Cody Brumfield v. LeDon Langston
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00009-COA
CODY BRUMFIELD, A MINOR, BY AND THROUGH
HIS MOTHER AND NEXT FRIEND, JOAN
BRUMFIELD
v.
LEDON LANGSTON, M.D.
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
11/12/2002
HON. KEITH STARRETT
PIKE COUNTY CIRCUIT COURT
CARROLL RHODES
JIMMIE B. REYNOLDS
MICHAEL VERDIER CORY
CIVIL - MEDICAL MALPRACTICE
JURY VERDICT IN FAVOR OF DEFENDANT,
LEDON LANGSTON, M.D.
AFFIRMED - 11/30/2004
BEFORE BRIDGES, P.J., CHANDLER AND GRIFFIS, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
On behalf of her son, Cody, Joan Brumfield sued Dr. LeDon Langston for medical malpractice.
A jury sitting before the Pike County Circuit Court returned a verdict for Dr. Langston. Cody filed a
motion for JNOV or, alternatively, for new trial. The circuit court denied Cody’s motions. Aggrieved,
Cody appeals and asserts the following issues:
I.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PREVENTING THE
PLAINTIFF FROM CROSS-EXAMINING THE DEFENDANT IN THE PRESENCE OF
THE JURY ABOUT MID-FORCEPS DELIVERY AND ALTERED MEDICAL RECORDS.
II.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING
CUMULATIVE TESTIMONY FROM EXPERT WITNESSES ON THE ISSUES OF
LIABILITY, CAUSATION, AND INJURY OVER THE PLAINTIFF’S OBJECTIONS.
III.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING PLAINTIFF’S
MOTION FOR A NEW TRIAL.
¶2. Finding no error, we affirm.
FACTS
¶3.
Cody Brumfield was born on May 19, 1989.
Cody’s mother, Joan, experienced labor
complications during delivery. In particular, Cody’s shoulders lodged behind Joan’s pelvis. The medical
community uses the term “shoulder dystocia” to describe that event.1 Dr. LeDon Langston attended
Cody’s delivery. Dr. Langston dislodged Cody’s shoulder from Joan’s pelvis and Cody arrived into this
world without further complication. However, Cody was born with a damaged right arm. At that time,
it was unknown whether Cody’s arm would develop normally. Time would reveal that Cody had a
condition known as Erb’s Palsy. Erb’s Palsy occurs when the cervical nerves in an unborn baby’s shoulder
stretch, resulting in nerve damage. The condition manifests as an underdeveloped arm.
¶4.
In May of 1997, Cody filed his complaint through Joan. In his complaint, Cody alleged that Dr.
Langston negligently caused him to suffer Erb’s Palsy. Dr. Langston denied that he was negligent. The
matter proceeded to trial before the Pike County Circuit Court.
¶5.
At trial, Cody presented three witnesses. Joan testified that when she gave birth to Cody, she had
high blood pressure and diabetes. Further, Dr. Langston used forceps to pull Cody down but did not ask
1
In describing the events and arguments, this Court borrows heavily from the various
witnesses’ testimony.
2
her about a Cesarean delivery, commonly called a C-Section. Cody, a large baby, weighed nine pounds
and fifteen ounces. Cody’s shoulder was black and blue, limp, and “twisted in.” Cody’s arm never got
better, but he was able to use it some.
¶6.
Cody called Dr. Bernadette Sherman to testify as an expert witness. Dr. Sherman consulted
Cody’s medical records and opined on the process of Cody’s delivery. Dr. Sherman noted that Joan was
a large patient. The presence of diabetes and high blood pressure made Joan a high-risk patient. During
labor, Cody “stayed high.” That meant that Cody did not descend down the birth canal at the normal rate.
Dr. Sherman testified that when a baby “stays high” a complication might result.
Dr. Sherman went
on to testify that shoulder dystocia is not common but there are indicators of that risk. According to Dr.
Sherman, diabetics have large babies. That Joan was a diabetic is why Cody’s shoulder stuck. Further,
when a baby does not come down, a physician should perform a C-Section. Dr. Sherman concluded that
Dr. Langston breached the standard of care when he performed a vaginal delivery instead of a C-Section.
¶7.
On cross-examination, Dr. Sherman agreed that shoulder dystocia is always dangerous and cannot
be predicted. Further, she admitted that a C-Section strategy is not a good way to prevent shoulder
dystocia. Finally, Dr. Sherman stated that she had no criticism of how Dr. Langston used forceps. Rather,
her criticism is that they were used when a C-Section was appropriate.
¶8.
Cody ended his case-in-chief after he testified on his own behalf. Dr. Langston presented a motion
for directed verdict, but the circuit court denied that motion. Dr. Langston then argued his case-in-chief.
He testified on his own behalf and followed up with an expert witness.
¶9.
Dr. Langston testified as an expert witness. He testified that there are three types of vaginal
delivery: (1) spontaneous delivery in which the mother needs no assistance; (2) vacuum delivery in which
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suction aids the baby’s descent through the birth canal; and (3) forceps delivery. When a forceps delivery
is necessary, the forceps are applied to the baby’s head so that the mother does not have to push for long
periods.
¶10.
In Joan’s case, Dr. Langston testified that a C-Section was never necessary but he did use forceps
to reduce the second stage of labor. Once Cody’s head delivered, Dr. Langston removed the forceps.
Although a baby usually delivers easily at that point, Cody’s shoulders were larger than his head and
Cody’s shoulders lodged behind Joan’s pelvis. Dr. Langston said that many complications can result once
that happens. To free a baby who experiences this, a physician first applies pressure to the mother’s pubic
bone. When Dr. Langston did, Cody did not dislodge. A physician’s second option is to increase the size
of the birth canal. Likewise, that did not free Cody. Finally, a physician should apply the “McRobert’s
procedure” by which the physician pushes the mother’s knees towards her chest. When Dr. Langston
performed the McRobert’s procedure, Cody dislodged and delivered. Dr. Langston testified that CSection is a last resort. Especially in Joan’s case, due to Joan’s having signed documents by which she
detailed that her faith as a Jehovah’s witness forbid the possibility of her receiving a blood transfusion under
any circumstance, even if necessary to save her life.
¶11.
During cross-examination, Cody’s counsel attempted to question Dr. Langston about some of
Joan’s medical records in which Dr. Langston altered an entry detailing a “mid-forceps” delivery. Dr.
Langston crossed out “mid-forceps” and wrote “low-forceps” instead. When Cody’s counsel attempted
to ask Dr. Langston about the alteration, Dr. Langston’s attorney objected and the trial court excused the
jury. After some debate, the court determined that according to Cody’s case-in-chief, the issue was
whether Dr. Langston was negligent in performing a vaginal delivery instead of a C-Section.
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¶12.
Dr. Langston’s attorney argued that the line of questioning at issue inferred that Dr. Langston used
forceps to attempt to pull Cody free after Cody’s shoulders became trapped. Further, the facts did not
suggest that set of events. Rather, Dr. Langston pulled Cody down the birth canal and stopped after
Cody’s head delivered. It was at that point that Cody’s shoulders lodged behind Joan’s pelvis. The circuit
court concluded that because Cody had presented his case-in-chief and failed to assert that Dr. Langston
was negligent in the manner he applied the forceps, it was improper to assert that such was the case during
Dr. Langston’s case-in-chief.
¶13.
After Dr. Langston concluded his testimony, he called Dr. James Martin as an expert witness. Dr.
Martin testified that it was appropriate to deliver Cody vaginally. At that point, Cody’s counsel objected
and argued that Dr. Martin’s testimony was cumulative and, accordingly, improper. The circuit court
overruled the objection.
¶14.
Dr. Martin went on to testify that predicting shoulder dystocia is impossible. However, he opined
that Dr. Langston managed it appropriately and was not negligent. Finally, Dr. Martin testified that under
the circumstances a C-Section would have been improper.
¶15.
Following closing arguments, the jury deliberated for twenty-eight minutes and returned a verdict
for Dr. Langston. Cody filed post-trial motions for JNOV, for new trial, and to amend the judgment. The
circuit court overruled Cody’s motions. Cody brings his appeal before this Court and seeks resolution of
three issues.
ANALYSIS
I.
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY PREVENTING THE
PLAINTIFF FROM CROSS-EXAMINING THE DEFENDANT IN THE PRESENCE OF
THE JURY ABOUT MID-FORCEPS DELIVERY AND ALTERED MEDICAL RECORDS?
5
¶16.
“The standard of review regarding the admission or exclusion of evidence is abuse of discretion.”
Thompson Machinery Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss. 1997). In his first
assignment of error, Cody argues that the trial court abused its discretion to admit or exclude evidence by
preventing him from cross-examining Dr. Langston in the jury’s presence regarding mid-forceps delivery
and altered medical records. The theory of Cody’s argument is that Dr. Langston used forceps to deliver
a large baby that had not sufficiently reached a proper point in descending the birth canal. Further, because
Cody was still “high” at delivery, Dr. Langston negligently used a mid-forceps procedure to deliver Cody.
Cody maintains that the trial court should have allowed cross-examination on these matters in the jury’s
presence. Cody also argues that although he attempted to impeach Dr. Langston’s testimony by way of
altered hospital records, the trial court chose not to allow it.
¶17.
The trial court correctly recognized that the line of questioning was irrelevant. It was irrelevant
because Cody’s argument, according to the expert testimony of Dr. Sherman, was whether Dr. Langston
should have delivered Cody by C-Section rather than some variation of vaginal delivery. The trial court
correctly recognized that Dr. Sherman specifically testified that she had no criticism of the techniques used
during delivery, including the application of forceps.
¶18.
Even if the excluded testimony was admitted the testimony would not have changed the outcome
of the trial. The excluded testimony involved a correction of Dr. Langston’s transcript of his dictated
delivery notes. The correction was to indicate that the delivery was low-forceps rather than mid-forceps.
Moreover, during Cody’s case-in-chief, no one testified that it was improper or fraudulent for Dr. Langston
to correct the medical record. No one testified that delivery was by any other means than low-forceps.
Even if the jury was to somehow conclude that the delivery was mid-forceps, no one testified that such
delivery was a breach of the standard of care. Accordingly, this assignment of error is without merit.
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II.
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY ALLOWING
CUMULATIVE TESTIMONY FROM EXPERT WITNESSES ON THE ISSUES OF
LIABILITY, CAUSATION, AND INJURY OVER THE PLAINTIFF’S OBJECTIONS?
¶19.
Cody’s theory behind this assignment of error is that because Dr. Langston testified, as an expert
witness, that he was not negligent, Dr. Martin’s expert testimony to the same effect should be excluded as
cumulative. He cites the proposition that “[r]elevant evidence may be excluded if its probative value is
substantially outweighed by the . . . needless presentation of cumulative evidence.” M.R.E. 403; Evans
v. State, 725 So.2d 613 (¶233) (Miss. 1997).
¶20.
A trial judge has a great deal of discretion as to the relevancy and admissibility of evidence. Id.
at (¶232). Unless the trial judge abused his discretion and caused Cody prejudice, this Court will not
reverse the judge’s ruling. Id. (quoting Fisher v. State, 690 So.2d 268, 274 (Miss. 1996)).
¶21.
Rule 403 allows a trial judge to use his discretion to exclude evidence if the evidence causes
needless presentation of cumulative evidence. The subject testimony did not result in the needless
presentation of cumulative evidence. Without question, Dr. Langston had the right to testify in his defense.
The fact that he is able to testify as an occurrence witness does not change the fact that he is also qualified
to testify as an expert witness. When counsel tendered Dr. Langston as an expert, Cody did not object.
If Cody wanted to limit Dr. Langston to occurrence testimony, the proper method would have been to
object to Dr. Langston offering expert testimony. The fact that a defendant who is able to testify as an
expert offers the same testimony as his separate expert witness does not render the testimonial evidence
needlessly cumulative. The jury needed to determine whether Dr. Langston was negligent. If they thought
that Dr. Langston was biased in his testimony, Dr. Martin’s testimony would aid in the jury’s resolution of
the issue. If Cody wanted to prevent two experts from testifying that Dr. Langston was not negligent, an
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objection based on cumulative evidence was not the way to accomplish that goal. Accordingly, this issue
lacks merit.
III.
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY DENYING PLAINTIFF’S
MOTION FOR A NEW TRIAL?
¶22.
In reviewing a trial court’s decision whether to grant a motion for new trial, this Court must accept
as true the evidence that supports the verdict and will reverse only when convinced that the circuit court
has abused its discretion in failing to grant a new trial. Watson v. State, 848 So.2d 203 (¶34)
(Miss.Ct.App.2003). The jury verdict should stand unless the evidence, as a whole, shows that no
reasonable hypothetical juror could have found that Dr. Langston was not negligent. Starcher v. Byrne,
687 So.2d 737, 739 (Miss. 1997). This Court must resolve all conflicts of evidence and determine all
reasonable inferences from the testimony in Dr. Langston’s favor. Thompson, 687 So.2d at 151-52.
¶23.
Dr. Langston’s testimony, as well as Dr. Martin’s was that Dr. Langston was not negligent.
Moreover, portions of Dr. Sherman’s testimony suggested that Dr. Langston was not negligent in delivering
Cody. Accordingly, a reasonable hypothetical juror heard sufficient evidence to determine that Dr.
Langston was not negligent. As such, the trial court did not err by denying Cody’s motion for new trial.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, P.J., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.
IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J.
IRVING, J., DISSENTING:
¶25.
The majority finds that the trial court did not err in not allowing Cody Bromfield's attorney to cross-
examine Dr. Ledon Langston concerning Dr. Langston's use of forceps during the delivery of Cody, and
8
concerning the change or correction by Dr. Langston of his delivery notes. The phrase "mid-forceps"
delivery was stricken or lined through, and the phrase "lower forceps" delivery was inserted in its place.
The majority finds no error because in the view of the majority, "the line of questioning [concerning use of
the forceps] was irrelevant" since the issue was "whether Dr. Langston should have delivered Cody by Csection rather than some variation of vaginal delivery." The majority also finds that no error occurred in not
allowing cross-examination on the change and/or correction of Dr. Langston's delivery notes because no
one testified that delivery was by any means other than lower forceps delivery.
¶26.
While it is true that Cody's expert testified that Dr. Langston should have performed a C-section
rather than allowing a vaginal delivery, Cody's expert also testified that Dr. Langston should not have used
forceps, as the use of the forceps to pull the baby down could cause Erb Palsy when shoulder dystocia
occurs during delivery. Therefore, I respectfully dissent.
¶27.
To properly understand why it was prejudicial error not to allow cross-examination of Dr. Langston
on his use of forceps and the correction and/or change in his delivery notes, it is necessary that I quote
extensively from the record, beginning with a portion of the testimony of Cody's expert, Dr. Bernadette
Sherman. Dr. Sherman testified as follows:
Q.
Could you tell the jury how shoulder dystocia could occur.
A.
When the baby descends into the pelvis and it takes time, like it took over three
hours with the baby being high, but it takes time, then as the baby comes down to
the vaginal floor the head will come out, and it can be a natural delivery, even
though when we talk about shoulder dystocia it's always -- not always, but usually,
sometimes an instrument delivery where the doctors uses forceps or vacuum
suction, it's an increased risk of shoulder dystocia. So, the head comes out and
then one of the shoulders is impacted against the anterior frontal pelvic bone. So,
if the doctor keeps pulling down then the nerve will be damaged. Some Erb's
Palsies resolve, but if it's a bad damage then the nerve will be permanently
damaged just from pulling the head trying to get the baby delivered, and then you
realize that the baby is not coming because the shoulder is impacted and then you
9
do the McRobert's procedure, super pubic pressure. There is even a procedure
where you can push the baby's head back in the vagina and then do a C-Section.
****
Q.
A.
Yes, it was.
Q.
And the procedures Dr. Langston used during this vaginal delivery were all
appropriately performed?
A.
Exactly, except with the forceps.
Q.
And your criticism of the forceps is that they were used; not that he didn't use them
correctly?
A.
Exactly.
Q.
And you used, I believe, in your shoulder dystocia case that you were sued on,
you used the vacuum, you didn't use forceps, and you still had ---
A.
- - - I used forceps and the vacuum.
Q.
So you used both?
A.
Right.
Q.
And you still had problems?
A.
¶28.
Dr. Sherman, you agree, don't you, that once the shoulder dystocia occurred in
this case, once this complication was identified, it was appropriately managed by
Dr. Langston?
Exactly. Should have been a C-Section.
During the presentation of his defense, the following exchange occurred between Dr. Langston and
his attorney:
Q.
Doctor, in you opinion, was your use of forceps in this case, in this delivery,
appropriate?
A.
Yes, it was.
10
Q.
A.
¶29.
In your opinion did you do anything inappropriately or negligently that caused this
child's problems?
No, I did not.
During cross-examination of Dr. Langston by Cody's attorney, the following occurred:
Q.
Okay. Now, you were asked to read from Williams’ Obstetrics, the learned
treatise.
A.
Yes.
Q.
And I have some pages from the 18th Edition of William’s Obstetrics, and I want
you to read these.
A.
Okay.
Q.
The 18th Edition starting on Page 427, they’re talking about pre-requisites for
application of forceps. What is the first pre-requisite that they list?
A.
The head must be engaged, preferably deeply engaged.
Q.
Okay. What does the William’s textbook say about delivery by use of high
forceps?
A.
Says it should not be done.
Q.
What about even after engagement?
A.
Even after engagement the higher the station of the baby, the fetal head, the more
difficult —
Q.
— Okay. So high forces delivery shouldn’t be done?
A.
Correct.
Q.
What – could you read this highlighted portion right here for me.
A.
Therefore, forceps should not be used until the station of the head is low enough
to ensure a non-traumatic operative procedure. The same generalization applies
to forceps for the fetal distress when the head is not close to the perineal floor.
Granted that the fetal heart rate in such a case may suggest that the baby is in
jeopardy, it may still be judicious to allow more time for the head to distend rather
11
than super-impose a trauma of a difficult mid-force delivery operation on an
already depressed infant.
Q.
So, instead of performing the mid-forceps you ought to give more time to allow the
baby’s head to come down?
A.
That’s possible, yes.
Q.
According to William’s?
A.
Yes.
Q.
Now, on Exhibit —
A.
— We’re talking about mid-force delivery.
Q.
I know.
A.
Okay.
Q.
Exhibit P-2 talks about mid-forceps delivery. Page 16, which is your notes.
A.
Correct.
Q.
What date did you dictate those notes?
BY MR. CORY: May we approach the bench, Your Honor.
BY THE COURT: Yes, sir.
¶30.
After the bench conference, and further testimony outside the presence of the jury, Cody's attorney
was not allowed to question Dr. Langston further about Dr. Langston's use of forceps or the change in Dr.
Langston's delivery notes to reflect that "lower forceps" delivery as opposed to "mid-forceps" was utilized.
¶31.
Even after denying Cody's counsel the right to cross-examine Dr. Langston about Dr. Langston's
use of forceps, the court allowed the testimony of Dr. Langston's expert, Dr. James Martin, who testified
as follows:
12
Q.
A.
¶32.
Do you have an opinion in this case about whether the use of forceps by Dr. Langston was
appropriate?
It was completely appropriate. If he had chosen to use vacuum instead of forceps it would
have also been appropriate, given the circumstances that she was in, where she had
descended well during the second stage, she brought the baby's head well down. . . .
On these facts, I believe the trial court clearly abused its discretion in not allowing Cody's counsel
to cross-examine Dr. Langston about Dr. Langston's use of forceps and the change made in Dr. Langston's
delivery notes. Such error resulted in prejudice to Cody.
¶33.
