ARMSTRONG v. HRABAL
2004 WY 39
87 P.3d 1226
Case Number: 03-36
Decided: 04/12/2004
Cite as: 2004 WY 39, 87 P.3d 1226
APRIL TERM, A.D. 2004
IVAN P. ARMSTRONG, an individual; and
JENNIFER ARMSTRONG, an individual,
Appellants(Plaintiffs),
v.
TANYA L. HRABAL, M.D., an individual;
and EMERGENCY MEDICAL PHYSICIANS, P.C.,
a Wyoming professional corporation,
Appellees(Defendants).
Appeal from the District Court of Laramie County
The Honorable Nicholas G. Kalokathis, Judge
Representing Appellants:
Robert G. Pickering of the Pickering Law Firm, P.C., Fort Collins, Colorado; and Henry F. Bailey, Jr. of Bailey, Stock & Harmon, P.C., Cheyenne, Wyoming.
Representing Appellees:
J. Kent Rutledge and James C. Kaste of Lathrop & Rutledge, P.C., Cheyenne, Wyoming.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
VOIGT, Justice, delivered the opinion of the Court; LEHMAN, Justice, filed a dissenting opinion.
VOIGT, Justice.
[1] This is a medical malpractice case in which the appellants dispute several evidentiary rulings of the district court, its denial of their motion for leave to amend their complaint, and its denial of their motion for a new trial. We affirm in part, reverse in part, and remand to the district court.
ISSUES
1. Did the district court err in precluding the appellants retained emergency medicine expert from offering opinions as to the standard of care for treatment?
2. Did the district court err in precluding the appellants only other retained expert from offering opinions as to the standard of care?
3. Did the district court err in precluding the appellants retained expert from offering opinions as to the standard of care for an infectious disease consultant?
4. Did the district court err in precluding evidence of appellee Hrabals prior malpractice claims, the suspension of appellee Hrabals hospital privileges, and other matters affecting her credibility?
5. Did the district court err in denying the appellants motion for leave to file an amended complaint to allege negligent misrepresentation?
FACTS
[2] The appellants in this case are husband and wife, Ivan and Jennifer Armstrong. On February 5, 1999, one of their children was diagnosed at a private medical clinic as suffering from influenza. As a precautionary measure, the Armstrong family members were prescribed an anti-influenza medication. Despite taking a full ten-day course of the medication, Ivan Armstrong (Armstrong) awoke on February 25, 1999, with head and body aches and nausea. He returned to the medical clinic and was prescribed a second dose of the same anti-influenza medication.
[3] On February 28, 1999, Armstrong went to the emergency room of the United Medical Center (UMC) in Cheyenne, complaining of worsening symptoms. A nurse noted he had both an elevated temperature and an elevated heart rate. Armstrong was seen by appellee, Tanya L. Hrabal, M.D., an employee of appellee, Emergency Medical Physicians, P.C. (EMP). Dr. Hrabal obtained Armstrongs medical history and did a physical examination. After considering numerous potential causes of Armstrongs symptoms, including trauma, appendicitis, gallbladder disease, and viral or bacterial infection, Dr. Hrabal concluded that the most likely cause was influenza.
[4] Dr. Hrabal ordered the administration of fluids and medication to reduce Armstrongs dehydration and high temperature. When Armstrong appeared to improve, Dr. Hrabal discharged him from the emergency room with instructions to return if he did not continue to improve, to take large quantities of clear fluids, to take specified medications, and to follow up with his family doctor, Ronald Malm, M.D.
[5] On March 2, 1999, Armstrong went to see Dr. Malm because he was experiencing dizziness, fever, vomiting and diarrhea. Dr. Malm had originally prescribed the anti-influenza medication for the Armstrong family. Dr. Malm diagnosed Armstrong as suffering from gastroenteritis, or stomach flu, and dehydration, and admitted him to the hospital for observation and rehydration. Laboratory test results and x-rays were sufficiently normal so as not to change Dr. Malms diagnosis.
[6] During the afternoon of March 3, 1999, Armstrongs condition dramatically worsened. His attending nurses contacted Dr. Malms on-call partner, Dr. Schiel. After examining Armstrong and seeing the abnormal results of new laboratory tests, Dr. Schiel suspected that Armstrong might be suffering from a bacterial infection, or sepsis. Dr. Schiel ordered blood cultures and requested a consultation from Philip Sharp, M.D., an infectious disease specialist.
