Opinion
No. WD55285.
Opinion Filed: April 27, 1999.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THE HONORABLE JON REGINALD GRAY, Judge.
David T. Greis, Kansas City, for appellant.
Norman I. Reichel, Jr., Kansas City, for respondent.
Before Ulrich, P.J., Howard, J. and Riederer, J.
David Nelson, Frank Nelson, Lana Beer, and Jeffrey Nelson (Plaintiffs) appeal from the judgment entered on jury verdict in favor of Michael Waxman, M.D. and the Kansas City Pulmonary Clinic, P.A. (Defendants) in their action for the wrongful death of Iris Jeanne Nelson, Plaintiffs' wife and mother. Plaintiffs claim that the trial court erred in (1) permitting the cross-examination of Plaintiffs' expert, Dr. Donald DeSantis, regarding his failure of the examination for board certification in critical care; (2) admitting the curriculum vitae of Defendants' expert, Dr. Susan Pingleton; (3) allowing defense counsel to argue a criminal law standard in closing argument; (4) permitting the cross-examination of Plaintiffs' expert, Dr. Steven Brown, regarding the length of time that elapsed between the death of Mrs. Nelson and his involvement in the case; and (5) allowing defense counsel to state in opening statement that the defense intended to offer the deposition testimony of an expert for Plaintiffs when defense counsel did not intend to use the deposition testimony. In Plaintiffs' final point on appeal, they claim that (6) the cumulative effect of the trial court errors warrant reversal and remand for a new trial. Because Plaintiffs' first claim regarding the admission of evidence that Dr. DeSantis failed a board certification examination is dispositive, the other alleged errors are not addressed. The judgment of the trial court is reversed, and the case is remanded for a new trial.
In this wrongful death action, Plaintiffs alleged that Dr. Michael Waxman was negligent in failing to timely diagnose and treat a complication that arose from the placement of a femoral arterial catheter in Mrs. Nelson and that Mrs. Nelson died as a result of this negligence. Specifically, Plaintiffs contended that a massive retroperitoneal hematoma (bleed) resulted when the femoral artery was punctured during the placement of the catheter on July 17, 1991; that symptoms of the complication developed over a four day period including an increased heart rate, a drop in blood pressure and hemoglobin, abdominal distension, and flank ecchymosis (bruising); that Dr. Waxman negligently failed to timely recognize the symptoms and diagnose and treat the complication; and that such negligence resulted in the demise of Mrs. Nelson on July 28, 1991, from multi-system organ failure.
At trial, Plaintiffs presented two expert witnesses, Dr. Stephen Brown and Dr. Donald DeSantis. Dr. Brown, a pulmonary and critical care specialist, opined, based on a reasonable degree of medical certainty, that Dr. Waxman breached the standard of care in failing to timely diagnose and treat the retroperitoneal bleed on morning of July 21, 1991. He explained that in the days prior to the 21st, Mrs. Nelson developed symptoms of such complication including an increased pulse rate, a drop in blood pressure and hemoglobin, and abdominal distension. Dr. Brown further explained that on the morning of the 21st, a fourth symptom, flank ecchymosis, developed and that at that point, Dr. Waxman should have ordered an ultrasound or CT scan to diagnose the bleed. Instead, Dr. Waxman waited until after 6:00 p.m. to order the tests and obtain a surgeon consultation. Dr. Brown opined that the delay in recognizing the bleed ultimately resulted in multi-system organ failure and Mrs. Nelson's death.
Dr. DeSantis, a general surgeon, also testified as an expert on behalf of Plaintiffs. He also opined, based on a reasonable degree of medical certainty, that Dr. Waxman breached the standard of care in failing to timely diagnose and treat the retroperitoneal bleed that developed as a result of placement of the femoral arterial catheter. Dr. DeSantis, however, believed that Dr. Waxman should have recognized the complication on July 20, 1991, prior to the development of the bruising on the flanks, which normally develops in the last phase of a bleed problem after the patient has lost several units of blood. Dr. DeSantis explained that a retroperitoneal bleed can be diagnosed prior to the development of flank ecchymosis from symptoms of increased heart rate, drop in blood pressure and hemoglobin, and abdominal distension and that, in this case, Dr. Waxman was negligent in failing to diagnose the complication in Mrs. Nelson's condition on the 20th when such symptoms existed. He concluded that Dr. Waxman's failure to timely diagnose and treat the bleed ultimately lead to Mrs. Nelson's death.
