Blake, et al. v. Clein
| Docket Number: | 2002-CA-00786-SCT Linked Case(s): 2002-CA-00786-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 04-07-2005 Opinion Author: Randolph, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Medical malpractice - Theory of defense instructions - Admission of testimony - M.R.E. 401 - M.R.C.P. 31 - M.R.C.P. 45 - M.R.E. 804 - M.R.E. 613(b) - Use of words curse or witchcraft - Expert testimony - Section 11-1-61 - M.R.E. 702 - Photographs of amputation - Exhibits - Pre-existing condition instruction - Non-taxability of damages - Shoplifting conviction - Missing page of record - Sufficiency of evidence Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson and Dickinson, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Easley and Graves, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 02-19-2002 Appealed from: Hinds County Circuit Court Judge: Tomie Green Disposition: Jury verdict in favor of Clein and jointly against the defendants for $3,500,000. Case Number: 251-97-1003 CIV |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kendall Blake, M.D. and Jackson Bone and Joint Clinic, L.L.P. |
STUART ROBINSON, JR., RICHARD T. CONRAD, LEO JOSEPH CARMODY, PAMELA SUE RATLIFF |
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| Appellee: | David Alexander Clein | LANCE L. STEVENS, RODERICK D. WARD, III, MICHAEL D. GREER |
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| Topic: | Medical malpractice - Theory of defense instructions - Admission of testimony - M.R.E. 401 - M.R.C.P. 31 - M.R.C.P. 45 - M.R.E. 804 - M.R.E. 613(b) - Use of words curse or witchcraft - Expert testimony - Section 11-1-61 - M.R.E. 702 - Photographs of amputation - Exhibits - Pre-existing condition instruction - Non-taxability of damages - Shoplifting conviction - Missing page of record - Sufficiency of evidence |
| Summary of the Facts: | David Clein, and his wife, Deborah Clein, filed a medical malpractice action against Dr. Kendall Blake and the Jackson Bone and Joint Clinic, L.L.P. Deborah subsequently dismissed her suit for loss of consortium with prejudice. The jury returned a verdict in favor of Clein and jointly against the defendants for $3,500,000. Dr. Blake and JBJC appeal. |
| Summary of Opinion Analysis: | Issue 1: Theory of case instructions Dr. Blake and JBJC argue that it was error to refuse two of their instructions. These instructions should have been submitted to the jury. Each presented separate theories of the defendants’ case, were not repetitive, correctly stated the law, and had a proper foundation based on the evidence presented. Issue 2: Admission of testimony Dr. Blake and JBJC argue that the court erred in excluding the testimony of Clein’s mother-in-law. The judge failed to require the physical presence of this witness in order to make a judicial determination on the record under the Mississippi Rules of Civil Procedure as to the witness’s competency, or require testimony of any physicians to make a judicial determination on the record of the validity of her alleged unavailability. To compound these errors, the judge incorrectly excluded her Rule 31 deposition in its entirety, from being heard by the jury. This was clearly erroneous. Under M.R.E. 401, if the evidence has any probative value at all, the rule favors its admission. Any witness is competent to testify who has evidentiary facts within his personal knowledge, gained through any of his senses. Portions of this witness’s testimony should have been admitted as it was clearly relevant and had probative value. The judge instructed the defendants to submit written questions as provided in M.R.C.P. 31 to Clein’s mother-in-law. It was error for the judge to order a written deposition based solely on conflicting doctor’s notes or letters, especially when they only raise potential health problems, not probable. An oral deposition has the advantage of allowing cross examination of an evasive, recalcitrant, or hostile witness. Therefore, the court should have held an evidentiary hearing regarding the witness’s condition, with the doctors testifying under oath, under cross-examination regarding their opinions and the basis of same. According to M.R.C.P. 45, on timely motion, the court can squash a subpoena if it subjects a person to undue burden. However, neither party filed a motion to quash the subpoena issued to Clein’s mother-in-law. The judge erred when she called the doctor on her own initiative, without informing either party of her intentions to do so, and without allowing either party to explore the basis of the doctor’s opinion. Furthermore, the judge’s inexplicable reliance on a physician’s assessment who had not seen or physically examined the witness in over a year, was clear error. The judge also abused her discretion in excluding the witness’s written deposition in the entirety based on the witness’s statement that she was under the influence of drugs and that she could not guarantee the truthfulness of her answers. Drug and alcohol abuse does not render a witness incompetent per se. The testimony of this witness was relevant because she raised issues regarding the legitimacy of plaintiff’s claims, and she had firsthand information regarding plaintiff’s physical and mental condition both before and after Dr. Blake’s treatment. The defendants also argue that one of Dr. Blake’s nurses should have been allowed to testify to the substance of a phone conversation with Clein’s mother-in-law and/or her written memo of the conversation made at or near the time of the phone call should have been admitted into evidence. They argue that since the court excluded this witness’s testimony and written deposition, she became an unavailable witness as described in M.R.E. 804. The conditions for admissibility under Rule 804 were satisfied. The statement was offered because the witness raised questions regarding the legitimacy of the plaintiff’s claims and had information regarding Clein’s physical and mental state before and after the surgery performed by Dr. Blake. The nurse’s testimony would have provided the jury with probative information concerning a phone call by Clein’s mother-in-law. Additionally, M.R.E. 613(b) provides for the admissibility of prior statements of witnesses. Had the written deposition of the witness been introduced into evidence, then Rule 613 would also apply to the nurse’s testimony, as the witness had admitted to making the call but denied remembering why. Issue 3: Use of words curse or witchcraft In his medical records, Clein stated that he believed his dead mother, who practiced witchcraft, had placed a curse on him, which resulted in his amputation and condition. At trial, the judge ruled that the use of the words “curse” or “witchcraft” could not be used, and the defendants argue this was error. Evidence, even if otherwise inadmissible, can be properly presented where a party has opened the door. The plaintiff opened the door to this inquiry by offering into evidence his medical records, without redacting the records. In addition, the probative value of exploring the origin and/or source, cause, and extent of Clein’s emotional distress, mental anguish, and psychological injury, outweighed the danger of unfair prejudice. Issue 4: Expert testimony The defendants argue that section 11-1-61 precludes expert medical testimony by a physician not licensed within the United States. Just because the statute reads that a person may qualify as an expert if licensed in this or another state, does not mean that one may only qualify as an expert if licensed in the United States. However, under M.R.E. 702, the orthopedic surgeon was not qualified to testify as to the standard of care since he testified about a standard of care in the U.S. at a time when he was not a licensed orthopedic surgeon in either Austria or the U.S. Issue 5: Photographs of amputation A photograph, even if gruesome, grisly, unpleasant, or even inflammatory, may still be admissible if it has probative value and its introduction into evidence serves a meaningful evidentiary purpose. Here, the photographs of the amputation were exhibited for no meaningful evidentiary purpose. The pictures in question (an original and one enlarged blurry copy) are of an unidentifiable, bloody, severed body part. Issue 6: Exhibits Two exhibits showed Clein’s original injuries dating back to 1981, with one exhibit purportedly showing the history of the foot upon presentation to Dr. Blake. Defendants argue that the exclusion of these exhibits was error. While there is no error in the exclusion of the exhibit depicting Clein’s original injuries with lacerations shown on the outside of the foot, there was error in excluding the exhibit containing an x-ray and a picture of Clein’s bones as they were fractured in the motorcycle accident and the exhibit containing a depiction of the history of the foot upon presentation to Dr. Blake. Dr. Blake should have been allowed to utilize the illustrations in his testimony. Issue 7: Pre-existing condition instruction The defendants argue that the court erred in instructing the jury concerning aggravation of the plaintiff’s preexisting mental conditions. One who injures another suffering from a pre-existing condition is liable for the entire damage when no apportionment can be made between the pre-existing condition and the damage caused by the defendant — thus the defendant must take his victim as he finds her. This instruction was proper to inform the jury of how to allocate damages for Clein’s claimed mental distress. Issue 8: Non-taxability of damages Dr. Blake and JBJC argue that the jury should have been instructed that if they returned an award for damages, this award would not be taxable. A majority of states do not permit jury instructions as to the non-taxability of damages. Therefore, the court did not err in refusing to instruct the jury as to the non-taxability of damages. Issue 9: Shoplifting conviction Defendants argue that the fact that Deborah Clein, a former plaintiff who dismissed her case with prejudice, submitted false discovery responses about a shoplifting conviction, should have been disclosed to the jury. Deborah was not called as a witness at trial. Therefore, even if otherwise admissible, this issue is moot. Issue 10: Missing page Defendants argue that because a page of an exhibit is missing from the record on appeal, they should be granted a new trial. Trial judges cannot be held in error because an exhibit has been misplaced. Issue 11: Sufficiency of evidence Dr. Blake and JBJC argue that not one of plaintiff’s medical experts ever testified to a reasonable degree of medical probability or certainty that plaintiff’s amputation and other damages were proximately caused by the surgery performed by Dr. Blake. As a whole, although disputed, the testimony was sufficient for reasonable and fairminded jurors to conclude that the procedure performed by Dr. Blake was a breach of the standard of care, that Dr. Blake violated the standard of care by not adequately describing the risks when obtaining consent to perform the surgery, and that the surgery was a proximate or proximate contributing cause of Clein’s amputation. |
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