[7] Dr. Sharp saw Armstrong on the night of March 3, 1999, and concluded that Armstrong was suffering from sepsis, possibly due to an intestinal infection. Dr. Sharp ordered broad coverage antibiotics and body fluid cultures for Armstrong. The next day, Dr. Sharp noted that the cultures were positive for bacterial infection. He also felt that a heart murmur might be present. Subsequent tests revealed that Armstrong had endocarditis, which is an infection of the heart valve. He underwent surgery to replace his damaged aortic valve with a prosthetic valve. The endorcarditis was caused by bacteria called staphylococcus aureus.
NATURE OF THE CASE
[8] On February 22, 2001, the appellants filed a medical malpractice action against the appellees.1 After engaging in discovery, the appellants sought leave to file an amended complaint to add an allegation of negligent misrepresentation based upon Dr. Hrabals alleged failure to disclose to EMP her involvement in a previous lawsuit in which failure to diagnose a progressive bacterial infection had been alleged. The appellees resisted the motion to amend and moved in limine to preclude admission of evidence of any prior malpractice claims against Dr. Hrabal. The motion to amend was denied and the motion in limine was granted. Those rulings are the basis for the fourth and fifth issues in this appeal.
[9] In their pretrial disclosure of expert witnesses, the appellants named two retained medical experts: Steven M. Tredal, M.D., board certified in emergency medicine, and Gary M. Green, M.D., board certified in internal medicine and infectious disease. It was intended that Dr. Tredal would establish the standard of care for emergency room physicians and that Dr. Green would do the same for emergency room physicians and for infectious disease practice in the emergency room setting. At trial, the district court sustained objections to questions posed by appellants counsel to Dr. Tredal and Dr. Green concerning the standard of care. Those rulings are the basis for the first three issues in this appeal.
STANDARD OF REVIEW
Evidentiary Rulings
[10] Trial court rulings on the admissibility of evidence are reviewed for an abuse of discretion. Clark v. Gale, 966 P.2d 431, 435 (Wyo. 1998). We apply the following standard:
Such decisions are within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. . . . Determining whether the trial court abused its discretion involves the consideration of whether the court could reasonably conclude as it did, and whether it acted in an arbitrary or capricious manner. . . .
A trial courts evidentiary rulings are entitled to considerable deference, and will not be reversed on appeal so long as there exists a legitimate basis for the trial courts ruling. . . .
Dysthe v. State, 2003 WY 20, 16, 63 P.3d 875, 883 (Wyo. 2003) (quoting Lancaster v. State, 2002 WY 45, 11, 43 P.3d 80, 87 (Wyo. 2002)). This standard applies to a trial courts exclusion of expert testimony. Chapman v. State, 2001 WY 25, 8, 18 P.3d 1164, 1169 (Wyo. 2001); Bunting v. Jamieson, 984 P.2d 467, 470 (Wyo. 1999). Expert testimony is admissible if it meets the requirements of W.R.E. 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
LEHMAN, Justice, dissenting.
[60] I respectfully dissent. I agree with the portions of the majoritys opinion that affirm the district courts decisions and find no abuse of discretion. I likewise agree that it was improper for the district court to exclude Dr. Greens standard-of-care testimony. As the majority discussed in 33, there does not appear to be a meaningful distinction between the qualifications of Dr. Green and Dr. Stevens, and both doctors are sufficiently familiar with the standard of care that their testimony would assist the jury in determining the facts at issue. However, I would find that the district courts error was not prejudicial to the appellants and would therefore affirm this case in its entirety.
[61] An error warrants reversal only when it is prejudicial and it affects the appellants substantial rights. Robinson v. Hamblin, 914 P.2d 152, 155 (Wyo. 1996) (quoting Candelaria v. State, 895 P.2d 434, 439-40 (Wyo. 1995)). Generally, to be prejudicial an error must cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process . . . [or possess] a clear capacity to bring about an unjust result. Natural Gas Processing Co. v. Hull, 886 P.2d 1181, 1188 (Wyo. 1994) (citations omitted). In this case, I cannot conclude that the error caused a miscarriage of justice or compromised the fairness of the proceedings, and I consequently do not believe the error requires reversal.
