufficient so that this Court is not required to scour the record. Therefore, we will overlook the deficiency in the brief.
On the other hand, a party does not have a right to have a particular person sit as a juror. Hodge v. Commonwealth, 17 S.W.3d 824, 841 (Ky. 2000). Rather, a party only has a right to have a particular class of people serve on the jury and the right to exclude certain individuals. Id. While Palmer generally objects to the remaining jury panel, she does not argue that the seated jury was unable to render a fair and unbiased verdict. Consequently, we must conclude that any error in excluding these jurors was harmless.
Palmer also argues that the trial court improperly denied her motion to excuse Juror 3169 for cause. The trial court noted that this juror had stated that she had a negative experience with a recent lawsuit and would have difficulty weighing the facts. We conclude that the court stated a substantial basis for its decision to deny the strike for cause.
Furthermore, a litigant must show that she used a peremptory strike to remove an unqualified juror and subsequently exhausted all peremptory strikes. Grubb, 401 S.W.3d at 487. Palmer's brief does not assert that she exhausted her peremptory challenges as a result of the trial court's decision. In light of her failure to properly develop the issue, we decline to address it further.
VI. Testimony and Discovery relating to Dr. Abedi
The majority of issues raised in Palmer's direct appeal concern the trial court's rulings on evidentiary issues at trial and related discovery issues. Since many of these issues are overlapping, we have elected to address them together. Rulings upon the admissibility of evidence rest within the discretion of the trial judge and will not be reversed in the absence of a clear abuse of that discretion. Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994).
First, Palmer raises a number of issues relating to Dr. Abedi's trial testimony. Palmer argues that the trial court improperly allowed Dr. Abedi to testify as an expert witness, and to incorrectly identify the standard of care. Palmer further argues that the trial court improperly limited her cross-examination and discovery of matters relating to Dr. Abedi's credibility.
A. Qualification of Dr. Abedi as an Expert Witness
As noted, the trial court allowed Dr. Abedi to testify as an expert witness, in addition to his factual testimony as Palmer's treating physician. Palmer argues that Dr. Abedi was not qualified to testify as an expert because he had never before been qualified as an expert and he admitted that he rarely performed the colorectal surgery at issue in this case. However, Dr. Abedi's lack of specialized training goes only to the weight, not the competency of his testimony. Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. App. 1992). Likewise, the jury could properly assess Dr. Abedi's obvious bias as both an expert and the defendant in this case in determining the weight to be given to his testimony. See Woolum v. Hillman, 329 S.W.3d 283, 288 (Ky. 2010). Apart from very general argument, Palmer does not advance any specific basis to support her conclusion that Dr. Abedi was not qualified to testify as an expert.
B. Dr. Abedi's reference to Intent
Palmer separately argues that Dr. Abedi improperly testified that the standard of care required proof that he intended to cause physical harm. The trial court granted Palmer's pre-trial motion in limine to preclude the defense witnesses from commenting on intent to cause physical harm. Palmer identifies only one point during trial when Dr. Abedi stated that he did not "knowingly" connect the colon to the bladder or the vagina. In overruling Palmer's objection to the testimony, the trial court concluded that the pre-trial order did not preclude Dr. Abedi from testifying as to his intent during the surgery, but only regarding intent as an element of the standard of care. We conclude that, in context, Dr. Abedi's testimony did not materially misstate the standard of care. Furthermore, given Palmer's failure to further develop this argument, we cannot find that Palmer was unfairly prejudiced by the trial court's decision to overrule her objection on this point.
C. Cross-Examination of Dr. Abedi
Palmer next argues that the trial court erred in limiting her cross-examination of Dr Abedi. During his deposition, Palmer's counsel asked Dr. Abedi about any prior malpractice actions against him in general and specifically any claims against him involving an operation on the wrong body part. Dr. Abedi stated that he had never been named in such an action. He made similar statements in his employment application and credentialing notes to St. Joseph. In further discovery, Palmer found that Dr. Abedi's conduct had been at issue in another such action, although he was not as a named party.
