LADDIE JOYCE GILBERT, Executrix of the Estate of HILDA PAYNE, Deceased v. SRIHARI R. MALEMPATI, M.D. and ANTHEM HEALTH PLANS OF KENTUCKY, INC.
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RENDERED:
August 22, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001612-MR
LADDIE JOYCE GILBERT, Executrix
of the Estate of HILDA PAYNE, Deceased
v.
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 00-CI-01382
SRIHARI R. MALEMPATI, M.D. and
ANTHEM HEALTH PLANS OF
KENTUCKY, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE, AND JOHNSON, JUDGES.
BUCKINGHAM, JUDGE: Laddie Joyce Gilbert, executrix of the estate
of Hilda Payne, appeals from a judgment of the Pike Circuit
Court resulting from a jury verdict on Gilbert’s medical
malpractice claim against Dr. Srihari R. Malempati.
Further,
Gilbert appeals from an order of the Pike Circuit Court denying
her motion for judgment notwithstanding the verdict or, in the
alternative, for a new trial.
We affirm.
Hilda Payne was treated by Dr. Malempati for severe
ulcer disease for many years.
a gastrectomy on Payne.
In 1994, Dr. Malempati performed
Thereafter, Payne developed a stricture
in the anastomotic site, and Dr. Malempati dilated the stricture
from time to time so as to allow for proper digestion.
On October 1, 1999, Dr. Malempati treated Payne by
doing an outpatient procedure called esophaogastroduodenoscopy.
This procedure is commonly referred to as an EGD.
As a part of
the procedure, Dr. Malempati inserted a scope into Payne’s
stomach and duodenum in order to view the opening between her
stomach and small intestine.
Dr. Malempati also dilated or
stretched the anastomotic site.
This procedure caused a hole to
form in Payne’s duodenum, and Payne returned to Dr. Malempati’s
care complaining of severe abdominal pain.
Dr. Malempati
discovered and diagnosed the perforation, and he decided to
observe the situation to determine if the perforation would
close spontaneously without the need for surgery.
The
perforation did not close spontaneously, and Dr. Malempati
performed a procedure known as a Billroth II on Payne on October
3, 1999.
As a part of this surgery, Dr. Malempati removed a
portion of the duodenum.
Instead of reconnecting the stomach to
the duodenum, Dr. Malempati left a duodenal stump.
Payne apparently remained in stable condition until
the evening of October 17, 1999.
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On the following evening, she
was transferred to the care of Dr. Charles Sachatello at St.
Joseph Hospital in Lexington, Kentucky.1
Dr. Sachatello operated
on Payne on the next day and discovered that the duodenal stump
was completely blown-out and that the ampulla vader was almost
free floating.
Dr. Sachatello also performed a second surgery,
and Payne spent approximately three months recuperating in the
hospital.
Payne brought a medical malpractice claim against Dr.
Malempati in the Pike Circuit Court in 2002.
She sought
compensation for medical expenses and for pain and suffering.
During the pendancy of the case, Payne died from the failure of
a heart valve that had been surgically placed several weeks
prior to her death.
There was no claim that the actions of Dr.
Malempati contributed in any way to Payne’s death.
Payne left a will leaving the entirety of her estate
to her friend, Laddie Gilbert.
Gilbert was named executrix of
Payne’s estate, and she continued the prosecution of the medical
malpractice claim in that capacity.
A jury trial was held in the Pike Circuit Court in May
2002.
At trial, Gilbert contended among other things that Dr.
Malempati was negligent in failing to operate on Payne before
October 3, 1999, and by negligently performing the October 3,
1
Dr. Malempati was out of town during this period of time.
turned Payne’s care over to Dr. Grady Stephens and Dr. Oon
Leedhanachoke on October 15, 1999.
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He had
1999, surgery.
The court instructed the jury to answer an
interrogatory regarding whether Dr. Malempati failed to comply
with the applicable standard of care.
The jury returned a
verdict in favor of Dr. Malempati, and a judgment was entered in
his favor.
Gilbert then filed a motion for a judgment
notwithstanding the verdict or, in the alternative, for a new
trial.
The circuit court denied the motion, and this appeal by
Gilbert followed.
Gilbert’s first argument is that the circuit court
erred in denying her motion for a judgment notwithstanding the
verdict or, in the alternative, for a new trial.
In support of
her motion, Gilbert cites Crest Coal Co., Inc. v. Bailey, Ky.,
602 S.W.2d 425 (1980).
In that case the Kentucky Supreme Court
held that “where the record shows, as it does here, that only
one fair and reasonable conclusion can be drawn from the
evidence, the case should not be submitted to the jury.”
427.
Id. at
Gilbert contends that only one fair and reasonable
conclusion could be drawn from the evidence at trial in this
case.
She asserts that reasonable persons could not differ on
the conclusion that Dr. Malempati was negligent and that his
negligence caused Payne harm.
Gilbert points to the testimony of Dr. Sachatello,
Payne’s treating surgeon.
She notes that Dr. Sachatello was not
hired as an expert by either party and that his testimony that
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Dr. Malempati was negligent and violated the applicable standard
of care was “ideal evidence from which to draw a verdict.”
Further, Gilbert discounts the testimony of Dr. Malempati’s
expert witness, Dr. William Cheadle.
Dr. Cheadle testified that Dr. Malempati did not
violate the applicable standard of care.
His testimony clearly
created a conflict with the testimony of Dr. Sachatello and Dr.
Joseph Vitello, Gilbert’s expert witness.
Although Gilbert
states in her reply brief that “[t]he weight of the evidence was
that Appellee was negligent,” it was for the jury to determine
the credibility of the witnesses and the weight of the evidence.
Peterman v. Darby, Ky., 419 S.W.2d 747, 749 (1967).
On appeal,
we will not “usurp the prerogative of a jury and decide as a
matter of law which witnesses are worthy of belief and which are
not.”
(1960).
Kentucky Power Co. v. Thompson, Ky., 335 S.W.2d 915, 918
In short, the trial court did not err in denying
Gilbert’s motion for judgment notwithstanding the verdict or, in
the alternative, for a new trial because more than one
reasonable conclusion could be drawn from the evidence due to
the conflicting nature of the expert testimony.
Gilbert’s second argument relates to three instances
where the circuit court ruled on evidentiary matters.
instance relates to the questioning of a witness.
Each
Our standard
of review of a trial court’s evidentiary rulings is whether the
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trial court abused its discretion.
Goodyear Tire and Rubber Co.
v. Thompson, Ky., 11 S.W.3d 575, 577 (2000).
First, Gilbert argues that the circuit court erred
when it allowed the jury to hear only a part of Dr. Sachatello’s
answer to a question.
Dr. Sachatello was asked by Dr.
Malempati’s counsel whether he was telling the jury that Dr.
Malempati was “a problem surgeon or a bad surgeon.”
Dr.
Sachatello responded that he was not telling the jury that, but
the circuit court did not allow the jury to hear the remainder
of Dr. Sachatello’s answer given during his deposition.
Therein, Dr. Sachatello responded that he had testified for Dr.
Malempati in a prior lawsuit.
Gilbert argues that the circuit court improperly
excluded Dr. Sachatello’s answer and that the testimony was
admissible to show that a reasonable person could conclude both
that Dr. Malempati was a competent surgeon but that he was
negligent in this case.
Gilbert asserts that the jury could
have been operating under a misconception that Dr. Sachatello
gave inconsistent testimony when he stated that Dr. Malempati
was not a bad surgeon but was negligent in this case.
The trial court ruled the testimony inadmissible
because it involved evidence of a prior medical malpractice suit
against Dr. Malempati.
Dr. Sachatello’s testimony in this case
was clear that Dr. Malempati was negligent in treating Payne.
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We fail to perceive how the jury could misconceive his testimony
or consider it inconsistent merely because he also testified
that he did not consider Dr. Malempati to be a bad surgeon.
Further, any perceived inconsistency could have been clarified
upon further questioning of Dr. Sachatello.2
In short, we
concluded that the trial court did not abuse its discretion in
not allowing the testimony.
Second, Gilbert argues that the circuit court erred
for another reason in not allowing the jury to hear testimony
that Dr. Sachatello was an expert witness for Dr. Malempati in
the prior case.
Citing Parsley v. Commonwealth, Ky., 306 S.W.2d
284, 285 (1957), Gilbert maintains that the interest of a
witness is not a collateral matter and may always be proved to
determine credibility.
Gilbert asserts that this testimony
would have bolstered the credibility of Dr. Sachatello by
revealing that, even though he was testifying against Dr.
Malempati in this case, he had testified in favor of Dr.
Malempati in a prior case.
Again, we conclude that the trial court did not abuse
its discretion in not allowing the testimony.
2
We begin by
Gilbert relies on Tuttle v. Perry, Ky., 82 S.W.3d 920 (2002), for the
premise that evidence having a tendency to make the existence of any
fact, of consequence to the determination, more or less probable is
admissible. Id. at 922. However, Gilbert has failed to demonstrate
how the fact that Dr. Sachatello testified for Dr. Malempati in a
prior malpractice claim makes any fact in this case more or less
probable.
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noting that the Parsley case made it clear that “[t]he scope and
extent of cross-examination for this purpose rests within the
sound discretion of the court.”
306 S.W.2d at 285.
Further,
the testimony would have had the effect of informing the jury
that a prior medical malpractice action had been filed against
Dr. Malempati.
Thus, even if we accept Gilbert’s argument that
the evidence was admissible, the trial court was within its
discretion in excluding it on grounds that its prejudicial
impact outweighed its probative value.
See Green River Elec.
Corp. v. Nantz, Ky. App., 894 S.W.2d 643, 645 (1995).
Third, Gilbert argues that the trial court erred by
not allowing her attorney to cross-examine Dr. Oon
Leedhanachoke’s testimony that Dr. Malempati was a “great
surgeon.”
Dr. Leedhanachoke was one of the doctors who assumed
responsibility for Payne’s care when Dr. Malempati left town on
October 15, 1999.
In response to a question, Dr. Leedhanachoke
testified that Dr. Malempati was a “great surgeon.”
Pursuant to
KRE3 405(b), Gilbert’s attorney attempted to ask Dr.
Leedhanachoke about his knowledge of specific incidents where
other patients had accused Dr. Malempati of malpractice and, in
one case, where a settlement of a claim resulted.
The trial
court again denied the testimony because it related to
collateral claims against Dr. Malempati.
3
Kentucky Rules of Evidence.
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We again conclude that the trial court did not abuse
its discretion in refusing to allow this testimony.
KRE 405(b)
allows a character witness to be cross-examined to inquire if
the witness has heard or knows about relevant specific instances
of conduct.
However, Dr. Leedhanachoke was not a character
witness nor did he testify as to Dr. Malempati’s character.
Further, Dr. Malempati’s character was not an issue in dispute
under Gilbert’s claims as required under KRE 405(b).
Finally,
we see no indication that Gilbert’s attorney preserved any error
in this regard.
Gilbert’s third and final argument involves two
allegations of improper conduct by Dr. Malempati’s attorney
during the trial.
First, she argues that Dr. Malempati’s
attorney improperly cross-examined her expert, Dr. Joseph
Vitello, resulting in unfair prejudice.
The matter involved
whether Dr. Vitello had reviewed all relevant medical records
before arriving at an opinion concerning whether Dr. Malempati
violated the applicable standard of care.
Gilbert asserts that
Dr. Malempati’s attorney deliberately misled the jury into
believing that Dr. Vitello had testified in his deposition that
he had only reviewed part of the records.
Because Gilbert has
not demonstrated that any error in this regard was preserved for
appellate purposes and because Gilbert’s attorney had the
opportunity to clarify any misconception upon redirect
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examination of the witness, we fail to perceive either error or
attorney misconduct.
In her second allegation of improper conduct by Dr.
Malempati’s attorney, Gilbert argues that counsel “crossed the
line when she insinuated through her questioning that Ms. Payne
and Ms. Gilbert shared a homosexual relationship.”
that the matter was irrelevant and prejudicial.
She asserts
In reviewing
this issue, we first note that no questions relating to
homosexuality were asked by counsel.
Second, Gilbert’s counsel
did nothing to preserve error such as requesting that the jury
be admonished or that a mistrial be declared.
In short, we do
not perceive either error or counsel misconduct in connection
with the questions and testimony involving this matter.
The judgment of the Pike Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Della M. Justice
Pikeville, Kentucky
Pamela May
Pikeville, Kentucky
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