Opinion
No. 57902-9-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-2-20134-1, Palmer Robinson and Michael S. Spearman, JJ., entered February 27, 2005 and February 6, 2006.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler, A.C.J., and Baker, J.
Deborah Hanson appeals the jury verdict dismissing her medical malpractice claims alleging the trial court committed error on a number of evidentiary rulings. Hanson failed to preserve many of these issues for appeal. Moreover, on those evidentiary rulings which were preserved, all were within the discretion of the trial court. We affirm.
FACTS
In early January of 2000, Deborah Hanson's primary care doctor referred her to Dr. Jonathan Chinn for headache, neck pain, and an ear and throat infection. Dr. Chinn is a board certified otolaryngologist — an ear, nose, and throat (ENT) specialist. Chinn treated the initial acute infection and evaluated Hanson's thyroid. Hanson was found to have Hashimoto's disease and thyroiditis. A biopsy was performed to rule out cancer. After consultation with the primary physician, Dr. Chinn referred Hanson to an endocrinologist, Dr. Robert Kantor, for further diagnosis and treatment.
Dr. Kantor diagnosed Hanson as having subacute lymphocytic thyroiditis along with hypothyroidism. Dr. Kantor stated that a thyroidectomy was a reasonable choice for Hanson because of the size of the thyroid, and Hanson's pain.
Dr. Kantor placed Hanson on Prednisone. Hanson, however, did not want to continue with this medication because she was hoping to get pregnant through in vitro fertilization and was worried about possible side effects of the drug. Dr. Kantor testified that Prednisone usually clears up the problem within the first two months. Hanson's remaining options were to do nothing or have surgery to remove the thyroid. Hanson quit taking the Prednisone. Dr. Kantor wrote a letter to the primary care physician and Dr. Chinn advising them of Hanson's treatment and the fact that the first medication that was used by Hanson provided no relief. He noted Hanson was responding to the Prednisone, but was still experiencing pain and tenderness and that Hanson would require 6 to 12 months of steroid therapy. Dr. Kantor noted that the thyroiditis could persit even with the treatment of large doses of Prednisone. Because Hanson was concerned about the fertility treatment and its expense, she wanted to resolve the medical condition quickly. Dr. Kantor informed Hanson that surgery removing the thyroid was a standard of care typical for someone like Hanson who presented with severe thyroid inflammation which did not respond to the usual medical treatment. In Dr. Kantor's letter, he stated, "I suggested that subtotal thyroidectomy would be the quickest way to resolve the neck tenderness."
Dr. Kantor spoke of the pros and cons of the surgery and the side effects that Hanson would have to consider. He testified that he spoke to her of the possibility of the total thyroid being removed and that there was a risk that she could later suffer from a low calcium condition. Dr. Kantor further testified that surgery was an appropriate option because Hanson did not respond to the initial intense therapy. Dr. Kantor informed Hanson of the possible risks and complications associated with thyroid surgery including the possible injury or destruction of the parathyroids.
The parathyroid glands are located near the thyroid and regulate the body's calcium.
Hanson returned to see Dr. Chinn. Hanson's thyroid was enlarged and painful. Dr. Chinn also informed Hanson of the risks of the surgery including the injury or destruction of the parathyroids. In Hanson's case, Dr. Chinn testified that such risk was heightened because of the degree of activity of thyroiditis and the enlarged size of the thyroid.
Hanson elected to proceed with the surgery. She signed a consent form in Dr. Chinn's office the day before the surgery. At trial, Hanson claimed the consent form only contained her and Dr. Chinn's signatures and not the phrase "remove thyroid." Hanson claimed that Dr. Chinn said he was only going to take out one side of her thyroid.
Surgery was performed. During surgery, Dr. Chinn used his judgment to perform a total thyroidectomy because of the amount of scarring and inflammation of the thyroid. Dr. Chinn found the parathyroids on the left, and used his surgical skills to keep them in place. Because one of the parathyroids had its blood supply disrupted, he implanted it into the muscle. He looked for the parathyroids on the right but did not see them due to the size of the thyroid and the disease present.
Testimony adduced at trial indicated that most people have four parathyroids and that a person need only have half of a parathyroid to regulate the body's calcium. However, Hanson experienced difficulty following surgery and was readmitted to the hospital. She was placed on a regimen of oral calcium and instructed to return in a week. Hanson has a history of medical ailments which have necessitated her being on pain medication. She currently has a percutaneously inserted central catheter (PICC) which delivers her calcium intravenously.
The jury dismissed Hanson's medical malpractice claims. Hanson appeals.
ANALYSIS
Bifurcation
Hanson contends the trial court's failure to bifurcate the trial resulted in the jury confusing the issue of damages with the issue of negligence resulting in an unfair trial. Before trial, Hanson moved under CR 42(b) to bifurcate the trial. Hanson's motion was based on judicial economy, rather than any direct benefit or prejudice that she perceived could befall her if the trial was not bifurcated. In her motion, Hanson argued that the case was estimated to last more than two weeks if tried on both liability and damages, but would only last about four or five days if tried only on the liability issue.