The trial court concluded that evidence of any prior bad acts by Dr. Abedi were not admissible under KRE 404(b) because the alleged acts of misconduct were not probative as to his credibility in this case. For similar reasons, the trial court denied the motion to compel discovery about payments from the Hospital to or on behalf of Dr. Abedi. Palmer argues that the evidence was discoverable and admissible for impeachment purposes because Dr. Abedi specifically placed his own credibility at issue.
Kentucky Rules of Evidence.
We agree with Palmer "that a party is entitled to cross-examine an expert on any subject that reflects on the expert's credibility." Kemper v. Gordon, 272 S.W.3d 146, 155 (Ky. 2008). Since Dr. Abedi testified as both a fact witness and an expert witness, his credibility and biases were directly at issue. On the other hand, a witness generally may not be impeached on collateral matters that merely show a propensity to engage in misconduct and only marginally relate to credibility.
In support of her argument, Palmer cites to Trover v. Estate of Burton, 423 S.W.3d 165, 174 (Ky. 2014) and Branham v. Rock, 449 S.W.3d 741 (Ky. 2014). In Trover, supra, as in the present case, the defendant physician also testified as an expert witness. Plaintiff's counsel attempted to cross-examine the physician about his prior medical licensure issues. Our Supreme Court held that the trial court properly excluded the evidence because the license-status evidence did not directly contradict the physician's trial testimony. The Court concluded that the physician's unrelated misconduct toward other patients did not directly reflect on his credibility or on his qualification as an expert. 423 S.W.3d at 175-76.
Furthermore, there was substantial dispute whether the alleged prior acts of misconduct actually occurred and whether the probative value of the prior-act evidence would be substantially outweighed by its prejudicial effect. Id. at 176. Thus, the Court concluded that the evidence would, at most, only reflect on the physician's propensity to commit misconduct, which would be inadmissible under KRE 404(b). Id. at 176-77. In the alternative, our Supreme Court concluded that the evidence was properly excluded under KRE 403, because the limited relevance of the evidence was substantially outweighed by its unfair prejudicial effect. Id. at 178.
Similarly, in Branham v. Rock, supra, the defendant physician also testified as an expert witness, and the plaintiff's counsel sought to impeach the physician with evidence of prior medical licensure proceedings. As in Trover, the Court held that the evidence concerning the physician's licensure problems were not probative of either his credibility and knowledge as an expert witness, or to his medical knowledge regarding the applicable standard of care. 449 S.W.3d at 747-48. The Court further held that the trial court properly prevented the plaintiff from cross-examining the physician about inconsistencies between his deposition testimony and the medical-licensure records. The Court concluded that introduction of that evidence would have confused the jury, caused undue delay, and would have unfairly prejudiced the physician with matters not directly relevant to the claims at hand. Id. at 748.
We conclude that the same reasoning applies in this case. Palmer sought to cross-examine Dr. Abedi about his conduct in a prior malpractice case and his failure to disclose his involvement in that matter. However, even though Dr. Abedi was a treating physician in that matter, he was not a named party to the lawsuit arising from it. As in Branham, allowing Dr. Abedi to be cross-examined regarding that matter and his related deposition testimony would have introduced collateral matters with only limited relevance to his credibility in the current case. Therefore, we conclude that the trial court did not abuse its discretion by excluding the evidence.
D. Discovery of Documents relating to payments to Dr. Abedi
Palmer sought additional discovery about any payments from the Hospital to Dr. Abedi or for settlement of claims involving Dr. Abedi. A non-party expert witness may be questioned both as to the percentage of income attributable to his or her services as an expert witness or consultant and as to the total amount of income that he or she derives from such services. Primm v. Isaac, 127 S.W.3d 630, 637-38 (Ky. 2004). However, absent special circumstances, such an expert is not required to disclose his or her gross compensation from all sources, including those unrelated to litigation activities. Id. at 636-37. Requiring such disclosure would provide the jury with little information relevant to a fair assessment of the expert's credibility, and would create a real possibility of creating confusion, distraction and unfair prejudice. Id. at 637.