During the cross-examination of Dr. DeSantis, Defendants elicited evidence that the doctor had taken and failed the examination for board certification in critical care. During closing argument, defense counsel argued this evidence to attack Dr. DeSantis's credibility as an expert stating, "And he flunked the critical care boards, which is what is in issue in this case, critical care. He couldn't even pass the critical care examination himself, and he is sitting here in judgment." Following trial, the jury returned a verdict in favor of Defendants, and judgment was entered accordingly. This appeal by Plaintiffs followed.
In Plaintiffs' first point on appeal, they claim that the trial court erred in permitting the cross-examination of Plaintiffs' expert, Dr. Donald DeSantis, regarding his failure of the examination for board certification in critical care. They contend that such evidence was irrelevant and immaterial to Dr. DeSantis's qualifications as an expert witness and served only to confuse and mislead the jury and prejudice Plaintiffs.
Initially, Defendants contend that Plaintiffs did not preserve this issue for appellate review because no objection was made during the cross-examination of Dr. DeSantis. The issue of Dr. DeSantis's failure of the critical care board certification examination was first raised during defense counsel's opening statement. An objection by Plaintiffs at that point was overruled, and the trial court commented, "If it becomes necessary, this is a point that we'll review after trial." Immediately prior to Dr. DeSantis testifying, Plaintiffs raised the issue again to the trial court out of the presence of the jury, and the trial court overruled Plaintiffs' objection. During the cross-examination of Dr. DeSantis, evidence was elicited of the doctor's failure to pass the examination for board certification in critical care. No objection was made by Plaintiffs at that time. Because no objection was made when the question was asked of the witness, Defendants argue the issue was not preserved for appellate review.
Generally, to preserve for appellate review an error regarding the admission of evidence, a timely objection must be made when the evidence is introduced at trial. Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 168 (Mo. App. W.D. 1997). Once a timely and sufficient objection has been made, however, a party need not repeat the objection to preserve the issue for review. Cruce v. Auto-Owners Mut. Ins. Co., 851 S.W.2d 10, 14 (Mo. App. W.D. 1993). In this case, an objection was made to the introduction of evidence that Dr. DeSantis failed the critical care board certification examination immediately before Dr. DeSantis testified. At the time the issue was presented to the trial court, the trial court knew all the facts necessary to determine the issue. Id. Having made a timely and sufficient objection, Plaintiffs were not required to restate the objection during the cross-examination of Dr. DeSantis to preserve the issue for review. Id.
The admissibility of evidence and the extent and scope of cross-examination in a civil action lie within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 869 (Mo. banc 1993); Olinger v. General Heating Cooling Co., 896 S.W.2d 43, 48 (Mo. App. W.D. 1994). Wide latitude is generally afforded the cross-examination of an expert witness to test the qualifications, credibility, skill or knowledge, and value and accuracy of the expert's opinion. Callahan, 863 S.W.2d at 869. The trial court's wide discretion further extends to determination of the extent of cross-examination, and the admissibility of, collateral matters that may affect the skill, reliability, and credibility of the witness. Beis v. Dias, 859 S.W.2d 835, 838 (Mo. App. S.D. 1993); Powell v. Norman Lines, Inc., 674 S.W.2d 191, 196 (Mo. App. E.D. 1984). To be admissible, evidence must be both logically and legally relevant. Olinger, 896 S.W.2d at 48. Evidence is logically relevant if it tends to prove or disprove a fact in issue or corroborates other relevant evidence. Id. Logically relevant evidence, however, is not necessarily admissible. Id. Evidence must also be legally relevant, that is, its probative value must outweigh its prejudical effect. Id. "If evidence pertaining to collateral matters brings into a case new controversial matters which would result in confusion of issues . . . or cause prejudice wholly disproportionate to the value and usefulness of the offered evidence, it should be excluded." Beis, 859 S.W.2d at 838 (quoting Edgell v. Leighty, 825 S.W.2d 325, 327 (Mo. App. 1992)).
