Billy Carpenter v. Stanley Ziomek, M.D.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

BILLY CARPENTER

APPELLANT

V.

STANLEY ZIOMEK, M.D.

APPELLEE

CA 00-961

April 25, 2001

APPEAL FROM THE DREW

COUNTY CIRCUIT COURT

[CIV-98-17-2]

HONORABLE SAMUEL E. POPE,

CIRCUIT JUDGE

AFFIRMED

This is a medical malpractice case in which appellant, Billy Carpenter, developed a life-threatening infection following abdominal surgery conducted by appellee, Stanley Ziomek, M.D. Appellant filed this lawsuit, alleging that the abdominal surgery was unnecessary and that therefore appellee was negligent in performing the surgery, which resulted in the infection. The case was heard by a jury, which returned a verdict in favor of the doctor. We affirm.

Appellee performed heart-bypass surgery on appellant on September 27, 1996. The next day, he performed surgery again to cap a bypass graft that was bleeding. It is undisputed that appellant has no complaints about his heart surgery. However, following the heart surgery, appellant began to develop abdominal problems, and appellee consulted with Dr.Ge

rald Silvoso, a gastroenterologist. Dr. Silvoso ordered a diagnostic gastrografin x-ray study, by which a radiopaque contrast material is passed through the patient's bowels under a flouroscope. The study was being performed on October 7, 1996, but, without consulting Dr. Silvoso, appellee ordered that the study be terminated because he feared that appellant might have a small-bowel obstruction that would cause him to aspirate the contrast material into his lungs. He told appellant's wife that appellant needed emergency surgery and that without it he might die. Appellant's wife consented to the surgery. Following the abdominal surgery, appellant developed an infection at the site of the surgical wound. It required a long period of treatment and rehabilitation, for which he sought damages in this lawsuit.

For his first point of appeal, appellant contends that the trial court erred in refusing to admit evidence of appellee's loss of hospital staff privileges. We disagree.

As part of the discovery in this case, appellee acknowledged the following:

[Appellee] was put on probationary status in 1997 by Baptist Medical Center because of an overall high mortality rate for cardiac surgeries, which had risen to 9% in 1996. [Appellee] disagreed with this decision because the mortality rate for elective surgeries was only 3%, and [appellee] was performing numerous emergency cardiac cases. Baptist Medical Center advised [appellee] to resign his privileges because of a death after a cardiac surgery. [Appellee] resigned these privileges before the peer review at Baptist was completed, and then attended a six-month fellowship at Texas Heart Institute and completed same on January 1, 1998. [Appellee] was then granted temporary privileges at Arkansas Heart Hospital in Little Rock. At the end of the 90-day probationary period, [appellee] had performed 32 heart operations with only one death and two strokes. [Appellee] was not granted permanent privileges and resigned from the staff.

Appellee filed a motion in limine requesting that evidence concerning the suspension and/or termination of his privileges from any Little Rock-area hospitals and his termination from thecardiovascular surgery group of C.D. Williams, of which he was a member, be excluded from the trial of the case. He contended that such evidence was not relevant to the issues presented by appellant's case because appellant had no complaints regarding the heart surgery. The trial court granted the motion as it related to appellee's case-in-chief, but denied it as far as the cross-examination of appellee "until I hear the testimony of any expert witnesses."

Appellant called appellee to testify as part of his case-in-chief and contends that in questioning him, counsel was careful to limit the questions to factual issues, "so as not to establish him as an expert witness." He further contends, however, that following this direct examination, appellee's own counsel elicited numerous expert opinions from appellee. Following this questioning, appellant's counsel contended in a bench conference with the trial court that appellee had thereby opened the door for appellant to question him in a limited fashion about the restrictions of his staff privileges. The trial court ruled that such questioning would be more prejudicial than probative and denied the request.

Our appellate courts have consistently held that trial courts are accorded wide discretion in evidentiary rulings, and we will not reverse such rulings absent a manifest abuse of discretion. Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999). Nor will we reverse a trial court's ruling on evidentiary matters absent a showing of prejudice. Id. Moreover, the balancing of probative value against prejudice pursuant to Rule 403 of the Arkansas Rules of Evidence is a matter left to the sound discretion of the trial judge, and that ruling will not be reversed absent a manifest abuse of discretion. Id. Similarly, a trial courthas wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of the issues or interrogation that is only marginally relevant. Id.

Here, we disagree with appellee's contention that appellant is precluded from raising this issue on appeal because no proffer of testimony was made. Rather, an extensive pre-trial hearing on the motion in limine was sufficient to demonstrate to the trial court the testimony appellee would have given concerning the suspension/termination of his privileges.

However, we agree with appellee that appellant's argument that the trial court abused its considerable discretion in refusing to allow evidence on this issue is not meritorious. Even if we were to assume for purposes of addressing this argument that appellee offered expert testimony on cross-examination, the testimony was limited to the abdominal surgery, not the heart surgery. It is the suspension of appellee's staff privileges to do cardiovascular surgery that appellant wanted to present to the jury. We find no abuse of discretion in the trial court's determination that any probative value of such evidence would be far outweighed by the danger of unfair prejudice.

For his second point of appeal, appellant contends that the "trial court erred in excluding testimony regarding appellee's statement following the second heart surgery." According to some of appellant's family members, in explaining the need for the second heart surgery, appellee told them that he had left a vein "uncapped" during the first heart surgery. Appellant contends that he should have been able to introduce evidence of this statement because it would "show the reason why the appellant had lost confidence in appellee and did not want him to perform abdominal surgery on October 7, 1996." Appellant further contendsthat "without appellant's ability to explain why his family had lost confidence in appellee as a surgeon, the contention that appellee should not have performed an emergency abdominal procedure on appellant lacks appropriate foundation." He cites no authority for his proposition.

Appellant's acknowledgment that the heart surgery provided no basis for any of his claims of malpractice, coupled with the fact that his wife's consent was given for the subsequent abdominal surgery, renders appellee's statement concerning the heart surgeries irrelevant. Moreover, appellant was allowed to present the testimony of one of his children, Jeanette Sanderlin, contending that the family had lost confidence in appellee and that the first heart surgery had not gone as well as the family had expected. The same standard of review for evidentiary rulings that is set forth in discussing appellant's first point of appeal applies here, and we simply find no abuse of the trial court's considerable discretion in excluding this testimony.

Affirmed.

Pittman and Roaf, JJ., agree.