ABBY ELLIS BY AND THROUGH HER GUARDIAN HER SISTER PHYLLIS HODGES v. GERALD RIGHTMYER RICARDO MADDELA AND HON CHARLES BOTELER JR SPECIAL JUDGE

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Court of Appeals of Kentucky.

ABBY ELLIS, BY AND THROUGH HER GUARDIAN, HER SISTER, PHYLLIS R. HODGES v. GERALD RIGHTMYER, M.D.;  RICARDO MADDELA, M.D.;  AND HON. CHARLES W. BOTELER, JR., SPECIAL JUDGE

NO. 2007-CA-000791-MR

Decided: January 15, 2010

BEFORE:  NICKELL, MOORE AND STUMBO, JUDGES. BRIEF FOR APPELLANT:  Chad E. Groves Henderson, Kentucky BRIEF FOR APPELLEE, GERALD RIGHTMYER, M.D.:  David S. Strite Mark E. Hammond Louisville, Kentucky BRIEF FOR APPELLEE, RICARDO B. MADDELA, M.D.:  Ronald G. Sheffer Derek P. O'Bryan Louisville, Kentucky

Abby Ellis (Ellis), by and through her guardian, her sister, Phyllis R. Hodges (Hodges), has appealed from the February 26, 2007, judgment of the Henderson Circuit Court conforming to a unanimous jury verdict dismissing her medical malpractice claims against Gerald Rightmyer, M.D. (Dr. Rightmyer) and Ricardo B. Maddela, M.D. (Dr. Maddela).   For the following reasons, we affirm.

Overview

At the trial of this medical malpractice action, Ellis contended Drs. Rightmyer and Maddela breached the standard of care in their course of treating her illness.   She alleged their decision to perform laparoscopic surgery without first attempting to improve her nutrition and overall health resulted in a catastrophic neurological event which left her with permanent brain impairment.   In essence, she contended she was too sick for surgery.   In contrast, Drs. Rightmyer and Maddela argued Ellis's nutrition was never an issue as she presented no signs or symptoms of malnourishment nor did her self-reported medical history indicate a need to investigate such a diagnosis.   Further, her blood work did not indicate she was suffering from poor nutrition.   Rather, the doctors asserted Ellis suffered from Wernicke-Korsakoff Syndrome, a disease they were unable to diagnose based on the symptoms Ellis was having or the medical history they were provided.   They asserted the syndrome caused Ellis's neurological event and resulting injuries.

Following an eight-day trial, the jury found for the defendant doctors on all counts.   Ellis now raises six allegations of error and requests reversal and remand for a new trial.   She contends the trial court abused its discretion by:  1) permitting the introduction of evidence in violation of KRE  Double 403;  2) limiting her expert's trial testimony but failing to limit testimony from Drs. Rightmyer and Maddela's experts;  3) excluding evidence;  4) permitting testimony regarding collateral source payments received by Ellis;  5) preventing her counsel from commenting on evidence during closing argument;  and 6) failing to find her indigent in regard to paying the taxable costs of the action even though she was found indigent for purposes of this appeal.   Having thoroughly reviewed the record and finding no error, we affirm.

Procedural and Factual History

On October 23, 2001, Ellis was admitted to Community Methodist Hospital in Henderson, Kentucky, complaining of weight loss, nausea and vomiting.   During a ten-day hospitalization, Dr. Rightmyer treated her for hypothyroidism Double and evaluated her for possible gallbladder issues.   It was discovered during this hospitalization that Ellis had voluntarily and unilaterally discontinued her thyroid replacement medication, so Dr. Rightmyer prescribed and administered the drug.   Dr. Rightmyer also ordered a surgical consult with Dr. Maddela regarding Ellis's gallbladder.   Dr. Maddela determined Ellis was not a surgical candidate at that time.   Ellis was subsequently discharged and ordered to return for a follow-up visit in five days' time.

Two days later, Ellis returned to the emergency room with complaints of continued nausea, vomiting and weight loss.   She was again admitted to the hospital.   Dr. Rightmyer diagnosed Ellis as suffering from acute cholecystitis, an acute and chronic disease of the gallbladder, and ordered a second consultation with Dr. Maddela.   Dr. Maddela concurred with Dr. Rightmyer's diagnosis and recommended a laparoscopic cholecystectomy to remove the troublesome gallbladder. Double On November 7, Dr. Maddela surgically removed Ellis's gallbladder without complication, and the earlier diagnosis of acute cholecystitis was confirmed both intraoperatively and by an independent pathologist.   Ellis appeared to be recovering normally, but on November 13, while still confined to the hospital, she suffered a neurological event resulting in permanent brain damage.   She remains incapacitated.

