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Menschik v. Heartland Regional Medical Center

Court of Appeals of Missouri, Western District

July 18, 2017



          Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge


         Lisa Menschik (Menschik) appeals from a judgment for the Respondents on her claims of medical malpractice. Menschik argues that the trial court erred in denying admission of certain exhibits and limiting questioning of a defense expert, in making comments from the bench when ruling on objections, and in prohibiting testimony from her expert relating to the standard for performing a "stat" MRI. Finding no error, we affirm.

         Factual and Procedural Background

         On March 22, 2010, Menschik presented at Heartland Clinic Comprehensive Family Care in St. Joseph complaining of severe pain radiating into her thoracic spine, chest, arms, and legs, as well as dysphagia. Menschik was seen by Dr. Robert Kempton, who took her history and ordered chest x-rays, laboratory testing, and CT scans of her cervical and thoracic spine and chest. Dr. Kempton sent Menschik to the radiology department at Heartland Regional Medical Center (HRMC) to undergo the CT scans. She was admitted to HRMC the same day for further treatment by Dr. Kempton after initial testing revealed a markedly elevated white blood count.

         At HRMC, Menschik underwent radiological studies performed by Dr. Jose Alvarez. Dr. Alvarez interpreted Menschik's cervical CT scan as revealing prevertebral soft tissue swelling indicating possible abscess formation; however, metal implants in Menschik's neck from a previous procedure created artifacts that prevented him from accurately seeing on the CT scan an area of swollen tissue where a spinal epidural abscess was forming. Dr. Alvarez also interpreted Menschik's neck CT scan as showing a collection of fluid starting slightly above her Adam's apple and continuing down into her chest area, which he concluded to be a retrotracheal and retropharyngeal abscess, though he was unable to determine if the infection "tracked" from the neck to the chest or vice versa.

         After learning of Dr. Alvarez's interpretations, Dr. Kempton requested consultations from other doctors including Dr. Robert Zink (a cardiothoracic surgeon), Dr. David Kropf (an otorhinolaryngologist, or ENT), and Dr. Brent Peterson (a neurosurgeon). Dr. Kropf and Dr. Zink examined Menschik that night and recommended surgery to drain the retrotracheal and retropharyngeal abscesses, while Dr. Peterson waited until the following morning to see her. Menschik underwent surgery to drain the abscesses followed by a second surgery to drain an anterior chest wall abscess and then finally a tracheostomy all performed by Dr. Zink and Dr. Kropf in the early hours of March 23. Menschik's condition deteriorated following her surgery and she began to experience decreased sensation and progressive weakness in her lower extremities, eventually becoming unable to move her legs.

         Dr. Peterson was notified of Menschik's deteriorating condition at approximately 6:45 a.m., prompting him to order an MRI. He received those results at 10:51 a.m. The MRI indicated a large disc herniation at C6-C7 with edema or epidural extension of an abscess that was compressing her spinal cord. He recommended surgery to clear the infection that was compressing Menschik's spinal cord, removal of the anterior cervical plates at the C4-C5 and C5-C6 levels, and an anterior cervical discectomy and fusion at the C6-C7 level. Surgery began at 3:56 p.m. and was completed without incident. Menschik was required to undergo physical therapy but eventually regained the ability to walk, though some complications remained.

         Menschik filed suit against Dr. Alvarez, Dr. Kropf, and Dr. Peterson claiming that they had individually and cumulatively been responsible for the delay in the diagnosis and eventual surgery to drain her epidural abscess and that, as a result, she suffers present-day deficiencies. Specifically, she claimed that Dr. Alvarez had been negligent in failing to inform Dr. Kempton regarding the possibility that the retropharyngeal abscess was tracking into her spinal epidural space or that an MRI should be considered to exclude the possibility of a spinal epidural abscess; that Dr. Kropf was negligent in failing to obtain a complete medical history or perform an adequate neurological exam during the evening of March 22; and that Dr. Peterson was negligent for failing to conduct a neurological exam in the early morning of March 23, failing to order a "stat" MRI as opposed to a routine MRI on the morning of March 23, and delaying surgery until later in the day to allow for his "A team" to assemble.[1] The case proceeded to trial beginning on November 4, 2015. The jury returned verdicts for the Respondents. Menschik now appeals.

         Testimony of Dr. Paul Young

         Menschik's first point raised on appeal concerns her effort to impeach the testimony of defense expert Dr. Paul Young, a neurosurgeon from St. Louis, who testified to the standard of care owed Menschik and whether that standard had been breached by the Respondents. At trial, Menschik sought to show that Dr. Young harbored a bias against medical malpractice plaintiffs resulting from being a defendant in multiple such lawsuits during his career. She also attacked Dr. Young's character for truth and veracity based on Menschik's belief that he had understated the total number of medical malpractice lawsuits that had been brought against him. To that end, there was extensive cross-examination into Dr. Young's history of medical malpractice suits from his former practice in California, his failed attempt to obtain a license to practice medicine in Colorado, and the details surrounding the expiration of his California medical license.[2] At the conclusion of the cross-examination, Menschik moved to admit two exhibits: an Accusation filed against Dr. Young by the California Board of Medical Quality Assurance seeking to discipline his license that included allegations related to malpractice suits brought by three former patients (Plaintiff's Exhibit 145), and the subsequent Decision and Stipulation entered into between Dr. Young and the California Board of Medical Quality Assurance in which Dr. Young agreed not to renew his California medical license and to forgo reapplication for five years in exchange for the withdrawal of the Accusation (Plaintiff's Exhibit 146). The trial court denied the admission of both documents.

         In her first point on appeal, Menschik claims two distinct errors relating to Dr. Young's testimony: (A) the trial court erred in denying admission of Plaintiff's Exhibits 145 and 146, and (B) the trial court erred in denying Menschik the opportunity, on recross-examination, to question Dr. Young regarding the details of the medical malpractice allegations included in Plaintiff's Exhibits 145 and 146.[3] We review the decision of a trial court to admit or exclude evidence for an abuse of discretion. Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015). "An evidentiary ruling is an abuse of discretion only if it is 'clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.'" Reed v. Kansas City Missouri School District, 504 S.W.3d 235, 240 (Mo. App. W.D. 2016) (quoting Cox, 473 S.W.3d at 114)). "Moreover, in reviewing the exclusion of evidence in general, this court is not bound 'by the rationale for the objection made or the reasons expressed by the trial court for excluding the evidence.'" Hemeyer v. Wilson, 59 S.W.3d 574, 580 (Mo. App. W.D. 2001) (quoting Aliff v. Cody, 26 S.W.3d 309, 314–15 (Mo. App. W.D. 2000). Consequently, we will uphold the trial court's ruling "when there exists any recognizable ground on which the trial judge could have rejected the evidence." Wilson, 59 S.W.3d at 580 (quoting Cody, 26 S.W.3d at 315).

         A. Plaintiff's Exhibits 145 and 146

         We begin our analysis with the trial court's ruling denying admission of Plaintiff's Exhibits 145 and 146. Menschik argues that the trial court erred because these exhibits were admissible to establish Dr. Young's bias, impeach his character for truth or veracity as prior inconsistent statements, and as contradiction evidence. We will consider each of these arguments individually.

         i. Bias

         It is well settled under Missouri law that a witness may be impeached on cross-examination through the use of evidence demonstrating the witness's bias, interest, or prejudice. Mitchell v. Kardesch, 313 S.W.3d 667, 676 (Mo. banc 2010). A witness's bias or interest toward a party is never irrelevant and a witness may be cross-examined on any point, whether material to the substantive issue of the trial or not, if it shows the existence of bias. Id. In the present case, Menschik attempted to demonstrate that Dr. Young held a bias against medical malpractice plaintiffs generated from having been repeatedly sued for committing medical malpractice himself. In order to prove the existence of this bias, Menschik questioned Dr. Young at length regarding these prior lawsuits. On appeal, she argues that Plaintiff's Exhibits 145 and 146 should have been admitted as further proof of Dr. Young's bias.

         At trial, Dr. Young initially asserted that he had only been sued five times for medical malpractice. However, Menschik was permitted, over Respondent's objection, to question Dr. Young regarding an interrogatory response filed in a malpractice case brought in California in which he stated that he had previously been sued nine times. Dr. Young did not deny this disparity but sought to explain it by stating that many of those suits had been brought because an ex-partner he had worked with in California, named Dr. George Stevenson ("Stevenson"), had set out to destroy him by contacting former patients and encouraging them to file lawsuits. Dr. Young stated that those actions had failed to proceed anywhere and maintained that he was aware of only five lawsuits that he felt fit the description of a malpractice action that, in his view, personally involved him.

         Menschik also questioned Dr. Young regarding statements made in his application to practice medicine in Colorado. This application was completed after the interrogatory in the California case had been filed and included additional lawsuits bringing the number of medical malpractice cases against him to fourteen. The application further acknowledged that his malpractice insurance had been canceled due to the number of malpractice lawsuits filed against him. Menschik continued questioning Dr. Young regarding the various medical malpractice cases that had been brought against him over the years with the number eventually rising to a total of twenty-three. At no point did Dr. Young deny being involved in any of these lawsuits, stating instead that he was "sure his name had appeared on many things filed against the various hospitals he had worked for that never reached his level of attention" but that "five was the number that he felt actual responsibility for."