CR 42(b) provides:
Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross claim, counterclaim, or third party claim, or of any separate issue or of any number of claims, cross claims, counterclaims, third party claims, or issues, always preserving inviolate the right of trial by jury.
Dr. Chinn opposed the motion on the grounds that it would create an undue hardship. The trial was scheduled to commence in two weeks and Dr. Chinn had arranged his schedule and obtained coverage for his patients. The matter was first set for trial in 2005, but was delayed. Dr. Chinn argued the matter had been pending since 2003 and if the issue of liability was not resolved in his favor, he faced additional complications with regard to scheduling his patients. The motion to bifurcate was denied.
On appeal, Hanson contends she was prejudiced by the court's ruling denying her motion to bifurcate because of the evidence presented on damages during the trial. She contends that the combination of these issues somehow clouded the main issue of whether Dr. Chinn was negligent.
This theory was not argued below and hence we will not consider it on appeal except to note that the decision to hold separate trials on the issues of liability and damages is a matter within the sound discretion of the trial judge and unless prejudice is shown, the decision will not be reversed on appeal.
Del Rosario v. Del Rosario, 116 Wn. App. 886, 901-02, 68 P.3d 1130 (2003); Hanson Domingo v. Boeing Employees' Credit Union, 124 Wn. App. 71, 86, 98 P.3d 1222 (2004).
In any event, Hanson contends she was prejudiced by the admission of testimony showing she failed to mitigate the damages, her prior medical conditions and the pain medications she took. Hanson argues that these topics were not relevant in determining whether there was negligence. We disagree. Testimony adduced at trial by various doctors who had either seen Hanson as a patient or reviewed her extensive medical records showed that the calcium Hanson needed could be delivered orally and without the pain if Hanson complied with her doctor's orders and had take her medication. Thus, this information was appropriately admitted because it related to Dr. Chinn's affirmative defense of contributory negligence.
Evidentiary Rulings
Hanson contends the trial court's rulings on a variety of evidentiary issues resulted in presentation of "[o]ne-sided evidence . . . calculated to prejudice the jury."
National Institutes of Health (NIH) Information
The trial court refused to permit Hanson to testify regarding information she received from the NIH website. Hanson was further excluded from testifying as to statements made by an NIH doctor to one of her physicians. The trial court properly excluded this testimony as hearsay.
Hanson also claims that she should have been permitted to introduce NIH instructions which she read on the Internet. She fails to cite any authority to support why they should have been admitted. There is no argument on which this court could decide the issue. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); Hiatt v. Walker Chevrolet Co. 120 Wn.2d 57, 61, 837 P.2d 618 (1992).
Expert Testimony
Washington statutes require a party alleging medical malpractice to show the defendant healthcare provider "failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances." This is generally proved by expert testimony. "It is the scope of a witness's knowledge and not the artificial classification by professional title that governs the threshold question of admissibility of expert medical testimony in a malpractice case."
See RCW 7.70.040 (1).
Eng v. Klein, 127 Wn. App. 171, 110 P.3d 844 (2005) (permitting an infectious disease specialist from out of state to testify regarding standard of care of neurosurgeon).
Hanson makes the following complaints regarding the expert testimony presented:
Dr. Peter Capell's Testimony
Dr. Peter Capell, one of Hanson's endocrinologists, testified he had seen damage to the parathyroid glands where a surgeon complied with the standard of care. Hanson contends Dr. Capell was not qualified to testify because in Dr. Capell's practice he only encountered 15 patients with parathyroid deficiency after thyroid surgery. The argument goes to the weight of the evidence rather than admissibility.
Hanson also argues that Dr. Capell was not a surgeon and should not have been permitted to testify to the standard of care of a surgeon. Dr. Capell noted that damage to the parathyroids was a common risk of thyroid surgery which was known to every physician. Dr. Capell's testimony merely stated what other experts stated, including the defense's expert witness, Dr. Peter Falk. Dr. Falk testified that damage to the parathyroid glands can occur even when a surgeon does everything right. Even if it was error to allow Dr. Capell's testimony, there is no prejudice when the same facts were established by other evidence.
Feldmiller v. Olson, 75 Wn.2d 322, 325, 450 P.2d 816 (1969).
Hanson also objected to Dr. Capell's standard of care testimony on the basis that Dr. Capell was not listed as an expert witness on the witness list regarding the standard of care. As noted by this court in State v. Christian, "'[i]f a specific objection is overruled and the evidence in question is admitted, the appellate court will not reverse on the basis that the evidence should have been excluded under a different rule which could have been, but was not, argued at trial.'"
44 Wn. App. 764, 766, 723 P.2d 508 (1986) (quoting State v. Ferguson, 100 Wn.2d 131, 138, 667 P.2d 68 (1983)).
Further, a practitioner of one school of medicine may testify regarding the practice of another school of medicine. The testimony was properly admitted.
Seybold v. Neu, 105 Wn. App. 666, 678-81, 19 P.3d 1068 (2001) (plastic surgeon allowed to testify as to the standard of care for an orthopedic surgeon specializing in musculoskeletal oncology).
Dr. Edward Benson's Testimony
Dr. Edward Benson, an endocrinologist, reviewed Hanson's medical records on behalf of Dr. Chinn. He testified that his review of those records showed it was Hanson's failure to comply with medical treatment that resulted in her current medical problems. Dr. Benson testified that he had an active practice with patients who have hypoparathryoidism. None of his patients who experienced hypoparathyroidism required intravenous drugs as a long term solution to their problem.
Dr. Benson testified that, from his review of the records, Hanson could maintain her calcium orally. Dr. Benson relied upon hospital records demonstrating that Hanson's calcium level was controlled when she was in the hospital on oral medications.
Hanson also asserts that Dr. Benson's testimony regarding vitamin D and Hanson's ability to control her condition by oral medications was false. Again, Hanson failed to object to the testimony at trial. Further, the credibility of witnesses is within the province of the jury. Dr. Marc Coltrera's Testimony
Burke v. Pepsi-Cola Bottling Co., 64 Wn.2d 244, 246, 391 P.2d 194 (1964).
Dr. Coltrera, an otolaryngologist, testified that Dr. Chinn met the standard of care. Dr. Chinn's surgery report detailed the technique employed on the left side of the thyroid. The report then states: "The right is now approached in a similar fashion." Dr. Coltrera interpreted the report as evidence that Dr. Chinn employed the same techniques on both sides as any competent doctor would. Hanson argues that such testimony was speculative and therefore should be excluded under the reasoning set forth in Roberts v. ARCO. Hanson's reliance upon Roberts is misplaced. In Roberts, an employee discharge case, the trial court excluded an expert economist's testimony regarding loss of future income because it was based upon the assumption that the employee had a lifetime employment contract and the conclusions were speculative. In upholding the trial court, the Roberts court noted that the admissibility of expert opinion evidence is within the courts discretion. Furthermore, no objection was made to this testimony on any ground during the trial. Without such an objection, the error is waived. Dr. Gregory Jurkovich's Testimony
88 Wn.2d 887, 568 P.2d 764 (1977).
State v. Barber, 38 Wn. App. 758, 770, 689 P.2d 1099 (1984).
Dr. Gregory Jurkovich's testimony was admitted without objection. He testified that Dr. Chinn's obtaining Hanson's consent to surgery was reasonable and prudent. Hanson's arguments here are difficult to understand, but seem to focus on the credibility of Dr. Jurkovich's statements rather than the testimony itself. This, of course, is a matter for the trier of fact. Hanson also argues that Dr. Jurkovich should not have been permitted to give his opinion on the standard of care of a sub-total versus a total thyroidectomy because he was a general surgeon and not an ENT.
This seems to contradict Hanson's arguments regarding the ENT doctors where she argues that their testimony should not have been allowed because they were ENT doctors and not surgical doctors.
"The admissibility and scope of an expert's testimony is a matter within the court's discretion." Similarly, the admissibility of cumulative evidence lies within the trial court's discretion. Moreover, the statements Hanson now objects to were not objected to at trial. Nor did Hanson object to Dr. Jurkovich's qualifications as an expert at trial. An expert witness need not be in the exact same field as the defendant in a medical malpractice suit, so long as there is sufficient expertise to demonstrate familiarity with procedure or the medical problem at issue.
Christensen v. Munsen, 123 Wn.2d 234, 867 P.2d 626 (1994).
Seybold, 105 Wn. App. at 683.
Here, the trial court did not abuse its discretion in its evidentiary rulings. Moreover, Hanson cannot point to any prejudice that occurred as a result of these evidentiary rulings.
Jury Instruction
The final issue presented by Hanson is whether the trial court erred in giving jury instruction 6, the "no guarantee/poor result" instruction. At trial, Hanson objected to the instruction on the grounds that the poor medical prong overemphasized the defense case and that the no guarantee prong was inappropriate because there was no suggestion that Dr. Chinn guaranteed his treatment. However, this contradicts Hanson's own testimony where she stated that Dr. Chinn told her there would be no risk from the surgery.
6 Washington Practice: Washington Pattern Jury Instruction: Civil 105.07, at 579 (2005) (WPI).
Jury instruction 6 provides:
An otolaryngologist does not guarantee the results of his care and treatment.
A poor medical result is not, by itself, evidence of negligence.
This instruction was approved in Watson v. Hockett. Moreover, whether or not this type of instruction should be given is within the trial court's discretion. Further, this instruction is based on WPI 105.07. The giving of the "no guarantee/poor result" instruction is not error if the instruction is given in tandem with the standard of care instruction which is what occurred here.
107 Wn.2d 158, 164, 727 P.2d 669 (1986).
Christensen 123 Wn.2d at 248.
Christensen, 123 Wn.2d at 248.
The decision of the trial court is affirmed.
WE CONCUR: