Rooney v. MCHV

ROONEY_V_MCHV.93-322; 162 Vt. 513; 649 A.2d 756

[Filed:  22-Jul-1994]

[Motion for Reargument Denied 6-Sep-1994]


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-322


 John Rooney, Individually and                Supreme Court
 as Administrator of the Estate
 of Margaret Orr Rooney
                                              On Appeal from
      v.                                      Chittenden Superior Court

 Medical Center Hospital of Vermont,          February Term, 1994
 Inc., Anesthesia Associates of
 Burlington, Inc., and E.A. Kristensen,
 M.D.


 Matthew I. Katz, J.

 Alan F. Sylvester, Geoffrey M. FitzGerald and Margaret A. Mangan of
    Sylvester & Maley, Inc., Burlington, for plaintiff-appellant

 Ritchie E. Berger and Philip C. Woodward of Dinse, Erdmann & Clapp,
    Burlington, for defendant-appellee Medical Center Hospital

 Robert D. Rachlin, Gary H. Barnes and Coddy Marx of Downs Rachlin & Martin,
    Burlington, for defendants-appellees Anesthesia Associates and Kristensen



 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
           Specially Assigned


      MORSE, J.   In this medical malpractice action, plaintiff John Rooney
 brought suit against defendants Dr. E. A. Kristensen, Anesthesia Associates,
 and the Medical Center Hospital of Vermont, Inc. (MCHV) for the wrongful
 death of his wife, Margaret Rooney, who was survived by plaintiff and their
 two children, then aged 16 months and 5 days.  Plaintiff claimed that
 defendants were negligent in the care provided to his wife, resulting in her
 death.  The jury returned a defendants' verdict.  On appeal, plaintiff's

 

 primary assertion is that the court's instruction on the standard of care
 improperly informed the jury in effect that the defendant anesthesiologist
 was not liable if she did her best under the circumstances.  We agree that
 the standard of care instruction with regard to the performance of Dr.
 Kristensen was error, requiring reversal and a remand for a new trial as to
 her and her employer, Anesthesia Associates.  We affirm as to defendant
 MCHV.
      On January 11, 1988, Mrs. Rooney was admitted to MCHV for an emergency
 cesarean section.  Dr. Kristensen was the attending obstetrical
 anesthesiologist for the surgery.  After a spinal anesthetic failed to
 relieve Mrs. Rooney's pain, Dr. Kristensen administered general anesthesia,
 which contained a paralytic agent that prevented Mrs. Rooney from breathing
 on her own.  Dr. Kristensen was also responsible for delivering oxygen to
 Mrs. Rooney during the operation.  The normal procedure for doing so, called
 intubation, is accomplished by introducing oxygen under pressure into the
 patient's lungs by a tube through the patient's mouth.
      After administration of the general anesthesia, Mrs. Rooney was unable
 to be intubated.  Apparently, she had suffered a rare allergic reaction to
 one of the anesthetic agents, which caused her tongue and upper airway to
 swell.  As Mrs. Rooney's oxygen saturation and pulse fell to life-
 threatening levels, Dr. Kristensen and Dr. Brackett, a resident physician,
 continued to attempt intubation.  They also tried, unsuccessfully, to
 ventilate Mrs. Rooney by forcing air down her windpipe into her lungs using
 a bag and mask.
      A short time after the breathing emergency began, Dr. Kristensen
 directed the obstetricians on hand to remove the baby in order to save the

 

 baby's life and to facilitate resuscitation.   The delivery took about one
 minute and Dr. Kristensen instructed an attending nurse to page for surgical
 help and a tracheostomy tray immediately after the baby was born.
      Dr. Kristensen rejected performing a surgical cricothyrotomy -- use of
 a scalpel to cut a passage through the neck to permit placement of a tube
 into the trachea --  because she did not feel comfortable doing it after not
 having performed surgery for twelve years.  Instead, Dr. Kristensen used a
 medical "Nu-Trake" device in an attempt to obtain an airway.  Use of the
 device, which is designed for emergency use to create an airway by placing a
 dilator through the trachea, was also unsuccessful.  The procedure produced
 profusive bleeding, later determined to have been caused by an anatomical
 anomaly of Mrs. Rooney's carotid artery, which crossed over the front of her
 trachea instead of down the side of it.
      Dr. Kristensen then attempted to obtain an airway by using a
 pressurized needle and catheter device called a transtracheal jet ventilator
 (TTJV).  This procedure proved futile because, as explained by defendants'
 expert witnesses, Dr. Jonathan Benumof and Dr. David Chestnut, the Nu-Trake
 device had created a larger hole in the tissue than necessary for the TTJV,
 allowing oxygen to enter surrounding tissue and swell Mrs. Rooney's neck.
      When the surgeons arrived, they successfully performed a tracheostomy.
 This procedure requires an incision through the trachea lower down on the
 neck than the surgical cricothyrotomy and is more complicated than the
 cricothyrotomy.  Oxygen was then introduced to Mrs. Rooney; however, by that
 time, Mrs. Rooney had suffered permanent and irreversible brain damage.  She
 died five days later.

 

      At trial, plaintiff advanced several factual theories of liability
 against Dr. Kristensen.  Plaintiff asserted that Dr. Kristensen had not
 formulated an adequate plan to deal with the "can't intubate/can't
 ventilate" emergency.  Plaintiff also maintained that Dr. Kristensen should
 have paged surgeons sooner and not hesitated to use other alternatives once
 initial efforts to intubate and ventilate had failed.  Additionally,
 plaintiff alleged that Dr. Kristensen should have had the skill and
 knowledge to perform a surgical cricothryrotomy or else performed a
 transtracheal jet ventilation instead of attempting the Nu-Trake device.  As
 argued by plaintiff, the Nu-Trake device was not an appropriate option under
 the circumstances, and because Dr. Kristensen had improperly used the Nu-
 Trake device, the subsequent TTJV attempt was ineffective.  Plaintiff's
 action against Anesthesia Associates was based upon vicarious liability as
 the employer of Dr. Kristensen.
      In defense, Dr. Kristensen argued that an extremely rare allergic
 reaction to the general anesthesia, in conjunction with Mrs. Rooney's
 aberrant carotid artery, caused the tragedy.  She maintained that her plan
 was appropriate and that she did everything she reasonably could, moving
 from one step to the next, i.e., intubation, mask ventilation, calling for
 surgeons, trying the Nu-Trake device, and further attempts at ventilation.
 She claimed that the Nu-Trake device was a reasonable choice in early 1988,
 and that she properly used it.  Finally, she argued that had she attempted
 the surgical cricothyrotomy, she unavoidably would have severed Mrs.
 Rooney's aberrant carotid artery, causing her to bleed to death.
      Plaintiff's theory of liability against MCHV was based upon the alleged
 unreasonable delay in getting surgeons to the operating room and in making a

 

 tracheostomy tray available.  MCHV's defense was that hospital personnel
 responded adequately to the crisis and that a tracheostomy tray was readily
 produced and duplicate instruments were already in the operating room.  At
 trial, the focus of the evidence and fault issues centered largely on the
 actions of Dr. Kristensen.
      Plaintiff argues on appeal that in addition to error in the trial
 court's standard-of-care jury instruction, there was error in the court's
 proximate cause instructions and in its instructions to the jury on
 deposition testimony.
                                     I.
      At the outset, we address a point raised by the hospital concerning
 plaintiff's requisite showing on appeal.  Defendant MCHV claims that
 plaintiff must show prejudicial error with respect to both the standard of
 care and proximate cause instructions to prevail on appeal.  Plaintiff had
 requested a general verdict, while the hospital had requested that the jury
 decide separately, and indicate in writing, the elements of the breach of
 care and proximate cause.  Defendants Dr. Kristensen and Anesthesia
 Associates did not request a form of the verdict one way or the other.  The
 trial court submitted a general verdict form to the jury, which simply
 stated: "We the jury ____ do ____ do not find [specific party] to have been
 negligent, which negligence proximately caused the death of Margaret
 Rooney."
       MCHV argues that the jury may have returned a verdict favorable to it
 on either the standard of care or proximate cause elements of medical
 malpractice.  MCHV points out that because plaintiff requested a general
 verdict, this Court is now unable to determine the precise reasons the jury

 

 returned a defendants' verdict.  Relying on Contractor's Crane Service, Inc.
 v. Vermont Whey Abatement Authority, 147 Vt. 441, 446, 519 A.2d 1166, 1171
 (1986) (in civil case involving multiple independent theories of liability,
 general verdict in favor of plaintiff may not be reversed unless prejudicial
 error is shown in all theories of recovery), MCHV urges us to apply an
 analogous rule to this case and affirm the general verdict unless plaintiff
 demonstrates reversible error on both elements of the negligence charge.
      We do not reach MCHV's argument because, as addressed later in this
 opinion, we find no error with respect to either the standard of care or
 proximate cause elements pertaining to MCHV.  We note that defendants Dr.
 Kristensen and Anesthesia Associates did not raise this issue on appeal,
 and, indeed, they did not preserve this issue below.
                                     II.
      The challenged standard-of-care instruction applicable to Dr.
 Kristensen stated in full:

             Now, I'll [talk] for a minute about the law governing
           the claim against Dr. Kristensen.  Plaintiff must prove
           the degree of knowledge or skill possessed or care
           ordinarily exercised by a reasonably skillful, careful
           and prudent anesthesiologist engaged in a similar
           practice under the same or similar circumstances
           whether or not within the state of Vermont.

             He must next prove that Dr. Kristensen either lacked
           this degree of knowledge or skill, or failed to exercise
           this degree of care.

             And, finally, that as a proximate result of this lack
           of knowledge or skill or care, Margaret Rooney suffered
           injuries that would not otherwise have occurred.

             By undertaking to perform a medical service, a
           physician does not, nor does the law require her to,
           guarantee a good result.  The physician is liable only
           for negligence, failure to bring to bear the level of
           knowledge or skill or care I just described.

 

             The law recognizes that there are differences in the
           abilities of doctors, just as there are in the abilities
           of people engaged in other activities.  To practice the
           profession of medicine, a physician is not required to
           be possessed of the extraordinary knowledge and ability
           that belongs to the few practitioners of rare
           endowments.  But the physician is required to keep
           abreast of new techniques and knowledge and to practice
           in accordance with the approved methods and means of
           treatment in general use in the field of anesthesiology.

             In performing a medical service, a physician is
           obligated to use her best judgment and to use reasonable
           care in the exercise of her knowledge and ability.  The
           rule requiring use of her best judgment does not make
           her liable for a mere error of judgment, provided she
           exercises reasonable judgment in bringing to bear the
           level of knowledge, skill and care previously described.
           The rule of reasonable care does not require the
           exercise of the highest possible degree of care, it
           requires only that she exercise that degree of care
           that a reasonably prudent anesthesiologist would
           exercise under the same circumstances.

             Negligence is not shown simply because in hindsight
           some other course of action would have been better or
           more effective.

 (emphasis added).  The underlined portions are the principal focus of
 plaintiff's claims of error.
      The critical issue is whether these instructions, read "as a whole,"
 meet our oft-stated standard of review by "'"breath[ing] the true spirit and
 doctrine of the law."'"  Turgeon v. Schneider, 150 Vt. 268, 276, 553 A.2d 548, 553 (1988) (quoting Choiniere v. Sulikowski, 126 Vt. 274, 277, 229 A.2d 305, 307 (1967) (quoting In re Moxley's Will, 103 Vt. 100, 114, 152 A. 713,
 718 (1930))).  We conclude that the standard-of-care instruction under
 review did not.
                                     A.
        The standard of care applicable in this case is set out by statute:

           In a malpractice action . . ., the plaintiff shall have
           the burden of proving:

 

     (1) the degree of knowledge or skill possessed or the
           degree of care ordinarily exercised by a reasonably
           skillful, careful, and prudent health care professional
           engaged in a similar practice under the same or similar
           circumstances whether or not within the state of
           Vermont.
 12 V.S.A. { 1908(1) (emphasis added).
      Plaintiff attacks the "best judgment" and "error in judgment" language
 used by the trial court here as inconsistent with this statutorily imposed
 objective standard. The first sentence of the instruction specifically under
 attack asserts that Dr. Kristensen should have used "her best judgment" and
 reasonable care in the exercise of "her knowledge and ability."  A plain
 reading of this sentence, in light of the standard of care expressed in {
 1908(1), leads to the conclusion that even if Dr. Kristensen's "knowledge
 and ability" did not measure up to the required degree, she is not liable as
 long as she did her best and was reasonably careful under the circumstances.
 In other words, the instruction would improperly permit a jury to conclude
 that a physician who lacked the requisite skill or knowledge is not liable
 as long as she used her best judgment and reasonable care in the exercise of
 whatever skill or knowledge she did possess, however limited.
      That is not the law.  Section 1908(1) imposes an objective standard,
 and measures the defendant doctor's conduct against what a reasonable doctor
 would have done in the same or similar circumstances.  The trial court's
 error in suggesting a subjective standard was compounded by the reiteration
 of the "best judgment" language in the following sentence, which refers to
 the "level of knowledge, skill and care previously described."
      The challenged words are not cured by the context in which they appear.
 While the beginning and end of the standard-of-care instruction correctly
 state the law, the error was not harmless.  See Feldman v. Lederle Lab., 625 A.2d 1066, 1069 (N.J. 1993) (inconsistent statements in jury charge do not
 counteract one another to produce correct jury instruction).  In fact, Dr.
 Kristensen's final argument centered largely on the theme that she did her
 best "under fire."  For instance, acknowledging that not all patients
 survive, counsel expounded: "But, that's life.  You [the doctor] do your
 best, you try your hardest."
       The "mere error in judgment" reference further compounded the
 confusion in that the term is subject to varying definitions.  Does it mean
 a sound judgment, which "merely" led to a bad result, that is, the
 alternatives considered were proper but the one chosen "merely" happened to
 lead to trouble through no fault of the doctor?  Or does it mean that the
 judgment itself was flawed, regardless of the result?
      Defendants maintain the language was necessary to "tell the jury that a
 mistaken judgment, without more, does not establish malpractice."  See
 Watson v. Hockett, 727 P.2d 669, 674 (Wash. 1986) (en banc) ("error in
 judgment" instruction appropriate when doctor has choice among competing
 therapeutic techniques or medical diagnoses).  While we have upheld
 instructions that tend to explain what the standard of care is not, see
 Utzler v. Medical Ctr. Hosp. of Vt., 149 Vt. 126, 127, 540 A.2d 652, 653
 (1987) (physician not required to be infallible), the "mere error in
 judgment" instruction begs for a meaning.  The message intended by the
 giving of the instruction -- that a doctor may choose among several proper
 alternatives, even though the one chosen leads to an unfortunate result --
 is not self-evident.  The instruction would have been more understandable if
 it had spelled out that when a doctor chooses between appropriate
 alternative medical procedures or actions, harm that results from the

 

 doctor's choice of one alternative over the other is not necessarily
 malpractice.  Appropriate choices could be defined as those that a
 reasonable doctor would have considered under the same or similar
 circumstances.  In this case, a surgical cricothyrotomy, the Nu-Trake
 device, and the jet ventilator all arguably afforded appropriate
 alternatives when the "can't intubate/can't ventilate" emergency developed.
 Despite plaintiff's claim that Dr. Kristensen did not use the Nu-Trake
 device properly, the "mere error of judgment" language may even have misled
 the jury to think that the selection of an appropriate course of treatment
 absolves a doctor from liability, regardless of the administration of that
 treatment.
      As we stated in Deyo v. Kinley, "It may in fact be better to avoid
 error in judgment language because such language is basically ambiguous and
 subjective."  152 Vt. 196, 209-10, 565 A.2d 1286, 1293 (1989); see also
 Rogers v. Meridian Hosp., 772 P.2d 929, 933 (Or. 1989) (en banc) ("error in
 judgment" instruction "obscures the fact that, to avoid liability, the
 defendant must exercise the degree of care, skill, and diligence required by
 law," and "suggest[s] that substandard conduct is permissible if it is
 garbed as an 'exercise of judgment'"). A number of courts have directed
 similar criticism at malpractice instructions revolving around "judgment."
 See, e.g., Somer v. Johnson, 704 F.2d 1473, 1478 (11th Cir. 1983) ("honest
 error of judgment" instruction "invited the jury to make impermissible
 alternative findings that the defendants had violated the appropriate
 standard but conformed to the incorrect one"); Sleavin v. Greenwich
 Gynecology & Obstetrics, P.C., 505 A.2d 436, 440 (Conn. App. Ct. 1986)
 ("bona fide error in judgment" charge likely to confuse jury);  Teh Len Chu

 

 v. Fairfax Emergency Medical Assocs., 290 S.E.2d 820, 822 (Va. 1982) (per
 curiam) (terms like "bona fide error" and "honest mistake" are improper in
 instructions concerning negligence in medical malpractice actions).
      Since the challenged paragraph was given only in reference to Dr.
 Kristensen and Anesthesia Associates, the error does not affect the verdict
 for the hospital.
                                     B.
      Other portions of the standard-of-care instruction are also challenged.
 With respect to Dr. Kristensen and Anesthesia Associates, the court told the
 jury that "[n]egligence is not shown simply because in hindsight some other
 course of action would have been better or more effective."  Plaintiff
 argues that this language precluded the jury from drawing a permissible
 inference of negligence from Dr. Kristensen's use of the Nu-Trake device on
 the ground that a reasonable practitioner would have chosen a more effective
 alternative, such as the TTJV or surgical cricothyrotomy.  We find no error.
      Any course of conduct, regardless of its efficacy or the availability
 of other options, which is in accordance with the applicable standard of
 care is not negligence.  See Holbrook v. Fokes, 393 S.E.2d 718, 719, (Ga.
 Ct. App. 1990) ("after-the-fact" assessment of evidence does not support
 negligence if "initial assessment" met the standards of reasonable medical
 care).  The "hindsight" instruction given here informed the jury properly
 that it should not be influenced by evidence developed in the years
 following Mrs. Rooney's death that made the transtracheal jet ventilator a
 better choice than the Nu-Trake device.  Dr. Kristensen's decision to use
 the Nu-Trake device must be measured against the standard of care applicable
 in 1988, not at the time of trial.  The instruction made that point.

 

      Plaintiff also objected to, and appeals, that portion of the instruct-
 ion stating that a doctor does not "guarantee a good result," and that part
 applicable to MCHV stating "[a] hospital, too, does not guarantee a good
 result.  It is liable only for negligence."  We have previously indicated
 that "no guarantee" instructions, if given, must be phrased in a
 straightforward and nonargumentative manner.   Deyo v. Kinley, 152 Vt. at
 208, 565 A.2d  at 1293.  The instructions given here do not deviate from
 this standard.  Moreover, despite the court's instruction that the jury not
 be swayed by sympathy for plaintiff, this case was particularly sympathetic
 to plaintiff's point of view.  In this context, the "no guarantee"
 instruction would help to dispel a jury's urge to call for relief solely
 because the result was so tragic.
                                    III.
      Plaintiff next argues, applicable to all defendants, that the court
 erred in failing to give a concurrent cause instruction, and further claims
 that the three-pronged proximate cause instruction was erroneous or at best
 confusing.  Plaintiff requested the trial court to instruct the jury that:

           [I]t is not necessary for the plaintiff to establish
           that the negligence was the sole cause of the death.  In
           other words, there may be more than one proximate cause
           concurring to produce an injury or death.  And, wherever
           there is more than one proximate cause of an injury or
           death, the injury or death may be attributed to any and
           all of such causes and, under Vermont law, recovery may
           be had from a defendant who is responsible for any one
           of the several causes.

           ....

             You should also have in mind that if the negligence of
           one or more of the defendants brings into activity a
           condition to which Margaret Rooney was predisposed,
           proximate cause exists between the defendants'
           negligence and the entire damages which ensue.

 

      The instruction given stated in relevant part:

           To prove that any negligence was a proximate cause of
           death, three things must be shown.  One, the negligence
           led to the death in a natural and uninterrupted sequence
           of events.  Two, the negligence was a substantial factor
           in bringing about the death.  And, three, the death
           would not have happened if that defendant had not been
           negligent.

           In some cases an occurrence may have more than one
           proximate cause.  In order to render a verdict against
           any defendant, you must first find that party to have
           been negligent and then that the negligence must have
           been a proximate cause, or was a proximate cause, of
           Margaret Rooney's death.
 (emphasis added) (citations omitted).
      Although plaintiff did submit his own proximate cause instruction, he
 never objected to the trial court's three-prong proximate cause instruction.
 Therefore, the issue was not preserved and we do not reach it.  V.R.C.P.
 51(b) (party may not assign error to court's failure to give requested
 instruction unless party objects thereto, stating grounds for objection
 distinctly).  The crux of plaintiff's challenge is that the trial court
 failed to emphasize to the jury that defendant's negligence need not be the
 only cause of the injury complained of and defendants could be found liable
 if their negligence was a substantial factor, concurring with some other
 cause acting at the same time, in bringing about the damage.  The
 instruction given, however, made it plain -- albeit in more succinct terms
 than offered by plaintiff -- that more than one proximate cause of Mrs.
 Rooney's death was possible and if a defendant's negligence was one of them,
 liability would follow.  Although this charge did not use the words
 "concurrent cause," it did use the indefinite article "a," and more
 importantly, it specifically told the jury that there could be more than one
 proximate cause.  See Mobbs v. Central Vt. Ry., 155 Vt. 210, 219, 583 A.2d 566, 577 (1990) (use of indefinite article "a" rather than definite article
 "the" indicated that more than one proximate cause was possible).
      Brevity of an instruction, without more, is hardly grounds for
 complaint.  If plaintiff wanted to elaborate on the meaning of the
 instruction, he could have done so in his final argument to the jury.  That
 the verdict form required the jury to find that a defendant's negligence
 proximately caused Mrs. Rooney's death has to be read in light of the entire
 instruction.  Contrary to plaintiff's argument that the jury was misled, we
 conclude the instruction was proper.
                                     IV.
      Last, plaintiff argues that the trial court made two errors with
 respect to deposition testimony introduced at trial.  First, he claims that
 Dr. Kristensen, her expert witnesses, and the head nurse of MCHV all
 "changed their deposition testimonies on important particulars without any
 prior notice to plaintiff" in violation of V.R.C.P. 26(e).  Second,
 plaintiff maintains that the court should have instructed the jury, as he
 had requested, that prior deposition testimony could be considered as
 "substantive evidence."
                                     A.
      At trial, based upon several witnesses' differences between deposition
 testimony and in-court testimony, plaintiff sought to impeach them and to
 emphasize the substantive importance of their deposition testimony.
 Plaintiff asked the witnesses about a party's responsibility to supplement
 and correct deposition testimony.  Dr. Kristensen objected to the line of
 inquiry, maintaining that there was no continuing duty to supplement or

 

 correct deposition testimony.  In sustaining the objection, the court
 cautioned the jury:

           [I]f there are some changes in opinion or recollection,
           there is no ongoing obligation on the part of the
           witness to communicate those changes.
      Rule 26(e), governing supplementation of discovery responses, begins by
 stating:

           A party who has responded to a request for discovery
           with a response that was complete when made is under no
           duty to supplement the response to include information
           thereafter acquired . . . .
 (emphasis added).  This rule is, however, subject to certain exceptions.
 One exception requires a party "to supplement [a] response with respect to
 any question directly addressed to . . . the substance of [expert witness]
 testimony."  V.R.C.P. 26(e)(1)(B).  Another exception imposes a duty to
 supplement when "the party knows that the response though correct when made
 is no longer true and the circumstances are such that a failure to amend the
 response is in substance a knowing concealment."  V.R.C.P.(e)(2)(B).  The
 Rule 26(e) exceptions impose a burden to supplement discovery only "where
 after-acquired information is of great importance and is particularly likely
 to come to the attorney's attention."  Reporter's Notes, V.R.C.P. 26.
      The differences between witnesses' deposition testimony and trial
 testimony in this case were not surprising.  For instance, Dr. Kristensen
 testified at her deposition that it took 15-20 minutes for a tracheostomy
 tray to arrive after her initial request, but testified at trial that it
 took only 10-15 minutes for it to arrive.  MCHV head nurse Bridgette Verdon
 testified at her deposition that at some point prior to January 11, 1988,
 tracheostomy trays were available outside of every operating room at the
 hospital, but at trial was unable to recollect any such practice at the

 

 hospital prior to that date.  Dr. Kristensen's expert witness, Dr. Chestnut,
 testified at his deposition that he was unable to say why Dr. Kristensen
 was unable to intubate or ventilate Mrs. Rooney, or whether the aberrant
 carotid artery caused Dr. Kristensen to encounter blood when she used the
 Nu-Trake device.  At trial, Dr, Chestnut testified that the likely reason
 for Mrs. Rooney's obstructed airway was an allergic reaction to one of the
 drugs administered and that the Nu-Trake device probably lacerated the
 carotid artery.
      Shifting recollections of events which transpired five years previously
 are understandable, as is the fact that experts may interpret events in a
 different light over time.  While we may reasonably differ on the relative
 importance of the shifting accounts of various testimony, the differences
 did not change any expert's more significant opinions or reveal any knowing
 concealments.  The differences in the recounting of the facts was not so
 marked that the court's ruling on the duty to supplement deposition
 transcripts was an abuse of discretion.
                                     B.
      V.R.E. 801(d)(1)(A) permits prior inconsistent statements made in
 depositions to be used as substantive evidence.  See Reporter's Notes,
 V.R.E. 801.  Although plaintiff did not object at trial, he now complains
 that the trial court failed to instruct the jury that the deposition
 testimony could be considered both as impeachment and substantive evidence.
 The court instructed the jury as follows:

           If you conclude there has been a change in recollection,
           opinion or testimony of any witness from the time of the
           deposition to the time of trial, [] you will consider
           what the change is, consider its significance and
           consider how you weigh it as part of weighing the
           testimony of the witness.

 

 In its final charge to the jury, the court instructed:

           If you believe that any witness has been [] impeached,
           then it is your exclusive province to give the testimony
           of that witness just such credibility or weight as you
           may think it deserves."
      Neither instruction limited the use of the prior inconsistent statement
 for any particular purpose.  The jury was free to "weigh" the evidence for
 any purpose it saw fit.  No error occurred.
      Reversed and remanded for a new trial against defendants Dr. E. A.
 Kristensen and Anesthesia Associates.  Affirmed as to defendant Medical
 Center Hospital of Vermont.


                                    FOR THE COURT:



                                    _________________________________
                                    Associate Justice