Evidence that an expert is or is not board certified in a particular specialty bears on the expert's professional expertise, as does the person's education, training, licensing, and experience, and such evidence is admissible. See Kinser v. Elkadi, 674 S.W.2d 226, 236 (Mo. App. S.D. 1984) (where existence or absence of hospital privileges in locale where physician practices is relevant to his or her professional expertise). Evidence that an expert failed a board certification examination pertaining to a medical discipline applicable to a medical-legal issue being litigated is also logically relevant. Such evidence tends to test the qualifications and credibility of the expert before the trier of fact. The prejudicial effect of evidence that an expert failed a board certification examination, however, greatly outweighs the probative value of the evidence. See Beis v. Dias, 859 S.W.2d 835, 839 (Mo. App. S.D. 1993) (inability to pass a medical board certification examination is irrelevant to issue of whether a physician defendant was negligent in treatment of patient). An expert can fail an examination for board certification in a medical discipline for many reasons unrelated to such person's expertise. To determine the reason for a physician's failure to pass a board certification examination would very probably evoke inquiry into numerous non-relevant issues to the cause being tried. To admit evidence to explain why an expert failed an examination for board certification in a particular specialty invites new controversial matters into a case, such as the reputation of the medical school attended, grades, class rank, and test-taking abilities, resulting in confusion of issues and distraction from the issues being litigated. Significantly, failing to pass such test does not necessarily represent the absence of the requisite knowledge, training or skill to function as a competent expert within the medical discipline; and the test for board certification is not intended to prove, by one's failing to pass it, the absence of the requisite skill, knowledge or training to function within the medical discipline. Although ability of an expert to take a single test does not necessarily reflect the physician's expertise in a particular specialty, a jury of lay people may attribute too much credence to an medical expert's failure to pass a board certification examination and choose to disregard that expert's entire testimony, especially where several experts with similar credentials offer conflicting opinions. The occurrence of one expert's failure to pass a test for board certification could very probably constitute the fact swaying the jury of laymen to disregard that expert's opinion and to accept another's. The admission of such evidence in this case, therefore, was erroneous.
Defendants urge that Beis is distinguishable from this case because the expert physician in that case was also the defendant. In finding that the trial court did not abuse its discretion in excluding evidence of the expert's failure of a board certification exam, however, the Southern District specifically differentiated between a non-party expert and a defendant expert and held that in both cases, evidence that the expert failed a board certification exam was inadmissible in that the prejudicial effect of the evidence far outweighed any probative value the evidence held. Id. at 838-839.
The erroneous admission of evidence requires reversal only where the error materially affected the merits of the action. Kennedy v. Milligan, 915 S.W.2d 784, 787 (Mo. App. W.D. 1996). Error in the admission of evidence is not grounds for reversal if it does not prejudice the complaining party or adversely affect the jury in reaching its verdict. Id. "Evidence is prejudicial if it tends to lead the jury to decide the case on some basis other than the established propositions in the case." Id. In this case, Plaintiffs were unduly prejudiced by the cross-examination of their expert, Dr. DeSantis, regarding his failure to pass the board certification examination in critical care. Although two expert witnesses testified on behalf of Plaintiffs, opining that Dr. Waxman was negligent in failing to timely diagnose and treat the retroperitoneal bleed that resulted from placement of the femoral arterial catheter in Mrs. Nelson and that such negligence lead to her death, the experts' testimony was not similar. Dr. Brown testified that he believed Dr. Waxman was negligent in failing to recognize the complication on the morning of July 21st, after flank ecchymosis developed. Dr. DeSantis, however, testified that he believed Dr. Waxman was negligent in failing to diagnose the bleed a day earlier, prior to the appearance of the bruising. In defense to Dr. Brown's testimony, Dr. Waxman offered evidence that he observed bruising on the morning of the 21st caused by Heparin injections and that bruising as a result of the bleed did not develop until later that day, at which point he ordered a CT scan and a surgeon consultation. Such evidence, however, offered no defense to Dr. DeSantis's opinion that Dr. Waxman should have diagnosed the bleed before any bruising developed. If the jury chose to disregard Dr. DeSantis's testimony solely because he failed the board certification examination in critical care, the outcome of the trial may have been significantly affected to the prejudice of Plaintiffs. The judgment of the trial court is, therefore, reversed, and the case is remanded for a new trial.
All concur.