Greene v. Bell

Greene v. Bell (99-070); 171 Vt.280; 762 A.2d 865 

[Filed 20-Oct-2000]


       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. 99-070

Kelly R. Greene, et al.	                         Supreme Court

                                                 On Appeal from
     v.	                                         Rutland Superior Court


Michael R. Bell, M.D.,	                         June Term, 2000
Castleton Health Associates, Inc. and
Rutland Regional Physicians' Group


Mary Miles Teachout, J.

Karl C. Anderson of Anderson & Eaton, P.C., Rutland, for Plaintiffs-Appellants.

Karen S. Heald of Cleary Shahi Associates, P.C., Rutland, for 
  Defendant-Appellee Bell.

John D. Monahan, Jr. of Dinse, Knapp & McAndrew, P.C., Burlington, for 
  Defendant-Appellee Castleton Health Associates, Inc.

PRESENT:  Amestoy, C.J., Dooley, Morse and Skoglund, JJ., and Toor, Supr. J., 
          Specially Assigned


       SKOGLUND, J.   Plaintiff Abby Greene, individually and on behalf of
  the estate of her  deceased husband, Kelly Greene, and the couple's three
  minor children, appeals from a judgment   based upon a jury verdict in
  favor of defendants Michael R. Bell, M.D. and his employer, Castleton 
  Health Associates, Inc. (FN1) Plaintiff contends the court committed
  numerous evidentiary and  instructional errors.  We affirm.     

       In July of 1993, Kelly Greene visited the office of Dr. Bell, a family
  practice physician, to 

 

  have a mole on his back examined and assessed.  Precisely what transpired
  during that visit was the  subject of vigorous dispute and conflicting
  evidence at trial.  Dr. Bell testified that, after obtaining a  history and
  examining Mr. Greene, he made the clinical assessment that the mole was
  either one of  two types of benign lesions - seborrheic keratosis or
  compound nevus (nevus is a general term for a  congenital growth on the
  skin), and, with Mr. Greene's concurrence, scheduled him for a follow-up 
  visit for surgical removal of the mole.  Dr Bell disputed plaintiff's claim
  that he (Dr. Bell) had been  informed the mole had recently changed in
  appearance, a warning sign for melanoma. Mr. Greene, in  a videotaped
  deposition to preserve testimony, recalled that Dr. Bell indicated the mole
  was nothing  to worry about, and that it could be removed if it became
  uncomfortable.    

       Mr. Greene did not return for the scheduled surgery.  Nearly two years
  later, in April 1995,  Mr. Greene made another appointment to have the mole
  examined, complaining that it was bothering  him.  Dr. Bell removed the
  mole and had it biopsied, which revealed an advanced malignant nodular 
  melanoma.  Despite subsequent surgery and treatment, the cancer continued
  to spread.  Mr. Greene  died of melanoma in November 1997.              

       Plaintiff, Mr. Greene's wife, subsequently filed suit on behalf of the
  estate and her three  minor children, claiming that Dr. Bell had
  negligently failed to educate Mr. Greene about the risk   factors for
  melanoma that were indicated during the July 1993 visit and the importance
  of surgical  removal of the mole, and that but for Dr. Bell's negligence
  Mr. Greene would not have died.   Following a week-long trial, in which
  numerous medical experts testified for each side, the jury  returned a
  special verdict in favor of  defendants, finding that Dr. Bell had not been
  negligent.  The  trial court denied a subsequent motion for judgment as a
  matter of law.  This appeal followed.

 

                                     I.


       Plaintiff first contends the trial court committed prejudicial error
  by precluding one of their  experts, Dr. Sober, from explaining the risk
  factors present in Mr. Greene.

       Our discovery rules permit one party to compel the other to "identify
  each person whom the  other party expects to call as an expert witness at
  trial,  to state the subject matter on which the expert  is expected to
  testify, and to state the substance of the facts and opinions to which the
  expert is  expected to testify and a summary of the grounds for each
  opinion."   V.R.C.P. 26(b)(4)(A)(i).  A  trial court has inherent authority
  to enforce the discovery requirements of V.R.C.P. 26 by excluding 
  evidence, granting a continuance, or by taking other appropriate action. 
  See White Current Corp. v.  Vermont Elec. Coop., 158 Vt. 216, 223, 609 A.2d 222, 226 (1992).  Absent an abuse of discretion, a  trial court's
  imposition of discovery sanctions will not be disturbed.  See id.; see also
  Agency of  Natural Resources v. Glens Falls Ins. Co., 169 Vt. 426, 434, 736 A.2d 768, 773 (1999).

       In response to interrogatories, plaintiffs here disclosed that Dr.
  Sober was expected to testify  about "causation in this particular case and
  the treatment of melanoma."  More specifically, it was  expected that he
  would state his opinion concerning Mr. Greene's chances of long-term
  survival if  the mole had been removed in 1993; Dr. Sober would testify
  that, depending on certain factors, the  odds of long-term survival ranged
  from 90% to no worse than 66%.  At trial, however, plaintiffs  sought to
  use photographs of Mr. Greene's back, taken two to three years after his
  examination by  defendant, to elicit testimony from Dr. Sober concerning
  the number and type of moles that were  probably present at the time of the
  examination, and the fact they were a risk factor for melanoma.   The court
  excluded the testimony, ruling that it exceeded the scope of the subjects
  and opinions on  which the expert was expected to testify as disclosed by
  plaintiff during pretrial discovery, and that 

 

  defendants had not had the opportunity to prepare for these subjects.  

       The record amply supports the court's conclusion that the testimony
  sought to be introduced   was outside the scope of the matters disclosed,
  and represented an unfair surprise to defendants.   Although plaintiff
  alleges that there was no prejudice to defendants because they had delved
  into  these areas during Dr. Sober's deposition, and that defendants
  themselves had opened the door to the  subject during their
  cross-examination of Dr. Sober, the record does not support either claim.  
  Accordingly, we discern no basis to conclude that the court abused its
  discretion in excluding the  testimony.

                                     II.
 	
       Plaintiff next challenges the trial court's decision to exclude as
  irrelevant certain videotaped  testimony of Dr. Anita Licata, who had
  examined and treated Mr. Greene during one visit in 1996.   As with Dr.
  Sober, plaintiff sought to establish that Dr. Licata's observation of
  numerous atypical  nevi established risk factors for melanoma that were
  present in 1993.

       The trial court enjoys broad discretion in determining whether
  evidence is relevant, and will  not be overruled absent an abuse of
  discretion.  See State v. Bernier, 157 Vt. 265, 268, 597 A.2d 789,  791
  (1991).  Moreover, an erroneous evidentiary ruling is grounds for reversal
  only if it affects a  substantial right of the party.  See In re B.S., 163
  Vt. 445, 454, 659 A.2d 1137, 1143 (1995).  The  record here reveals that
  despite the court's ruling, plaintiff adduced  evidence through her
  standard of  care expert, Dr. Campbell, that dysplastic nevus syndrome -
  the presence of numerous moles - is a  risk factor for melanoma, and that
  Mr. Greene had a family-history of this syndrome; that Mr.  Greene,
  according to his wife, had numerous moles on his back when he visited Dr.
  Bell in 1993;  and that, as defendants' expert Dr. Plante acknowledged, Mr.
  Greene probably had clinically atypical 

 

  moles in 1993 when he visited Dr. Bell, which represented a risk for
  melanoma.  Photographs of Mr.  Greene's back, which plaintiff attempted to
  introduce through Dr. Licata, were also later admitted.   Thus, even if the
  court erred in limiting Dr. Licata's testimony, similar evidence was
  otherwise  presented at trial.  Accordingly, we cannot conclude that the
  trial court's ruling constituted prejudicial  error requiring reversal.  

                                    III.

       Plaintiff next contends the trial court erred in allowing defendants'
  expert, Dr. Spenser, to  testify on issues relating to plaintiff's burden
  of proof.  As noted, plaintiff's expert, Dr. Sober,  testified about Mr.
  Greene's chances of survival if the mole had been removed in 1993.  Dr.
  Spenser,  a dermatologist,  testified in response that statistical
  probabilities with regard to survivability are  based  upon patient
  populations as a whole, and cannot reliably be applied to any single
  individual.   Plaintiff had sought to exclude Dr. Spenser's testimony on
  the ground that it would confuse the jury  on the issue of causation,
  misleading them to believe that plaintiff must prove Mr. Greene was not 
  within the percentage of the population who die from melanoma despite its
  early detection, and  further suggesting that the standard of proof for
  expert medical evidence was somehow higher than  the law required, i.e, a
  reasonable degree of medical certainty.   See Everett v. Town of Bristol,
  164  Vt. 638, 639, 674 A.2d 1275, 1277 (1996) (mem.) (expert testimony must
  meet standard of  reasonable probability or reasonable degree of medical
  certainty). The court allowed the testimony,  observing that it would
  subsequently instruct the jury on the appropriate burden of proof.

       Plaintiff renews the claim on appeal that Dr. Spenser's testimony
  improperly suggested a  different burden of proof than was required by law.
  We are not persuaded, however, that the  testimony that survival-group
  statistics did not necessarily apply to Mr. Greene was likely to mislead 

 

  or confuse the jury on plaintiff's burden.  We also note that the court
  correctly instructed the jury on  the applicable legal burdens of proof.  
  See Gallerani & Sons, Inc. v. State Highway Bd., 133 Vt.  485, 486, 346 A.2d 529, 530 (1975)  (absent objection, we assume jury followed court's 
  instructions).  Accordingly, we discern no error in the admission of Dr.
  Spenser's testimony. (FN2)  

                                     IV.

       Plaintiff next asserts that the court erred in denying her requests to
  charge the jury on  "informed refusal" and "failure to refer to a
  specialist."  The first proposed instruction would have  informed the jury
  of the duty of a medical practitioner to apprise the patient not only of
  the procedure  prescribed, but also of the risks involved in a decision not
  to undergo treatment.  The trial court  rejected the proposed instruction,
  noting that the negligence instructions adequately explained   plaintiff's
  theory that defendants had negligently failed to remove the mole on Mr.
  Greene's back for  a biopsy, and had negligently failed to educate Mr.
  Greene to monitor the mole for changes that  would warrant future medical
  attention.  The second  proposed charge essentially instructed the jury  to
  hold Dr. Bell to the standard of care of a dermatologist if they found that
  he should have referred  Mr. Greene to such a specialist.   The court
  denied the requested charge, again noting that it was  subsumed within the
  general standard-of-care instructions.

       "A party claiming error in jury instructions must establish not only
  that they were erroneous  

 

  but that prejudice resulted."  Turgeon v. Schneider, 150 Vt. 268, 276, 553 A.2d 548, 553988).  The  court need not make every conceivable comment that
  could be made upon the issues and evidence;  how far the court must
  elaborate lies within its sound discretion.  See id.  The adequacy of the 
  instructions must be evaluated as a whole and not piecemeal.  See id.    

       Assessed in the light of these standards, plaintiff's claim fails at
  the threshold; she has made  no showing whatsoever as to how the court's
  refusal to give the proposed instructions resulted in  prejudice. 
  Furthermore, the court correctly ruled that the duties referred to in the
  proposed charges  were otherwise subsumed within the general standard of
  care instructions, and that more specific  instructions were unnecessary. 
  Accordingly, we discern no error.

                                     V.

       Plaintiff contends the court erroneously allowed a defense witness,
  Dr. Donald Stanley, to  testify as an expert witness on issues of causation
  and standard of care, although he had not been  disclosed as an expert and
  his opinions had not been disclosed.   Dr. Stanley, a pathologist employed 
  by the Rutland Regional Medical Center, had initially reviewed and reported
  on the slides from the  biopsy in April 1995 that resulted in the melanoma
  diagnosis.  Dr. Stanley was disclosed only as a  fact witness, and the
  court, in response to plaintiff's motion in limine, ruled that, as a fact
  witness, he  could give opinion testimony only as to the characteristics of
  the pathology at the time he examined  the biopsy slides in 1995, including
  whether it was malignant, pigmented, or hairy, but could not  give opinions
  about its age, rate of growth, pigmentation in 1993, the standard of care,
  causation, or  other matters outside the scope of his examination in 1995.

       Dr. Stanley testified about his findings, and in particular about his
  pathology report which  described a "nodular melanoma in pure vertical
  growth phase . . .  arising in conjunction with an 

 

  intradermal nevus."  He was allowed, over objection, to define nodular
  melanoma, to explain what  he meant by "arising in conjunction with an
  intradermal nevus," and to describe the  nevus as hairy  and non-pigmented. 
  Plaintiff objected below, and argues on appeal, that Dr. Stanley's
  testimony  constituted expert opinion evidence beyond the proper scope of a
  fact witness and the court's ruling.   The record reveals, however, that
  the court repeatedly reminded the witness to describe and explain  only
  what he had observed microscopically while examining the biopsy slides in
  1995.  The  testimony did not exceed the scope of the court's ruling, or
  introduce a previously undisclosed theory  of causation, as plaintiff
  claims.  Accordingly, we discern no abuse of discretion.  See Quirion v. 
  Forcier, 161 Vt. 15, 21, 632 A.2d 365, 369 (1993)  (we review trial court's
  evidentiary rulings only  for abuse of discretion). (FN3)      

                                     VI.

       Plaintiff next contends the court erred in precluding two witnesses,
  Thomas Moon, a friend  of Mr. Greene's, and Mrs. Greene from testifying
  that Mr. Greene felt relieved after his examination   by Dr. Bell.  The
  court ruled that Moon could testify about what Mr. Greene said he was
  feeling,  under the hearsay exception for then-existing mental or emotional
  condition, see V.R.E. 803(3), but  could not characterize those feelings as
  "relieved."  Later, the court again ruled that Mrs. Greene  could  testify
  about what Mr. Greene said he was feeling, but could not testify that Mr.
  Greene felt  relieved, explaining that the testimony went too far in
  creating an inference about specific statements 

 

  made by Dr. Bell during the office visit.   

       The trial court determines the admissibility of evidence at trial, and
  we will disturb its  discretionary ruling only if that discretion has been
  abused.   See Quirion, 161 Vt. at 21, 632 A.2d  at  369.   The erroneous
  admission or exclusion of evidence is grounds for reversal only if it
  resulted in  prejudice affecting a substantial right of the party.   See In
  re B.S., 163 Vt. at 454, 659 A.2d  at 1143.  Although plaintiff contends
  that the trial court's ruling prevented her from rebutting Dr. Bell's 
  version of the office visit, the record shows that Mr. Greene stated in his
  videotaped testimony that  Dr. Bell specifically told him there was nothing
  to worry about.   Mrs. Greene was also allowed to  testify that Mr. Greene
  appeared to be "happy" after the office visit, and that she herself "felt 
  relieved" after the office visit.  Accordingly, the record does not support
  the claim that the court's  ruling, regardless of its merits, precluded
  plaintiff from rebutting Dr. Bell's recollection of events. 
 
                                    VII.

       Plaintiff next contends the trial court erroneously limited
  cross-examination of a defense  expert, Dr. Forcier, in two respects.  Dr.
  Forcier testified that Mr. Greene's nodular melanoma had  probably
  developed within months of the biopsy in April 1995, and that there were no
  clinical signs  of melanoma at the time of Mr. Greene's appointment with
  Dr. Bell in July 1993.  Plaintiff sought to  impeach Dr. Forcier using an
  expert disclosure signed by defense counsel that identified Dr.  Raymond
  Barnhill as an expert, and described Dr. Barnhill's opinion that nodular
  melanomas  "usually have an indolent period of a number of years followed
  by a rapid growth phase."  The court  sustained a defense objection to the
  proposed use of the expert disclosure form, ruling that even if  the
  attorney's statements were admissible as an admission by a party opponent
  under V.R.E.  801(d)(2), they contained  inadmissible hearsay statements by
  Dr. Barnhill.

 

       Although plaintiff asserts that the court's ruling was in error, she
  makes no argument or  showing as to how the alleged error was prejudicial. 
  See In re B.S., 163 Vt. at 454, 659 A.2d  at 1143  (erroneous evidentiary
  ruling is grounds for reversal only if it results in prejudice affecting 
  substantial right of party).  There was no proffer below, and no
  demonstration on appeal, as to how  Dr. Barnhill's reference to an
  "indolent period of years" differed from or contradicted Dr. Forcier's 
  testimony that the melanoma could be present for a considerable
  "subclinical" period, during which  time the melanoma would not be
  clinically detectable.  Thus, there is no basis to conclude that the 
  court's ruling, even if erroneous, was prejudicial or warrants reversal.    	
  Plaintiff also contends the  court erroneously precluded her from
  impeaching Dr. Forcier's testimony that certain clinical signs,  the
  "ABCD's" of melanoma (asymmetry, border, color, and diameter), applied to
  superficial  spreading melanomas, but not to nodular melanomas.  On
  cross-examination, plaintiff's counsel  asked  Dr. Forcier whether he
  disagreed with plaintiff's expert, Dr. Sober, that these clinical signs 
  applied equally to both kinds of melanoma.  The court sustained an
  objection on the ground that Dr.  Sober had not so testified.  A review of
  the record reveals that while Dr. Sober referred on at least  two occasions
  to the clinical "ABCD's" in other contexts, he did not testify that they
  applied to  nodular melanomas.  Accordingly, there was no error.    

                                    VIII.

       Plaintiff next asserts the trial court improperly permitted Dr.
  Plante, an internist, to testify as  a defense expert on the standard of
  care of Dr. Bell, a family practitioner.   Whether a witness may  testify
  as an expert is a matter left to the sound discretion of the trial court. 
  See State v. Perry, 151  Vt. 637, 642, 563 A.2d 1007, 1011 (1989).  Here,
  the record amply supported the trial court's finding  that, as a physician
  specializing in primary care internal medicine, Dr. Plante's training and 

 

  experience in the analysis and treatment of skin lesions was the same as a
  family practice doctor.   Thus, the court did not abuse its discretion.

                                     IX.

       Finally, plaintiff contends the court erred in denying her motions for
  judgment as a matter of  law.  On review of a motion for judgment as a
  matter of law, we view the evidence in the light most  favorable to the
  verdict, excluding the effect of modifying evidence. See Haynes v. Golub
  Corp., 166  Vt. 228, 233, 692 A.2d 377, 380 (1997).  We will uphold the
  trial court's denial of the motion if any  evidence fairly and reasonably
  supports a lawful theory of the opposing party.  See id.   	Plaintiff 
  renews the claim, asserted below, that the uncontradicted testimony of  the
  standard-of-care  witnesses was that Dr. Bell had violated the standard of
  care by failing to advise Mr. Greene about  the risk factors for melanoma
  at the time of his visit in July 1993.  The record, however, supports the 
  trial court's finding that Dr. Plante - defendants' standard-of-care expert
  - testified that Dr. Bell's  actions complied with the standard of care;
  Dr. Plante indicated that it was not a breach of the  standard of care for
  Mr. Greene to have left Dr. Bell's office without further education about
  the risk  of melanoma because that discussion was properly deferred to a
  follow-up visit after the  results of a  biopsy became available.  Thus,
  viewed in the light most favorable to defendants, the evidence  supported
  the court's denial of the motions for judgment as a matter of law.    

       Affirmed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice
  

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                                  Footnotes


FN1.  Defendant Rutland Regional Physicians Group was dismissed prior to
  trial by agreement of  the parties.

FN2.  Plaintiff also claims in this regard that defense counsel improperly
  relied upon Dr.  Spenser's testimony during closing argument.  Plaintiff
  raised no objection to the argument at trial,  and therefore waived the
  issue on appeal.  See Human Rights Comm'n v. Labrie, Inc., 164 Vt. 237, 
  252, 668 A.2d 659, 670 (1995) (where specific objection not raised before
  trial court, this Court will  not address issue on appeal) .  Plaintiff
  also asserts the court improperly restricted  cross-examination  of Dr.
  Spenser by not allowing plaintiff's counsel to ask Dr. Spenser which
  statistical group he  personally would have preferred to be in.  The court
  sustained an objection, noting that the question  was argumentative.  The
  court's ruling was clearly within the scope of its broad discretion in
  ruling  on evidentiary issues.  See Quirion v. Forcier, 161 Vt. 15, 21, 632 A.2d 365, 369 (1993). 

FN3.  Plaintiff's additional claim that defense counsel improperly relied
  upon Dr. Stanley's  testimony during closing argument was not raised below,
  and therefore is not cognizable on appeal.   See Human Rights Comm'n, 164
  Vt. at 237, 668 A.2d  at 252 (where specific objection was not  raised
  below, this Court will not address claim on appeal).  Similarly, the claim
  that the testimony  should have been excluded because Dr. Stanley had a
  fiduciary duty to Mr. Greene as his treating  physician, was not raised at
  trial, and therefore was waived as an issue on appeal.  See id.