The question is somewhat more complicated when the defendant testifies as an expert witness in his own case. But we agree with the Hospital that the records did not relate to Dr. Abedi's testimony as an expert in this case. Furthermore, we agree Dr. Abedi's bias as an expert was evident to the jury because he was also a defendant. And as noted above, any probative value to that information would be outweighed by the likelihood of creating confusion of the issues. Under the circumstances, we cannot find that the trial court abused its discretion by declining to order production of these records.
VII. Issues relating to Testimony Dr. Abedi's experts
A. Discovery of Expert's Draft Reports
Palmer next raises three issues concerning the testimony of Dr. David Beck, who testified as an expert for Dr. Abedi. First, Dr. Beck testified in his deposition that Dr. Abedi's counsel prepared and sent him draft disclosures, which he reviewed for accuracy. The trial court denied Palmer's request for discovery of those drafts based upon Dr. Abedi's assertion of attorney-client privilege. Palmer argues that attorney-client privilege does not apply, and the draft reports were subject to discovery.
Palmer's brief only identifies the trial court's denying her motion to compel discovery of the draft reports, not her motion itself. Furthermore, Palmer's failure to develop this issue makes it difficult to determine why the draft reports were subject to discovery. However, we agree with Palmer that consultations with an expert who is hired to testify at trial are not subject to attorney-client privilege. Sanborn v. Commonwealth, 892 S.W.2d 542, 550 (Ky. 1994). In addition, since the matter concerned documents which Dr. Beck reviewed in preparation for the litigation, it would seem that the appropriate inquiry would be under the work-product doctrine of CR 26.02(3)(a), rather than under attorney-client privilege.
We need not reach this question because Palmer makes no argument that she was unable to adequately prepare for Dr. Beck's testimony without these documents. Palmer does not identify how these documents would have been relevant to Dr. Beck's credibility or any other matters at issue in trial. It is not this Court's role to flesh out arguments left undeveloped in an appellant's brief. Therefore, we decline to address the issue further.
B. Scope of Expert's Testimony
Second, Palmer argues that the trial court improperly denied her motion to limit the scope of Dr. David Beck's expert testimony. Dr. Abedi and the Hospital retained Dr. Beck early in the litigation. Based on the medical records provided at that time, Dr. Beck stated his initial opinion that Dr. Abedi did not violate the standard of care. Prior to giving his deposition, Dr. Beck reviewed the other depositions and records produced during discovery, and he supplemented his opinion with that information. Palmer argues that Dr. Beck's testimony should have been excluded or at least limited to those records which he reviewed when he formed his opinion.
Palmer fails to set out any factual or legal basis for this position. Dr. Beck was subject to cross-examination during his deposition and at trial concerning the basis for his opinions. Any change in the reasons for his opinion only affect the weight to be given to his testimony, not its admissibility. Furthermore, Palmer does not allege that she was unfairly surprised by Dr. Beck's trial testimony. Therefore, we find no error in allowing Dr. Beck's testimony.
C. Testimony Concerning Liability of Non-Settling Non-Parties
Palmer contends that the trial court improperly allowed Dr. Abedi to implicate the potential liability of other treating physicians who were never named as parties to this action. During the direct examination of Dr. David Beck, defense counsel asked if he had any criticisms of Dr. Sandra Beck, who performed several subsequent corrective surgeries on Palmer. After Dr. Beck voiced criticisms of several decisions by Dr. Sandra Beck, Palmer's counsel objected. Palmer specifically argued that Dr. David Beck's opinions on this matter had not been disclosed prior to trial. Defense counsel noted that Dr. Beck had been questioned on these matters in his deposition, and the basis for his opinions were known prior to trial. The trial court agreed and overruled the objection.
On appeal, Palmer argues that this testimony violated the provisions of the trial court's order in limine prohibiting evidence or argument regarding the alleged fault of non-parties, as well as the provisions of KRS 411.182. However, Palmer did not raise this particular objection at trial, and she cannot raise it for the first time on appeal. Fischer v. Fischer, 197 S.W.3d 98, 102 (Ky. 2006). Furthermore, we agree with Dr. Abedi and the Hospital that the testimony was relevant to the issue of causation. Specifically, the testimony supported Dr. Abedi's position that the fistula developed after his surgery, and not as a result of his actions during surgery. For this reason, the testimony was admissible notwithstanding the potential implication of fault of non-settling non-parties. Therefore, we find that the trial court did not abuse its discretion in allowing the testimony.