On December 18, 2002, Ellis filed the instant complaint against Dr. Rightmyer, Dr. Maddela, Dr. Michael S. Mayron,Double and Community Methodist Hospital, Inc. Therein, she alleged each of the named defendants deviated from the appropriate standard of care while treating her, resulting in her permanent physical injuries and incapacitation.   Following extensive discovery, the trial court granted summary judgment in favor of Dr. Mayron and Community Methodist Hospital. Double The action continued to trial with respect to the remaining defendants.

At trial, Ellis contended the defendant doctors deviated from the appropriate standard of care and thereby caused her injuries.   Her argument centered on her contention that since she suffered from severe hypothyroidism, no surgery should have been performed until after her physical health improved and her thyroid level was raised.   The surgery, she claimed, was the triggering event for the neurological event which ultimately left her incapacitated.

Drs. Rightmyer and Maddela argued they did not deviate from the standard of care.   They contended Ellis's neurological event was triggered by Wernicke-Korsakoff Syndrome, a condition caused by a vitamin B1 (also known as thiamine) deficiency.   Expert testimony was introduced indicating Ellis likely developed Wernicke-Korsakoff as a result of carbohydrate loading from the intravenous fluids she received during her hospitalization coupled with her nearly persistent vomiting.   Dr. Marvin Rozear, Dr. Rightmyer's neurology expert, indicated Wernicke-Korsakoff is typically seen in alcoholics and drug users and can only be diagnosed when an accurate history is provided by the patient. Double Further, he opined that those suffering from the syndrome are typically malnourished, but Ellis exhibited no clinical indications she was suffering from such a condition.   Thus, he concluded Dr. Rightmyer would have been unable to predict Ellis would be suffering from the disease.

At the conclusion of an eight-day trial, and after deliberating for less than forty-five minutes, the jury returned a unanimous verdict in favor of Drs. Rightmyer and Maddela and thus never reached the issue of damages.   The trial court entered judgment accordingly and this appeal followed.

Analysis

I. Introduction of Evidence in Violation of KRE 403

Ellis first contends the trial court abused its discretion in permitting the introduction of several pieces of evidence including:  drug paraphernalia located in her residence, testimony that a third party possessed her automobile and cellular telephone at the time of her medical event, testimony regarding personal property missing from her home following her medical event, and evidence regarding Ellis's workplace misfeasance and malfeasance prior to her hospital admission. Double She contends the totality of this evidence prejudiced the jury against her and forced them to believe she was a drug user, drug dealer, or an otherwise “bad person.”   Thus, she argues it should have been excluded under KRE 403 as the probative value of the evidence was outweighed by its prejudicial effect. Double Drs. Rightmyer and Maddela contend the evidence complained of was properly admitted to rebut assertions made by Ellis or support their own position.

A trial court is invested with broad discretion in evidentiary matters.   Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 680 (Ky.2005).   The decision to admit evidence will not be disturbed on appeal unless an abuse of discretion is demonstrated.  Welsh v. Galen of Virginia, Inc., 128 S.W.3d 41, 51 (Ky.App.2001).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”   Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

Contrary to Ellis's assertions, the evidence complained of was relevant to issues in the case.   The primary issue presented to the jury was whether the defendant doctors breached the standard of care in treating Ellis's illness.   Each side presented a different theory of the cause of Ellis's neurological event and resulting incapacitation.   Ellis argued undergoing laparoscopic surgery triggered the chain of events because of her hypothyroidism, while Drs. Rightmyer and Maddela each contended Wernicke-Korsakoff and Ellis's resulting decreased thiamine levels were the underlying cause.   Thus, it was incumbent on the jury to decide the cause of Ellis's injuries between these two conflicting medical theories, and thereafter determine whether the physicians breached the standard of care.   This determination required Drs. Rightmyer and Maddela to introduce evidence supporting their theory of the case, with an important and necessary part of that theory being whether the syndrome could reasonably have been diagnosed.

Although Ellis strongly argues to the contrary, we are unable to locate any statement within the expert testimony that Wernicke-Korsakoff is caused by drug or alcohol use.   Rather, our review of the testimony reveals the experts opined the syndrome was normally found in patients having a history of using such substances and that obtaining an accurate history is vital to diagnosing the disease.   Thus, the challenged evidence was relevant to the issue of whether Ellis was at a higher risk to suffer from the disease and whether her physicians were properly made aware of her medical history.   The testimony was not elicited to persuade the jury that Ellis was a drug user or abuser but rather to support the physicians' argument that under the facts as they knew them to be it would have been impossible for them to have diagnosed Ellis as suffering from Wernicke-Korsakoff.   The trial court correctly found the drug paraphernalia evidence to be admissible because it was central to the jury's charge to understand the different diagnoses, decide the actual causation of Ellis's injuries, determine whether the physicians were properly informed, and decide whether the physicians breached the standard of care.   The prejudicial effect of this evidence, if any, was clearly outweighed by its probative value.

Further, evidence of Ellis's workplace misfeasance or malfeasance was not introduced for the nefarious reasons she suggests.   It was not introduced to paint a picture of her as a bad person or an embezzling employee.   Rather, this evidence was directly related to her claimed damages for lost earnings.   Clearly, in a medical malpractice case such as the one at bar, where the injured party seeks compensation for her loss of future earning capacity, her current salary and work history play an important role in calculating the amount of such damages.   In fact, Ellis's own economic and vocational expert, Mr. John Tierney, agreed that such facts would impact his calculations of Ellis's lost earnings, but admitted he was unaware of Ellis's history when he evaluated her work-life expectancy and earnings.   Because this information would be critical to the jury's determination of damages, we are unable to conclude the trial court abused its discretion in admitting the evidence regarding Ellis's work history.

Although Ellis alleges the trial court should have excluded evidence related to her automobile and cellular telephone being in another person's possession and testimony regarding missing items of personal property from her home, she fails to indicate how she was prejudiced by the admission of this evidence, nor how the probative value of the evidence was outweighed by its alleged prejudicial effect.   We will not consider bare allegations of error which are unsupported by evidence or argument on appeal.  Stewart v. Jackson, 351 S.W.2d 53, 54 (Ky.1961) (citations omitted).

All of this evidence was likewise important to show possible changes in Ellis's demeanor and behavior.   It was pointed out by the defense that marked changes in personality are often seen in those suffering from Wernicke-Korsakoff.   Ellis's family testified she had been very close to her family but had begun to withdraw from them in the years prior to her hospitalization.   Her sister indicated Ellis's “personality change” was evident in her cutting off contact with her family, refusing to answer the phone when they called or come to the door when they attempted to visit.   The family found the changes to be “strange” and suspected drug use could have played a factor in her withdrawal.   Ellis had not seen or spoken to many of her family members for more than a year prior to her hospitalization, and her family was unaware she had been admitted to the hospital until facility administrators contacted them on November 13, 2001, following the neurological event.   Her family members were unaware of Ellis's workplace performance difficulties.   Thus, as the evidence complained of made the diagnosis of Wernicke-Korsakoff more probable, it was properly admitted for that purpose, and any prejudicial effect was outweighed by the probative value.

II. Limitation on Expert Testimony

Ellis next contends the trial court abused its discretion in excluding portions of trial testimony from Dr. Robert Resnick, one of her expert witnesses, as constituting previously undisclosed opinions.   Our review of the record reveals no support for Ellis's argument.

Ellis properly disclosed, pursuant to CR  Double 26.02, that she expected to call Dr. Resnick as an expert witness at trial and anticipated he would testify about the deviation from the appropriate standard of care by Drs. Rightmyer and Maddela and that such deviation was a proximate cause of Ellis's injuries.   Dr. Resnick submitted his report and gave a discovery deposition wherein he opined Ellis's condition resulted from trauma associated with the laparoscopic surgery and her hypothyroidism.   Ellis contends Dr. Resnick's trial testimony was consistent with his discovery deposition and that all of his opinions offered for trial were previously disclosed.   However, during his evidentiary deposition, Dr. Resnick offered previously undisclosed opinions and criticisms regarding psychiatric and/or psychological care, weight loss, liver problems, vitamin deficiency and malnutrition.

