Opinion
Rehearing Denied Jan. 28, 1975.
Page 760
Litvak, Schwartz & Karsh, P.C., Lawrence Litvak, Denver, for plaintiffs-appellants.
Wagner, Wyers & Vanatta, P.C., Carl Wyers, Denver, for defendant-appellee.
PIERCE, Judge.
Plaintiffs, the wife and children of the deceased Eusebius Sandoval, brought this wrongful death action against defendant physician Daniels alleging that Daniels' negligent medical practices caused decedent's death. Daniels obtained a verdict and judgment and plaintiffs appeal. We affirm the judgment.
Beginning in 1966, decedent experienced intermittent abdominal pain. Physicians in California and in Colorado Springs and Gunnison, Colorado, prescribed a bland diet, tranquilizers, and an antacid. The abdominal pains persisted, particularly after the ingestion of alcoholic beverages. Decedent then visited the Denver Clinic for treatment, and was attended by Daniels.
On June 11, 1969, Daniels performed exploratory surgery on decedent, removed decedent's gall bladder and appendix, did some diagnostic tests, and surgically altered part of decedent's biliary tract. Decedent's condition worsened, and on August 26, 1969, after several other surgical procedures, he died. The immediate causes of death were bronchial pneumonia and peritonitis caused by two perforated ulcers, one in the duodenum and one in the stomach, which some evidence showed were 'stress ulcers' arising after the June 11 surgery. At trial, plaintiffs' theory of recovery appeared to be that Daniels negligently failed to discover a duodenal ulcer present at the time of the exploratory surgery and that, had the ulcer been discovered, a normally skilled surgeon would not have performed some of the procedures which were performed on decedent on June 11, 1969, and which contributed to cause decedent's death.
Plaintiffs' first assertion of error concerns the trial court's admission of answers to a hypothetical question. Defendant's counsel asked three expert medical witnesses a hypothetical question, covering three pages in the transcript, which purported to summarize the evidence adduced at the trial and which sought the witnesses' opinions as to whether Daniels' conduct was consistent with the skill, knowledge and usual care of the average general surgeon in the Denver community. Plaintiffs correctly assert that the hypothetical question required the witnesses to assume one fact which was not supported by the evidence, I.e., that, during the exploratory surgery, Daniels inserted his finger into the gastrointestinal tract and unsuccessfully searched for an ulcer. Inclusion of this assumed fact which was unsupported by any evidence rendered the hypothetical question objectionable. Liber v. Flor, 160 Colo. 7, 415 P.2d 332. However, the manner in which counsel for plaintiffs objected to the hypothetical question was insufficient to raise this issue on appeal as reversible error. The objection was as follows:
'May it please the Court, at this time the plaintiffs will object to the form of the hypothetical question, in that it includes numerous items that are not in evidence before this jury, which is improper for a hypothetical. And, in addition, it excludes many of the factors that are involved in this case, some of which contradict and are contrary to the facts as given in the hypothetical question.'
It is well established that only objections that are 'definite and specific' will be reviewed on appeal. State Insurance Co. v. Du Bois, 7 Colo.App. 214, 44 P. 756. If an objection is made without a sufficient reason therefor being assigned to it, the objection cannot be considered by the reviewing court. King Solomon Tunnel & Development Co. v. Mary Verna Mining Co., 22 Colo.App. 528, 127 P. 129. The purposes of the rule requiring objecting counsel to be reasonably specific are to enable the trial court to rule intelligently on the objection and to afford opposing counsel an opportunity to amend and overcome the defect in his question if possible. Adelmann v. Elk River Lumber Co., 242 Minn. 388, 65 N.W.2d 661. See Ward v. Wilms, 16 Colo. 86, 27 P. 247, and Curr v. Hundley, 3 Colo.App. 54, 31 P. 939. The above-quoted objection, raised against the long and complex hypothetical question, did not fulfill these purposes. In the instant case, it was incumbent upon objecting counsel to specify the objectionable portions of the question. See Pastour v. Kolb Hardware, Inc., 173 N.W.2d 116 (Iowa); Royal Indemnity Co. v. Smith, 456 S.W.2d 218 (Tex.Civ.App.); Willey v. Travelers Indemnity Co., W.Va., 193 S.E.2d 555.
Plaintiffs' reply brief included an affidavit by plaintiffs' counsel which alleged that plaintiffs' counsel had, during a discussion in chambers with opposing counsel and the trial court, specified the particular assumed fact which was not supported by the evidence. This colloquy was not included in the record, and therefore we may not consider it on appeal. Laessig v. May D & F, 157 Colo. 260, 402 P.2d 183; Manzanares v. People, 117 Colo. 466, 190 P.2d 582.
Plaintiffs' second assertion of error involves the admission into evidence of the records of the Denver Clinic and St. Joseph Hospital concerning the decedent. Plaintiffs entered portions of these records into evidence, but objected when defendant sought admission of the entirety of the records, on the sole grounds of irrelevancy and immateriality. Admission of the entirety of the records was proper. Powell v. Brady, 30 Colo.App. 406, 496 P.2d 328. Plaintiffs' theory of recovery required the jury to determine whether Daniels was negligent in failing to discover an ulcer allegedly present at the time of the exploratory surgery. The records for the period prior to June 11 constituted a substantial portion of the information available to Daniels and upon which Daniels partially based his operative decisions, and thus they were material and relevant.
The records after June 11 were material and relevant to Daniels' affirmative defense that the death was caused by the failure of decedent's tissues to heal normally rather than by error or omission by Daniels. The relevancy and materiality of all these records was illustrated by the reliance placed upon them by several of plaintiffs' and defendant's witnesses.
As their third assignment of error, plaintiffs maintain that admission into evidence of certain x-rays of the decedent was improper, because the x-rays did not receive sufficient identification. The x-rays were not identified by the x-ray technician nor by the radiologist who supervised the taking of the x-rays but rather were identified by a physician who had, six months after the taking of the x-rays, performed a gastrointestinal examination of the decedent. Plaintiffs' contention is foreclosed by the pre-trial order, which provided:
'Parties may offer X-rays upon the reasonable identification of A testifying witness without the necessity of producing the technician.' (emphasis added)
The record does not contain any objection by plaintiffs' counsel to the pre-trial order and, therefore, the pre-trial order has the force and effect of a stipulation of the parties. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229; See also Bates & Son, Inc. v. Great Western Railway Co., 158 Colo. 259, 406 P.2d 98. We are aware that the witness relied primarily upon the presence of the decedent's name on the x-rays to identify them, but the record also shows that, in a hearing in the trial court's chambers, he stated that he could utilize his knowledge of x-ray procedures and his own examination of the decedent to verify that the x-rays were those of the decedent. Thus, the witness offered a 'reasonable identification' of the x-rays within the terms of the pre-trial order.
Plaintiffs' final assignment of error concerns the trial court's exclusion from evidence of two photostatic copies of a physician's report. Defendant's Exhibit Number 11 included a report by a Dr. Light. At the top of this report, Dr. Light wrote, '? duodenal ulcer' and, '? pancreatitis.' The first question mark was somewhat more faint than the second question mark, but both were visible. In March of 1971, during a deposition of Dr. Light, the medical report was given to the reporter of the deposition and was photostatically copied. This photostatic copy, marked Plaintiffs' Exhibit P, which was given to plaintiffs' counsel to aid his preparation for trial, showed the second question mark but did not show the first question mark. Another photostatic copy, marked Plaintiffs' Exhibit P--1, showing both question marks, was given by Dr. Light to defendant's counsel at trial. Dr. Light testified that he did not know when Exhibit P--1 was made.
It was not until the cross-examination of Dr. Light by counsel for plaintiffs that the inconsistency between Exhibit P and the other two exhibits was discovered. Dr. Light stated that he had placed the question mark before the words 'duodenal ulcer' when he originally wrote the report and that he did not make Exhibit P and could not explain why Exhibit P omitted the question mark. Plaintiffs' counsel sought to introduce Exhibits P and P--1 to impeach Dr. Light's testimony that he had placed the question mark before the words 'duodenal ulcer' when he wrote the report and, on this appeal, they assert that the exclusion of Exhibits P and P--1 was error. We disagree.
In essence, plaintiffs sought to introduce Exhibit P as a 'prior inconsistent statement,' to impeach Dr. Light's testimony that he was uncertain of the duodenal ulcer diagnosis. A witness' prior inconsistent statement is not admissible as an exhibit unless a foundation has been laid, Duran v. People, 162 Colo. 419, 427 P.2d 318, Norman v. People, 178 Colo. 190, 496 P.2d 1029, and one element of the foundation is proof that the statement was made by the witness rather than by another person. People v. Bugarin, Colo., 507 P.2d 875. Dr. Light denied having made Exhibit P, and plaintiffs did not offer proof relative to the identity of the maker of the photostat or the qualify of the machine on which the photostat was made. Thus, exclusion of the exhibits was proper. Cf. Costello v. Hild, 152 Neb. 1, 40 N.W.2d 228, and Industrial Indemnity Exchange v. Ratcliff, 138 S.W.2d 613 (Tex.Civ.App.).
Judgment affirmed.
COYTE and SMITH, JJ., concur.