[62] My review of Dr. Stevens testimony shows that, although it was determined at the pretrial hearing that Dr. Stevens could testify about the standard of care, he never expressly testified on that subject. Dr. Stevens testimony, as a whole, centered on causation. He mainly testified as to when he believed Mr. Armstrong contracted the infection and why he believed that. Dr. Stevens conclusions in this area were based on the history of the events from February 28 to March 3. As a result, Dr. Stevens discussed some of the tests performed and the care given to Mr. Armstrong during this time. Because such a discussion is intertwined to some extent with the standard of care, Dr. Stevens testimony certainly danced around the standard of care topic. However, the ultimate point of Dr. Stevens testimony was that of causation. The defendant did not elicit standard of care opinions from Dr. Stevens, and it appears he never expressly offered such opinions.
[63] A review of Dr. Greens testimony shows that although the district court ruled that Dr. Green could not testify about the standard of care, he did continue to testify about his conclusions regarding Mr. Armstrongs infection. Similar to Dr. Stevens, Dr. Green did not expressly offer a standard of care opinion. Nevertheless, Dr. Green did offer extensive testimony. Included in this testimony was his opinion as to whether Mr. Armstrong had the infection on February 28 and why he concluded this. Dr. Greens testimony in this area similarly included elements of the standard of care but to a much greater extent than the testimony of Dr. Stevens. In fact, Dr. Green testified about what questions should have been asked of Mr. Armstrong, about what symptoms should have raised a red flag that there was an infection, that a blood test would have shown abnormalities, that antibiotics would have helped, and that Dr. Hrabal had the golden moment to prevent Mr. Armstrongs infection. While this testimony was not an express opinion on the standard of care either, it was significantly closer to such testimony than that of Dr. Stevens. I would consider this testimony, combined with the testimony of Dr. Tredal, sufficient to counter the testimony offered by Dr. Rosen, the appellees standard of care expert.
[64] Thus, considering the trial as a whole, I cannot conclude that there was a miscarriage of justice or that the appellants were denied a fair trial due to the district courts error. I would therefore hold that the district courts error was not prejudicial to the appellants. As a result, I would affirm this case in its entirety.
FOOTNOTES
1Appellee EMP has conceded that appellee Hrabal was its employee and that she was acting within the course and scope of that employment during all relevant times.
2No issue is presented in this appeal as to how this question was answered.
3See also W.R.E. 611(a), where the trial court is instructed to exercise reasonable control over the mode and order of interrogating witnesses . . . so as to . . . avoid needless consumption of time . . ..
4W.R.E. 403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
5W.R.E. 608(b) states, in pertinent part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
6Navarro de Cosme v. Hospital Pavia, 922 F.2d 926, 932-33 (1st Cir. 1991) (evidence of prior malpractice claims and suspension of license admissible as relevant to expert witness credibility); Hock v. New York Life Ins. Co., 876 P.2d 1242, 1257 (Colo. 1994) (evidence of prior lawsuit against expert witness alleging inadequate testing methods admissible as relevant to witness credibility and accuracy of his testimony); Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn.App. 359, 805 A.2d 130, 141-42 (2002) (evidence that expert witness treated his own wifes wrist fracture with cast admissible where he asserted the standard of care was to use pins); Hayes v. Manchester Memorial Hosp., 38 Conn.App. 471, 661 A.2d 123, 125 (1995) (evidence of similar prior lawsuit against expert witness admissible as relevant to credibility, motive and bias); Underhill v. Stephensen, 756 S.W.2d 459, 461 (Ky. 1988) (evidence of prior lawsuit against expert witness admissible as relevant to bias); Irish v. Gimbel, 1997 ME 50, 691 A.2d 664, 674 (Mass. 1997) (evidence of prior lawsuit admissible to impeach expert witness as to interest or bias); Wischmeyer v. Schanz, 449 Mich. 469, 536 N.W.2d 760, 764-65 (1995) (evidence of prior botched surgeries performed by expert witness admissible to show witness lack of competency); Willoughby v. Wilkins, 65 N.C.App. 626, 310 S.E.2d 90, 97-98 (1983) (evidence of prior lawsuit against expert witness admissible as relevant to bias or interest).
7Beavis involved an injection of allergy medication. We held that, where the standard of care for giving such an injection is the same for all medical professionals, the district court did not abuse its discretion in excluding evidence of the qualifications of the medical assistant who administered the injection. Beavis ex rel. Beavis, 2001 WY 32, 15, 20 P.3d at 514.
8The comment that [w]e dont have Dr. Barkin here to testify[], also indicates the district court had concerns with hearsay testimony as to this extrinsic issue. In its Order Denying Motion for New Trial, the district court emphasized W.R.E. 403 in finding evidence of the prior lawsuit vastly more prejudicial than probative, and in commenting on the danger of a full-blown trial of the Georgia case within the present trial.
9Restatement (Second) of Torts, supra, 551 at 119 reads as follows:
(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
(2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
Restatement (Second) of Torts, supra, 552 at 126-27 reads as follows:
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.
10Restatement (Second) of Torts, supra, 551, cmt. f at 121 reads as follows:
Other relations of trust and confidence [in addition to trustees, agents and corporate directors] include those of the executor of an estate and its beneficiary, a bank and an investing depositor, and those of physician and patient, attorney and client, priest and parishioner, partners, tenants in common and guardian and ward. Members of the same family normally stand in a fiduciary relation to one another, although it is of course obvious that the fact that two men are brothers does not establish relation of trust and confidence when they have become estranged and have not spoken to one another for many years. In addition, certain types of contracts, such as those of suretyship or guaranty, insurance and joint adventure, are recognized as creating in themselves a confidential relation and hence as requiring the utmost good faith and full and fair disclosure of all material facts.
11Restatement (Second) of Torts, supra, 551, cmt. j at 123 reads as follows:
Facts basic to the transaction. The word basic is used in this Clause in the same sense in which it is used in Comment c under 16 of the Restatement of Restitution. A basic fact is a fact that is assumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but not go to its essence. These facts may be material, but they are not basic. If the parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places it there by custom or otherwise the other party has no duty of disclosure. (Compare Restatement, Second, Contracts 296).
Citationizer Summary of Documents Citing This Document
| Cite | Name | Level | |
|---|---|---|---|
| Wyoming Supreme Court Cases | |||
| Cite | Name | Level | |
| 2005 WY 156, 124 P.3d 340, | RONALD MUELLER, as an individual and Director of the Star Valley Ranch Association; and WILLIAM L. DALEY, an individual V. VINCE ZIMMER, an individual and STEVE CRITTENDEN, an individual ; RONALD MUELLER, as an individual and Director of the Star Valley Ranch Association; and WILLIAM L. DALEY, an individual v. STAR VALLEY RANCH ASSOCIATION, a Wyoming non-profit corporation; STAR VALLEY RANCH ASSOCIATION BOARD OF DIRECTORS, in their official capacity; ROGER COX, an individual; and COX, OHMAN & BRANDSTETTER, an Idaho chartered law firm | Cited | |
| 2006 WY 58, 133 P.3d 997, | WILBUR K. WARNICK; DEE J. WARNICK; and WARNICK RANCHES V. RANDALL M. WARNICK | Discussed | |
| 2007 WY 3, 149 P.3d 715, | CHRISTINE WITHERSPOON V. TETON LASER CENTER, LLC, a Wyoming Limited Liability Company; and MAURO LOFARO, M.D. | Discussed | |
| 2007 WY 49, 154 P.3d 341, | RONALD L. SNELLING v. ANDY ROMAN, d/b/a ALPINE EXCAVATION | Discussed | |
| 2007 WY 148, 166 P.3d 1285, | MIKE SCHMID V. PAT SCHMID | Discussed | |
| 2008 WY 18, 177 P.3d 219, | THREE WAY, INC., a Wyoming Corporation V. BURTON ENTERPRISES, INC., a Wyoming Corporation; BURTON ENTERPRISES, INC., a Wyoming Corporation V. THREE WAY, INC., a Wyoming Corporation | Cited | |
| 2008 WY 44, 181 P.3d 84, | RON RETZ, an individual; ERNEST WILLIAMS, individually and as trustee for nieces and nephews of the decedent, William C. Rogers; ANNE BURWELL WILLIAMS, individually and as co-trustee for the nieces and nephews of the decedent, William C. Rogers; FRED CROUTER, individually and as trustee of the Ada Crouter Trust; AND BEVERLY CROUTER, an individual V. WILLIAM SIEBRANDT, an individual; SALVADOR ZARATE, an individual; CHARLES E. GRAVES, in his capacity as Successor Trustee of the Living Trust of WILLIAM C. ROGERS, deceased, and THE UNIVERSITY OF WYOMING FOUNDATION, a Wyoming nonprofit corporation | Cited | |
| 2008 WY 134, 196 P.3d 184, | CITY OF GILLETTE, WYOMING V. HLADKY CONSTRUCTION, INC. | Discussed | |
| 2009 WY 16, 201 P.3d 425, | FOXLEY & CO., a Delaware Corporation V. JOHN R. ELLIS and PATRICIA A. ELLIS | Discussed | |
| 2009 WY 40, 203 P.3d 415, | MARK AND LAURA VOSS V. BEVERLY B. GOODMAN | Discussed | |
| 2009 WY 52, 205 P.3d 195, | DOUGLAS ANTHONY SHORT V. THE STATE OF WYOMING | Discussed | |
| 2011 WY 5, 246 P.3d 283, | DANIEL JOSEPH BURNS v. THE STATE OF WYOMING | Discussed | |
| Cite | Name | Level | |
|---|---|---|---|
| 371 U.S. 178, | FOMAN v. DAVIS | Cited | |
| 1994 CO 95, 876 P.2d 1242, | Hock v. New York Life Ins. Co. | Cited | |
| Wyoming Supreme Court Cases | |||
| Cite | Name | Level | |
| 1977 WY 93, 571 P.2d 241, | Pack v. State | Cited | |
| 1978 WY 45, 580 P.2d 1123, | Chrysler Corp. v. Todorovich | Cited | |
| 1979 WY 131, 601 P.2d 189, | Padilla v. State | Cited | |
| 1981 WY 36, 625 P.2d 747, | Harris v. Grizzle | Cited | |
| 1981 WY 124, 637 P.2d 255, | Siebert v. Fowler | Cited | |
| 1990 WY 41, 790 P.2d 1273, | Deisch v. Jay | Cited | |
| 1991 WY 58, 809 P.2d 796, | Husman, Inc. v. Triton Coal Co. | Cited | |
| 1992 WY 37, 829 P.2d 269, | Rudolph v. State | Cited | |
| 1992 WY 170, 843 P.2d 589, | Contreras By and Through Contreras v. Carbon County School Dist. No. 1 | Cited | |
| 1994 WY 142, 886 P.2d 1181, | Natural Gas Processing Co. v. Hull | Cited | |
| 1995 WY 66, 895 P.2d 434, | Candelaria v. State | Cited | |
| 1997 WY 11, 931 P.2d 229, | Mize v. North Big Horn Hosp. Dist. | Cited | |
| 1996 WY 49, 914 P.2d 152, | Robinson v. Hamblin | Cited | |
| 1998 WY 92, 962 P.2d 165, | Sayer v. Williams | Cited | |
| 1999 WY 105, 984 P.2d 467, | Bunting v. Jamieson | Cited | |
| 1998 WY 127, 966 P.2d 431, | Clark v. Gale | Cited | |
| 1999 WY 137, 988 P.2d 1057, | Oakden v. Roland | Cited | |
| 2001 WY 25, 18 P.3d 1164, | CHAPMAN v. STATE | Discussed | |
| 2001 WY 32, 20 P.3d 508, | BEAVIS v. CAMPBELL COUNTY MEMORIAL HOSPITAL | Discussed at Length | |
| 2002 WY 45, 43 P.3d 80, | LANCASTER v. STATE | Discussed | |
| 2002 WY 64, 45 P.3d 237, | MASINTER v. MARKSTEIN | Cited | |
| 2002 WY 144, 55 P.3d 13, | RINO v. MEAD | Discussed | |
| 2003 WY 20, 63 P.3d 875, | DYSTHE v. STATE | Discussed at Length | |
| 2003 WY 27, 64 P.3d 734, | HEILIG v. WYOMING GAME AND FISH COMMISSION | Discussed | |
| 2003 WY 52, 67 P.3d 1161, | SMYTH v. KAUFMAN, M.D. | Discussed | |
| 2003 WY 92, 74 P.3d 152, | LEE v. LPP MORTGAGE LTD. | Discussed | |
| 2003 WY 102, 75 P.3d 640, | BIRT v. WELLS FARGO HOME MORTGAGE, INC. | Discussed | |
| 2003 WY 123, 76 P.3d 1250, | EKBERG v. SHARP | Cited | |