Following a hearing, the trial court ordered that these previously undisclosed opinions be redacted from the evidentiary deposition because of Ellis's failure to comply with the mandates of CR 26.02.   We have scoured the record and find no indication of these opinions being disclosed prior to the taking of Dr. Resnick's evidentiary deposition.   Generalized statements regarding broad areas about which an expert may testify do not apprise the adverse party of the information necessary to prepare for trial and satisfy neither the letter nor the spirit of CR 26.02(4)(a).  Clephas v. Garlock, 168 S.W.3d 389, 393-94 (Ky.App.2004).  “The discovery of the substance of an expert witness's expected testimony is essential to trial preparation.”  Id. The proper sanction for violating CR 26.02 is excluding the proposed expert testimony.  Id. See also Patel v. Gayes, 984 F.2d 214, 217 (7 th Cir.1993) (construing federal analog to CR 26).   Thus, the trial court correctly excluded Dr. Resnick's testimony based on Ellis's failure to comply with discovery.

III. Exclusion of Evidence

Ellis's third allegation of error centers on the trial court's refusal to admit testimony or information regarding reports from the Centers for Disease Control (CDC) concerning thiamine depletion and administration in patients.   She contends this evidence should have been admitted because it was relevant to the issue of whether her physicians breached the standard of care.   However, our review of the record indicates Ellis failed to introduce such reports and/or testimony during her case-in-chief.   Rather, she attempted to cross-examine Dr. J. Kelly Wright, one of Dr. Maddela's expert witnesses, about the content of reports which had not previously been introduced, identified, or authenticated.   Because Dr. Wright did not reference nutrition or thiamine on direct examination, the trial court correctly found Ellis's line of cross-examination was beyond the scope of the direct examination and should be excluded under KRE 611. Double In addition to being beyond the scope of direct examination, Ellis failed to authenticate the purported CDC articles as required of all documentary evidence under KRE 901, and also failed to make any effort to lay the proper foundation for the admission of the documents.   Finally, Dr. Wright testified he was an expert on surgery, not on nutrition or thiamine, and was unable to answer any questions regarding CDC reports with which he was unfamiliar, had not read, and the subject matter was beyond his area of expertise.   Thus, we hold the trial court did not abuse its discretion in limiting Ellis's cross-examination on the subject of these reports.   Likewise, as Ellis did not attempt to admit the CDC reports into evidence except by avowal, and the trial court was never asked to rule on their admissibility, her contention that the trial court erroneously refused to admit the reports is wholly without merit.   It is axiomatic that a trial court must be given the opportunity to rule before an alleged error will be reviewed on appeal.  Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976).

IV. Evidence of Collateral Source Payments

Fourth, Ellis argues the trial court erred in overruling her objection to testimony being elicited from Mr. Tierney regarding Social Security disability benefits.   She argues the testimony violated the collateral source rule Double and improperly swayed the jury's deliberations.   We disagree.

Ellis relies on Transit Authority of River City v. Vinson, 703 S.W.2d 482 (Ky.App.1985), in support of her contention that Social Security disability payments fall under the collateral source rule.   However, her reliance is misplaced.   In Hackworth v. Hackworth, 896 S.W.2d 914, 916 (Ky.App.1995), this Court noted the statute that made collateral source payments admissible, KRS  Double 411.188(3), had been declared unconstitutional by our Supreme Court and the law remained unsettled regarding whether such payments were to be considered payments made by a collateral source and thus excluded from evidence.   The Hackworth Court refused to clarify the law, instead reserving the determination for another day.   Today is not that day.

Rather, we hold that the singular, passing mention of Social Security disability benefits during an eight-day trial cannot reasonably be said to have swayed the jury's deliberations.   This is especially evident in light of the fact that the jury was never required to fix damages as it found no liability on the part of the treating physicians.   There was no reversible error.

V. Limitation of Closing Argument

Next, Ellis argues the trial court abused its discretion by limiting counsel's closing argument and prohibiting counsel from commenting on expert testimony that had previously been admitted into evidence without objection.   Ellis asserts she was precluded from commenting on trial testimony from one of her experts, Dr. Jon Glass.   We disagree.