         On appeal, Menschik argues that Plaintiff's Exhibits 145 and 146, which disclosed the details surrounding three of the lawsuits discussed on cross-examination, should have been admitted as additional evidence of Dr. Young's bias. This argument is without merit given that Menschik's theory of Dr. Young's bias was not based on the specifics of a particular prior lawsuit or on a connection or similarity between Menschik's case and any of the prior lawsuits but instead was premised on an alleged prejudice against plaintiffs in medical malpractice cases in general derived from the volume of lawsuits brought against him over the years.[4] Therefore, the specific details of the individual malpractice cases laid out in these exhibits were irrelevant to Menschik's theory of bias. State v. Roper, 136 S.W.3d 891, 899 (Mo. App. W.D. 2004) (Trial court did not err in denying admission of evidence offered to show bias of witness after defendant failed to show how evidence was relevant to establishing that bias.); Carlisle v. Kroger Co., 809 S.W.2d 23, 27 (Mo. App. E.D. 1991) ("[I]mmaterial and incompetent evidence may not be brought before the jury under the guise that it impeaches or discredits the witness." (quoting Weatherly v. Miskle, 655 S.W.2d 842, 844 (Mo. App. E.D. 1983)). In addition, to the extent that these exhibits could provide further evidence of the number of times Dr. Young had been sued for malpractice, which is relevant under Menschik's bias theory, these exhibits were cumulative as Menschik herself admits that the cases listed in these exhibits were among those she had already questioned Dr. Young about during cross-examination.[5] See Benedict v. Northern Pipeline Const., 44 S.W.3d 410, 425–26 (Mo. App. W.D. 2001) (Trial court did not err in denying admission of a list of cases in which defendant's expert witness had testified which was found to be clearly cumulative given that Plaintiff questioned the expert extensively about the list on cross examination.); Burns v. Elk River Ambulance, Inc., 55 S.W.3d 466, 483 (Mo. App. S.D. 2001) (Trial court did not err in denying admission of ambulance bill given that witness testified to the contents of the bill and it was thus reasonable for the trial court to consider the bill to be cumulative.). Destin v. Sears, Roebuck and Co., 803 S.W.2d 113, 116 (Mo. App. W.D. 1990) (Trial court did not err in excluding results of thermography test and testimony of chiropractor on those results even if chiropractor's testimony was relevant and admissible because testimony of plaintiff and plaintiff's surgeon made chiropractor's testimony cumulative.). Consequently, we cannot find it was an abuse of discretion for the trial court to exclude this evidence.

         ii. Prior Inconsistent Statements

         We next consider Menschik's argument that Plaintiff's Exhibits 145 and 146 were admissible as prior inconsistent statements. We begin by noting that this is not an argument that Menschik raised to the trial court when seeking to admit these exhibits. This presents a considerable dilemma as "[a] point is preserved for appeal only if it is based on the same theory presented at trial." Central Trust Bank v. Graves, 495 S.W.3d 797, 801 (Mo. App. W.D. 2016) (quoting Blanks v. Fluor Corp., 450 S.W.3d 308, 383 (Mo. App. E.D. 2014)). As such, parties are not permitted to advance new theories for the admission of evidence on appeal, nor are they allowed to alter or broaden the theories raised before the trial court. Id. The importance of this prohibition can easily be seen in the present case where there is no indication on the face of the trial transcript what inconsistencies in Dr. Young's testimony Menschik would have sought to impeach using these exhibits. Instead, we must rely on Menschik's argument on appeal, which points to a single remark in Dr. Young's testimony that she claims she would have presented to the jury as inconsistent with a statement contained in Plaintiff's Exhibits 145 and 146. We are thus being asked to convict the trial court of an error that was not put before it to decide; something that we are generally loathe to do. Id. Nevertheless, we will deign to consider the merits of Menschik's argument as we find that Menschik has wholly failed to offer an explanation for how the foundational requirements for use of a prior inconsistent statement were met.

         It is a basic legal principle that a witness's credibility may be impeached based on the use of prior inconsistent statements. Mitchell v. Kardesch, 313 S.W.3d 667, 676 (Mo. banc 2010). However, it is necessary that a proper foundation be laid before extrinsic evidence may be used to impeach in this manner. Aliff v. Cody, 26 S.W.3d 309, 318 (Mo. App. W.D. 2000). In order to establish that foundation, the party seeking to introduce the prior statement must first "ask the witness whether he or she made the statement, quote the statement, and point out the precise circumstances under which it was allegedly made, including to whom the witness spoke and the time and place of the statement." Id. The witness must then "be given a chance to refresh his recollection of the prior statement and to admit, deny, or explain it." Litton v. Kornbrust, 85 S.W.3d 110, 114 (Mo. App. W.D. 2002) (quoting Nichols v. Preferred Risk Group, 44 S.W.3d 886, 892 (Mo. App. S.D. 2001)). If the witness admits to his prior ...

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