Kentucky Revised Statutes.
VIII. Matters Relating to Dr. Abedi's "Stapler Limitations" Defense
Palmer also raises an issue that overlaps the testimony presented by Dr. Abedi, Dr. Abedi's experts, and Palmer's experts. The issue relates to Dr. Abedi's reliance on the "stapler limitations" defense. In their testimony, Dr. Abedi and his experts testified that the EEA 28 mm stapler used during Palmer's surgery would not allow excess tissue to be caught in the staples. Dr. Abedi's counsel also cross-examined Palmer's expert, Dr. Timothy Geiger, on this point, and specifically referenced a product insert that the manufacturer included with the stapler. In addition, Palmer's counsel cross-examined Dr. Geiger using medical illustrations demonstrating this "stapler limitations" defense.
A. Identification of "Stapler Limitations" Defense and Testimony
Palmer first argues that Dr. Abedi failed to disclose this defense as required by the pre-trial order. Palmer further argues that the testimony relating to this defense was not disclosed as required by CR 26. And finally, Palmer contends that product insert and the illustrations were never properly authenticated, and thus were not admissible in the cross-examination of Dr. Geiger.
As an initial matter, Palmer does not identify where she preserved her objection to Dr. Abedi's reliance on the stapler limitations defense. Furthermore, the purpose of CR 26.02 is "to enable counsel to adequately prepare for cross-examination," of expert witnesses. Newsome By & Through Newsome v. Lowe, 699 S.W.2d 748, 751 (Ky. App. 1985). In his deposition, Dr. Abedi stated his position that the stapler was not capable of penetrating through multiple layers of tissue. We are concerned that Dr. Abedi's pre-trial disclosures failed to include similar conclusions by his other experts. But considering the limited preservation of this issue and the voluminous record, we cannot say that the deficiency was brought to the trial court's attention. Therefore, we decline to address this issue further.
The citation in Palmer's brief only refers to her objection to Dr. Abedi's use of the product insert during cross-examination of Dr. Geiger. --------
B. Illustrations
Prior to trial, Palmer objected to Dr. Abedi's attempt to introduce fifteen illustrations which were prepared to demonstrate his position regarding Palmer's theory of the case. Palmer argued that the illustrations had not been authenticated and that they had not been disclosed as required by the pre-trial order. The trial court held that the illustrations could be shown to the jury as demonstrative evidence if a foundation was laid but would not be admitted as exhibits. But later, during trial, the court allowed ten of those illustrations to be admitted as exhibits, concluding that Dr. Geiger's testimony established a sufficient foundation for them.
We review the trial court's rulings on the admission of exhibits, including matters relating to foundation and authentication, for abuse of discretion. See Gorman v. Hunt, 19 S.W.3d 662, 668-69 (Ky. 2000). We, like the trial court, have concerns about Dr. Abedi's late production of the illustrations. We are also concerned with the manner in which the trial court allowed them to be introduced as exhibits after expressly stating that they would not be admitted.
But the question on appeal is whether the trial court abused its discretion in admitting them. Dr. Geiger had the opportunity to review the illustrations and to state whether he believed that they accurately reflected the anatomies at issue in this case. While he took issue with the conclusions to be drawn from the illustrations, he did not state that they were materially inaccurate. Dr. Geiger had a full opportunity to explain his objections to the illustrations and to explain to the jury why he believed that the illustrations did not accurately reflect Palmer's theories of the case. Under the circumstances, we cannot find that the trial court abused its discretion by admitting the illustrations, or that Palmer was unfairly prejudiced as a result.
C. Product Insert
On direct examination, Palmer's counsel asked Dr. Geiger about the EEA 28 mm stapler used during the surgery. Palmer introduced the same model stapler as an exhibit, and Dr. Geiger used it to illustrate his testimony. When asked about the "stapler limitations" issue, Dr. Geiger testified that the stapler was capable of puncturing through multiple layers of tissue.
During cross-examination, Dr. Abedi's counsel sought to ask Dr. Geiger about the language in the product insert that accompanied the stapler discussing the capabilities of the stapler. Palmer's counsel objected, arguing that the product insert was not identified as an exhibit, nor was it medical literature within the meaning of KRE 803(18). The trial court concluded that the introduction of the stapler was sufficient to bring in the manufacturer's product insert that was included with the stapler. The stapler insert was not admitted as an exhibit, but Dr. Abedi's counsel was permitted to question Dr. Geiger about its content.
As an initial matter, we note that the trial court's pre-trial order only precluded the admission or use of undisclosed medical literature during direct examination. Thus, Dr. Abedi's use of the insert during Dr. Geiger's cross-examination was not a violation of that order. However, we agree with Palmer that the product insert was not a learned treatise within the meaning of KRE 803(18). Consequently, it was not admissible as evidence without a sufficient foundation or authentication.
Nevertheless, the insert was not admitted as an exhibit, and it served as a basis for only a very brief portion of Dr. Geiger's cross-examination. Dr. Geiger acknowledged that the product insert stated that the stapler could only penetrate through less than two millimeters of tissue. But he further testified that the tissue could be compressed to allow the stapler to penetrate all of the layers necessary under his theory of the case. In light of all of the evidence, we conclude that any error in allowing the product insert to be used was harmless.
IX. Testimony of Palmer's experts
A. Requirement of a Medical Billing Expert
Palmer next argues that the trial court improperly required her to present a "medical billing expert" to testify as to whether her claimed medical expenses incurred from the August 8, 2012, surgery were reasonable and necessary. Dr. Abedi's counsel objected to allowing Dr. Geiger to testify regarding the items listed on Palmer's medical bills. The trial court concluded that, since Dr. Geiger admitted that he was not an expert on medical billing, he was not qualified to give an opinion as to whether the charges were reasonable and necessary.
However, the trial court allowed Dr. Geiger to express an opinion as to the reasonableness of particular medical bills. Furthermore, the medical bills were admitted through Palmer's testimony. And finally, the jury never reached the issue of damages in this case. Thus, while we do not necessarily agree with the trial court that a medical billing expert was required, we cannot find that Palmer was prejudiced by the trial court's ruling.
B. Testimony of Dr. John Kostelic
At trial, Dr. John Kostelic, a treating radiologist, testified regarding a short report he provided in the course of Palmer's treatment. Dr. Kostelic was allowed to testify concerning his report detailing his review of Palmer's August 18, 2012, CT scan. That report did not mention staples or sutures. But in his 2015 deposition, Dr. Kostelic was asked his opinions regarding the location of staples in that CT scan. The trial court excluded the testimony because Dr. Kostelic had only been called to testify concerning his treatment of Palmer, and not to give opinions regarding the treatment provided by Dr. Abedi.
We find no abuse of discretion. CR 26.02 requires notice as set forth in the rule when a witness is offered as an expert. Hashmi v. Kelly, 379 S.W.3d 108, 114 (Ky. 2012). Since Palmer identified Dr. Kostelic only as a treating physician, his subsequent interpretations of the CT scans amounted to expert testimony and was not admissible absent prior notice.
Palmer also argues that Dr. Kostelic should have been permitted to testify concerning his observations of a cystoscopy Study performed by Dr. Deborah Erickson. The trial court excluded that evidence because the video of the cystoscopy could not be produced. The trial court likewise prohibited Dr. Kostelic from testifying about the locations of staples and sutures that he observed during the cystoscopy. Palmer maintains that Dr. Kostelic's testimony concerning his observations during the cystoscopy were admissible as lay witness testimony.
We agree with Palmer that a witness who is not testifying as an expert may express opinions or inferences which are "rationally based on the perception of the witness[.]" KRE 701. However, the "best evidence rule," required production of the original video to prove its content. KRE 1002. Since the video of the cystoscopy was not available, the trial court was concerned that allowing Dr. Kostelic's testimony concerning what he observed during the procedure would circumvent the purpose of the best evidence rule. The trial court was also concerned that Dr. Abedi would be unfairly prejudiced because his counsel could not adequately cross-examine Dr. Kostelic on this matter. We conclude that the trial court had a reasonable basis to limit Dr. Kostelic's testimony.
Furthermore, the trial court allowed Dr. Erickson to testify regarding what was seen on the cystoscopy. Thus, we cannot find that Palmer was prejudiced by the trial court's ruling. Consequently, any error in limiting Dr. Kostelic's testimony was, at most, harmless.
X. Other evidentiary Issues
A. Introduction of evidence relating to health insurance
Palmer's next issue concerns a question asked during the cross-examination of her expert, Dr. Jeffrey Freed. Defense counsel asked Dr. Freed to review Palmer's medical bills and state whether he believed that the expenses listed were reasonable, necessary, and related to Palmer's August 8, 2012, surgery performed by Dr. Abedi. In asking the question, counsel noted that health insurance information had been redacted from the bills.
Palmer argues that the question as phrased was a deliberate violation of the collateral source rule. However, the trial court sustained Palmer's objection to the question and admonished the jury to disregard both the question and Dr. Freed's answer. A jury is presumed to follow an admonition to disregard evidence; thus, the admonition cures any error. Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336, 349 (Ky. 2010). When an admonition is given and the appellant fails to request further relief, any error in failing to grant such relief is not preserved for review. Derossett v. Commonwealth, 867 S.W.2d 195, 198 (Ky. 1993). Since Palmer does not identify that she requested a mistrial or other relief, we decline to address the issue further.
B. Exclusion of Discovery and Testimony Concerning alleged alterations to Palmer's Medical Records
Prior to trial, the court entered an order in limine limiting questioning and argument about alleged alterations to Palmer's medical records. Palmer alleges that the medical audit trail revealed numerous edits which would have cast doubt on the reliability of Dr. Abedi's experts who relied on these records. She further argues that the trial court abused its discretion by denying her request to call a corporate representative from the Hospital for questioning about the alleged alterations to the records.
However, Palmer's counsel had the opportunity to cross-examine Dr. Abedi about the alleged alterations to the medical records. The trial court limited other questioning because Palmer presented no evidence showing that the Hospital's records had been altered in any significant way so as to affect their reliability as evidence. In the absence of any showing that the testimony of the corporate representative would have led to the discovery of admissible evidence, we decline to address that issue further.
C. Limitation on Use of the Term "Wrong-Site Surgery"
Palmer also contends that the trial court erred by prohibiting her counsel from using the term "wrong-site" surgery in opening statements or until after her experts testified at trial. However, Palmer does not identify how the presentation of her case was prejudiced by this restriction. Indeed, she concedes that her counsel was permitted to use this term following the testimony of Dr. Geiger. Thus, any error by the trial court was harmless.
XI. Jury Instructions
Palmer next argues that the trial court failed to properly instruct the jury as she requested. The trial court's first instruction to the jury provided as follows:
INSTRUCTION NO. 1Ten of the twelve jurors answered "No" to this question. Based upon this response, the trial court entered a judgment for Dr. Abedi.
It was the duty of Nick N. Abedi, M.D., as an employee of Saint Joseph Medical Foundation, Inc., in his treatment of Wendy J. Palmer, to exercise that degree of care as would be expected of a reasonably competent surgeon acting under the same or similar circumstances as this case.
QUESTION NO. 1
Do you believe from the evidence that Nick N. Abedi, M.D., failed to comply with this duty set out in Instruction No. 1?
Palmer argues that the instructions should have required the jury to make a finding whether Dr. Abedi's treatment complied with the degree of care to be expected of a reasonably prudent colorectal surgeon, and that the general instruction for a "reasonably competent" surgeon did not accurately reflect the standard of care. Palmer also submitted separate instructions for: (1) increased risk of future harm; (2) aggravation of pre-existing physical condition; (3) punitive damages; (4) presumptions regarding missing evidence; and (5) liability for subsequent malpractice.
Alleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review. Hamilton v. CSX Transp. Inc., 208 S.W.3d 272, 275 (Ky. App 2006). "Instructions must be based upon the evidence and they must properly and intelligibly state the law." Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981). As long as the statements of law contained in the instructions are substantially correct or are not materially misleading, the jury instructions will not be deemed improper. Hamilton, 208 S.W.3d at 275 (citing Ballback's Adm'r v. Boland-Maloney Lumber Co., 306 Ky. 647, 652-53, 208 S.W.2d 940, 943 (1948)).
Since the jury found no negligence under the first instruction, our inquiry must begin with the sufficiency of the general negligence instruction. On appeal, our first question must look to whether the trial court's instruction was substantially correct, and whether the alternative instructions tendered by Palmer accurately reflected the applicable standard of care. Thus, we must initially focus on the proposed instructions for the reasonably prudent physician standard, and the colorectal surgeon standard.
Our Supreme Court has consistently held that, in a medical malpractice case, the plaintiff must prove that the treatment given was below the degree of care and skill expected of a reasonably competent practitioner and that the negligence proximately caused the injury or death. Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 113 (Ky. 2008) (citing Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d 682 (Ky. 2003); Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991)). See also Reams v. Stutler, 642 S.W.2d 586 (Ky. 1982); Blair v. Eblen, 451 S.W.2d 370, 373 (Ky. 1971). In this case, the jury instructions were consistent with the applicable standard of care. Furthermore, Palmer does not point to any authority which would hold a physician who specializes in colorectal surgery to a higher or different standard than a general surgeon performing the same procedure under similar circumstances. Finally, since the jury found for Dr. Abedi on the issue of negligence, any error in refusing to submit Palmer's other tendered instructions was harmless.
XII. Directed Verdict on Punitive Damages
The trial court directed a verdict for Dr. Abedi on the issue of punitive damages, concluding that there was no evidence of gross negligence. Palmer argues that there was sufficient evidence to warrant submitting that issue to the jury. But since the jury found for Dr. Abedi on the issue of negligence, Palmer was clearly not prejudiced by the trial court's decision to direct a verdict on the issue of punitive damages. Therefore, we decline to address the issue further.
XIII. Cumulative Error
Lastly, Palmer asserts that she was unfairly prejudiced by the cumulative effect of all of the trial court's errors and abuses of discretion. "Cumulative error" is appropriate "only where the individual errors were themselves substantial, bordering, at least, on the prejudicial. If the errors have not 'individually raised any real question of prejudice,' then cumulative error is not implicated." Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012) (quoting Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). In this case, we have found most of Palmer's assertions of error to be unsupported, and the remaining errors to be harmless, at most. While we cannot say that we would have reached the same decisions in all of the discretionary matters, we conclude that the trial, as a whole, was fundamentally fair. Therefore, we find no basis to set aside the jury's verdict.
XIV. Cross-Appeal Issues
In their cross-appeal, Dr. Abedi, the Hospital and affiliated entities assert four grounds of error which they claim would have warranted a judgment in their favor. However, their cross-appeal of these issues merely protected their objections to the trial court's rulings if we found valid grounds to reverse in Palmer's direct appeal. Since we find no basis to set aside the trial court's rulings or judgment, the issues raised in their cross-appeal are now moot.
XV. Conclusion
Based upon the foregoing, we affirm the judgment of the Fayette Circuit Court confirming the jury verdict in favor of Dr. Abedi and dismissing Palmer's remaining claims against the Hospital and affiliated entities. Our disposition of the direct appeal renders the cross-appeal moot.
ALL CONCUR. BRIEF FOR APPELLANTS/CROSS-
APPELLEES: Sandra M. Varellas
D. Todd Varellas
Lexington, Kentucky Edward L. Cooley
Lexington, Kentucky BRIEF FOR APPELLEES/CROSS-
APPELLANTS: Robert F. Duncan
Chacey R. Ford
Lexington, Kentucky