During closing argument, while commenting on testimony elicited from Dr. Glass, Ellis's counsel reiterated that Dr. Glass did not believe Ellis suffered from Wernicke-Korsakoff Syndrome but rather believed the cause of her injuries was the trauma of surgery, exacerbated by severe hypothyroidism.   Counsel then began to discuss a hypothetical question she had posed to Dr. Glass during his evidentiary deposition.   An objection was lodged and a bench conference ensued.   After hearing arguments from counsel, the trial court stated he had previously admitted Dr. Glass's expert opinion (that Ellis did not suffer from Wernicke-Korsakoff) for the limited purpose of rebutting Dr. Rightmyer and Dr. Maddela's theory to the contrary.   In contrast, the trial court found counsel was impermissibly attempting to use Dr. Glass's answer to the hypothetical question to raise a new theory of liability-that Ellis suffered from Wernicke-Korsakoff Syndrome, the physicians breached the standard of care in failing to diagnose the illness, and Ellis's injuries naturally flowed from that failure.   The trial court found Dr. Glass did not express this theory as one of his disclosed expert medical opinions and no other evidence had been produced to support such a conclusion.   Thus, the objection was sustained and counsel was not allowed to explain her version of the hypothetical question.   Our review of the record supports the trial court's determination.

To say the trial court prevented Ellis's counsel from commenting on Dr. Glass's testimony is erroneous.   Rather, it ruled she was prohibited from advancing a new theory of liability that was unsupported by the evidence adduced at trial.   At no time did Dr. Glass opine that Dr. Rightmyer or Dr. Maddela deviated from the appropriate standard of care by failing to diagnose Wernicke-Korsakoff Syndrome nor that the illness was the cause of Ellis's neurological event.   In fact, Dr. Glass strenuously testified Ellis did not suffer from the disease but that the cause of the neurological event was the trauma induced by surgery in a patient suffering from hypothyroidism.   Thus, the trial court properly limited Ellis's argument on a new theory of liability advanced at the eleventh hour.

Further, Ellis's reliance on Owensboro Mercy Health System v. Payne, 24 S.W.3d 675 (Ky.App.2000), for the proposition that she should have been allowed to read excerpts from Dr. Glass's deposition or replay portions of the videotape thereof, is misplaced.   While we agree with the general rule set forth in Payne, that a party may use such videotapes in closing argument, Ellis has failed to grasp the import of that decision.   A panel of this Court held the decision to allow the playing of selected portions of trial testimony fell within the sound discretion of the trial court.   The opinion went on to caution against the use of such evidence if it would present evidence out of context and confuse the jury, if it would overemphasize one party's position, or if the portion sought to be utilized would misrepresent the evidence.   Id. at 678-79.   Here, the testimony sought to be emphasized could have easily misled the jury into believing Dr. Glass had offered an expert opinion which he had not in fact given.   Our review of the record indicates the trial court correctly found the answer to the hypothetical question was not a disclosed expert opinion, was unsupported by the evidence, and constituted a new theory of liability.   Therefore, the trial court properly acted within its discretion in disallowing Ellis's proposed use and slant of this testimony during closing argument.

VI. Indigency Status

Finally, Ellis contends the trial court abused its discretion in failing to find her indigent with respect to paying the taxable costs of the instant action, yet allowing her to proceed in forma pauperis for purposes of this appeal.   We again disagree with Ellis's contention.  KRS 453.190(3) specifically requires one wishing to proceed without paying costs to make such application by motion accompanied by an affidavit setting forth the reasons he or she is unable to pay the costs or fees. Double No such motion or affidavit exists within the record on appeal, and in contravention of CR 76.12(4)(c)(v), Ellis fails to indicate where in the record such a request was made. Double

Although we are not required to do so, we have scoured the record and have been unable to locate any motion by Ellis asking the trial court to declare her indigent for purposes of trial.   The sole reference to such a motion comes in an order entered on March 30, 2007, granting Ellis in forma pauperis status for purposes of appeal but denying her motion to so proceed in the underlying action.   If the required motion and affidavit were filed in the trial court seeking pauper status for the underlying action, they do not appear in the record. Double It is the duty of the appellant to ensure the record is complete and contains all of the evidence necessary to facilitate adequate appellate review, and in the absence of a complete record we must assume the omitted portions support the trial court's ruling.  Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky.1985).   Ellis's failure to follow the mandates of CR 76.12 and to provide us with a complete record is fatal to her allegation of error.

For the foregoing reasons, the judgment of the Henderson Circuit Court is affirmed.

ALL CONCUR.

NICKELL, JUDGE: