JONATHAN E. HODES, M.D. V. DEBRA IRELAND
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
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JONATHAN E. HODES, M.D .
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2005-CA-002095-MR
JEFFERSON CIRCUIT COURT NO. 01-CI-002245
DEBRA IRELAND
AND
APPELLEE
2007-SC-000823-DG
DEBRA IRELAND
V.
CROSS-APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2005-CA-002095-MR
JEFFERSON CIRCUIT COURT NO. 01-CI-002245
JONATHAN E. HODES, M.D.
CROSS-APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING
In this medical negligence action involving spinal surgeries performed
upon plaintiff Debra Ireland in 2000 by defendant neurosurgeon Jonathan E .
Hodes, M.D ., after a week-long trial in September of 2005 judgment was
entered pursuant to a 10-2 defense verdict. On Ms. Ireland's appeal presenting
three evidentiary issues, the Court of Appeals panel perceived no abuse of trial
court discretion on two of the issues but reversed regarding the third issue and
remanded for retrial. Having granted both the motion by Dr. Hodes for
discretionary review and Ms. Ireland's cross-motion, upon careful
consideration of the record we perceive no abuse of the trial court's sound
discretion and therefore reverse the Court of Appeals opinion and reinstate the
Jefferson Circuit Court judgment entered on the jury verdict.
Tragically, the 2000 spinal decompression surgery left Ms. Ireland with
cauda equina syndrome . The question at trial thus was whether that result
was the product of medical negligence, which was the opinion of Ms. Ireland's
expert, orthopedic surgeon Dr. Robert Winter. In contrast, Dr. Hodes and his
expert Stanford University Professor of Neurosurgery Dr. Lawrence Shuer
testified that the surgery was performed well within the standard of care and
that cauda equina syndrome was a known and accepted risk of the
decompression surgery as recognized in the informed consent signed by Ms.
Ireland. Although Ms . Ireland continues to contest the admission of her
informed consent into evidence, on that point we agree with the Court of
Appeals panel's assessment of the trial court's exercise of sound discretion in
that evidentiary ruling regarding relevance to the defense.
We also perceive no abuse of trial court discretion regarding the two
remaining points of dispute, both of which involve cross-examination of Dr .
Winter during his hours of testimony criticizing the allegedly "not sufficiently
extensive" spinal decompression surgery. The sole issue upon which the Court
of Appeals panel reversed and remanded for retrial related to disciplinary
charges involving Dr. Winter's licenses to practice medicine in Minnesota and
Wisconsin. Relying primarily upon Morrow v. Stivers, 836 S.W.2d 424 (Ky.
App . 1992), the appellate panel opined that the cross-examination concerned
"a collateral matter that is irrelevant to an issue in the case." The current
circumstances, though, significantly differ from Morrow, in which the trial
court did not permit proof regarding discipline imposed upon the plaintiff's
dental expert for allegedly passing hepatitis to patients . Here, by contrast, the
permitted cross-examination was grounded upon witness credibility and
interpretations of what constitutes the "practice of medicine" and licensure
"restrictions."
Dr. Winter's testimony during direct examination effectively opened the
door to the ten minutes of cross-examination regarding his Minnesota and
Wisconsin medical licenses under KRE 607, 608(b) and 611 (b) as relevant
evidence on cross-examination involving witness credibility and "character for
untruthfulness" as to the status of these licenses and the expert's alleged full
retirement over a decade earlier. Thus, when Dr. Winter on direct examination
testified not only that he was licensed to practice medicine in Minnesota and in
fact had done so within a week of his September 2005 trial testimony but also
that he "never had any restrictions" on his medical license, the trial court
within sound discretion permitted cross-examination concerning the expert's
Minnesota and Wisconsin medical licenses as impacted by previous
disciplinary actions and purported retirement . In fact, as reflected in Dr.
Winter's 1995 "Stipulation" resolving a pending formal complaint before the
Wisconsin Medical Examining Board based upon 1993 disciplinary action
against him in his home state of Minnesota, the Wisconsin Board agreed to
dismiss the disciplinary complaint upon then-62-year-old Dr. Winter's
assurance that he was "fully retiring from the practice of medicine and surgery
in the state of Minnesota effective 6/1/95 and will not be engaging in the
practice of medicine or surgery after the date of his retirement" plus the
voluntary surrender of his registration (which he further promised never to
attempt to renew) to practice medicine and surgery in Wisconsin . Although
redirect examination established that the 1993 probationary restrictions upon
Dr. Winter's Minnesota license were related to sexual misconduct with a female
patient in the 1980s and had been lifted upon his completion of a year of
counseling plus payment of a fine prior to restoration to "unconditional status"
in March of 1995, the trial court did not abuse sound discretion in permitting
the cross-examination in this context under all the circumstances of this case.
Similarly, the trial court acted well within sound discretion in permitting
relevant cross-examination concerning unrelated spinal surgical complications
experienced by Dr. Winter in his surgical practice of orthopedics. In that
regard, we again agree with the Court of Appeals panel.
The Court of Appeals opinion reversing and remanding is reversed and
the Jefferson Circuit Court judgment entered on the jury verdict hereby is
reinstated .
All sitting. All concur.
COUNSEL FOR APPELLANT/ CROSS-APPELLEE:
Donald Kenneth Brown, Jr.
Joseph Charles Klausing
Katherine K. Vesely
O'Bryan, Brown 8s Toner
1500 Starks Building
455 South Fourth Avenue
Louisville, KY 40202
COUNSEL FOR APPELLEE/CROSS-APPELLANT
Douglas H. Morris, II
Lea A. Player
Morris 8v Player
5924 Timber Ridge Drive, Suite 202
P. 0 . Box 1329
Prospect, KY 40059
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