As previously noted, while Cody did contend that Dr. Langston was negligent for not delivering
him by C-section, that position does not in any way make irrelevant Cody's counsel's cross-examination
questions regarding Dr. Langston's use of forceps during the vaginal delivery. First, Dr. Langston himself
testified during direct examination that his use of forceps was appropriate. If for no other reason, Cody's
attorney should have been allowed thorough cross-examination to challenge that assertion by Dr. Langston.
Second, Cody's expert clearly testified that forceps should not have been used because there should have
been a C-section rather than a vaginal delivery. Third, Dr. Langston's own counsel questioned Dr.
Langston regarding information contained in the same treatise that Cody's counsel was using when Dr.
Langston's counsel objected that the line of questions was irrelevant.
¶34.
My reading of the record indicates that Cody's theory of the case was that Dr. Langston was
negligent in not opting for a C-section in the very beginning of the delivery process and that by not doing
so resulted in his having later to use forceps to assist in extricating Cody. Cody's expert testified that,
because Joan Brumfield, Cody's mother, was a diabetic and extremely large, Dr. Langston was on notice
that she was likely to have a large baby. The expert also testified that Cody's failure to properly descend
down the birth canal was indicative of something being wrong. The expert testified that Cody stayed at the
13
minus one station over three hours when "the standard of care is they have to come down within an hour
and a half."
¶35.
On these facts, clearly Cody's counsel was entitled to cross-examine Dr. Langston about Dr.
Langston's use of forceps during a vaginal delivery that, according to Cody's proof, should never have
been. If forceps should not have been used because a C-section was warranted, using them when the Csection was not done does not, by any means, make their use appropriate. And if forceps are used, as
was the case here, that moves the justification for their use to the fore for cross-examination purposes.
Since Dr. Langston contended that his use of forceps was proper, directly contradicting Cody's contention
that they never should have been used, I fail to see how cross-examination about their use was irrelevant.
¶36.
Additionally, I find that the trial court also committed prejudicial error in not allowing Cody's
counsel to question Dr. Langston about Dr. Langston's lining through the word "mid-forceps" delivery and
inserting the phrase "lower forceps" delivery in its place. While Dr. Langston's testimony that the wording
"mid-forceps" was a typographical error or one occurring between the dictation and the translation, Cody
should have been allowed to vigorously cross-examine him on that point because the location of the baby
in the birth canal drives the decision as to whether and when forceps can be properly used. The term "midforceps" delivery indicates that forceps were used when the baby was at a point further up the birth canal
whereas the term "lower forceps" delivery indicates that forceps were used when the baby had descended
to a point further down the birth canal. The risks of injury to the baby are commensurate with the baby's
location when the forceps are used, that is, the higher the baby, the greater the risks, the lower the baby,
the lower the risks. Whether the lining through of the word "mid-forceps" was a typographical, dictation-
14
to- translation error as Dr. Langston contended, or an attempt to recast the facts in a light more favorable
to the doctor, was a proper inquiry on cross-examination.
¶37.
The majorityfinds no merit in Cody's argument that his attorney should have been allowed to cross-
examine Dr. Langston about the change in Dr. Langston's delivery notes because, according to the
majority, no one testified that delivery was by any other means than lower forceps. It seems to me that the
majority fails to appreciate the significance of what occurred. Even in the absence of any testimony that
delivery was by mid-forceps, the fact Dr. Langston's notes initially indicated mid-forceps delivery is reason
enough to allow vigorous cross-examination on that point. But more importantly, since the notes were
changed in a way that supported Dr. Langston's contention at trial — that his use of the forceps was
appropriate — the reason for the change became a proper area to explore on cross-examination. Having
said this, I am in no way suggesting that Dr. Langston's explanation was anything less then truthful. I just
believe that cross-examination of the explanation was proper.
¶38.
For the reasons presented, I respectfully dissent. I would reverse and remand for a new trial with
instructions to allow full and complete cross-examination on the subject of Dr. Langston's use of forceps
and the change or correction of his delivery notes. I do not believe that the failure of the trial court to allow
such examination on these issues can be dismissed as harmless error.
KING, C.J., JOIN THIS SEPARATE OPINION.
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