Hively v. Edwards , 278 Ark. 435 ( 1983 )

Steele Hays, Justice.

Bill and Mary Hively filed this suit on behalf of their eleven-year-old son, Richard, alleging medical malpractice by Dr. Harvey Edwards, appellee. On November 13, 1977, Richard suffered a fracture to bones of his right leg. Dr. Edwards set the fracture by closed reduction and applied a cast. The following morning Richard had a high fever and severe swelling of the leg. Fever, swelling and marked discoloration of the toes and foot persisted and a fasciotomy to combat the inflammation was done on November 16. On November 17 the youth was transferred to a Memphis hospital and amputation was narrowly averted. Treatment required several hospital stays and the final result was a severe and permanent injury, the injured leg being one and a half inches shorter, the right ankle being fused.

The Hivelys brought suit in 1979, claiming that Dr. Edwards was negligent in failing to diagnose an anterior compartment syndrome and by failing to take corrective measures promptly. There was forceful medical testimony that Dr. Edwards was negligent in diagnosis and in treatment, but this was disputed and the jury held for the defendant. Appellants ask us to reverse the trial court on several grounds, but we find no reversible error.

Appellants urge that they should have been permitted to ask Dr. Glen Dickson, a witness for the defense, whether he had previously reviewed medical records and written a report to St. Paul Insurance Company, giving his opinion of Dr. Edwards’ handling of the case. The issue came up during cross-examination of Dr. Dickson, who had seen Richard in consultation with Dr. Edwards. After establishing that Dr. Dickson had reviewed the records some four years earlier and had written a report, counsel for appellants asked who had sent him the records for his review. The issue was taken up in chambers, and following a hearing the trial judge held the evidence of insurance had some relevance as showing a possible bias by the witness, but that the prejudice which would result from the jury knowing insurance was involved outweighed any probative value.

We think the trial court correctly followed the requirements of Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. §29-1001 (Repl. 1979), by weighing conflicting factors before deciding whether to admit or reject the evidence. We cannot say that it abused its discretion by not admitting the evidence of insurance. See Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). We have often said that juries should not be needlessly informed about insurance coverage because of the prejudice inherent in such information. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980); Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973); Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959); Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1 (1912). In Hogan Co. v. Nichols, et al, 254 Ark. 771, 496 S.W.2d 404 (1973), we said that evidence of liability insurance is ordinarily excluded because of its lack of relevance; that because of the inherently prejudicial effect of such evidence, it should only be admitted when it has some probative value relevant to the issues.

Appellants counter with the argument that modern juries are conscious of the likelihood of liability insurance in malpractice cases, rendering prejudice minimal, and the possibility of bias, interest and credibility of the witness being affected is of greater probative weight than any possible prejudice. They point to instances where we have held evidence of insurance to be admissible in spite of prejudice. In Murray v. Jackson, 180 Ark. 1144, 24 S.W.2d 960 (1930), we declined to reverse the trial court in permitting testimony concerning insurance in a case involving disputed personal injuries. The plaintiff had introduced evidence that her injuries were permanent. The defendant then offered the testimony of a physician who said he examined the plaintiff at the hospital, that her injuries were not permanent and should not have required hospitalization. Counsel for plaintiffs was permitted to show on cross-examination that his examination of the plaintiff was at the request of an insurance company. We have said the evidence was proper for the purpose of impeachment or contradicting the witness, as the j ury might have found the employment made the physician biased in favor of the defendant. In Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W.2d 174 (1962), we held that where a witness to an automobile accident is interrogated by the defendant about a written statement given to an insurance adjustor, the defendant must be prepared for the jury to know insurance is involved. But in those cases, the trial court had held the evidence was admissible, whereas here the trial court held it inadmissible, and our review is confined to determining whether reversible error occurred.

Appellants assert that the bias and pecuniary interest of a witness are not collateral matters and may always be shown to discredit him, citing Wright v. State, 133 Ark. 16, 201 S.W. 1107 (1918). They point to several factors they say could have affected Dr. Dickson’s bias: whether he was paid by St. Paul for his report and testimony; whether he was St. Paul’s insured and was being defended by St. Paul in other litigation; whether he had testified for St. Paul in other cases. But the bias in Wright v. State was of a different sort and has little relevance to this case. There, a witness for the prosecution had on numerous occasions expressed ill will toward the defendant and on appeal it was held that the evidence should have been received. The other arguments of bias come closer to the mark, but the answer is that the trial court permitted Dr. Dickson to be asked if he was paid for his report and for his testimony. He answered that he could not recall whether he was paid for the report, and assumed he was not; he said he was not being paid to testify, though if any payment was offered he would accept it. The other questions concerning St. Paul were not raised before the trial court, at least we find nothing in the record (the hearing in chambers was not transcribed) and whether these factors would have produced a different evidentiary ruling by the trial court would be speculation. Based on what was presented to him, we cannot say the trial judge abused his discretion by refusing to hold that the evidence of insurance was so probative of biased testimony as to outweigh the prejudice inherent in such evidence.

Appellants ask us to hold that the trial court abused its discretion in sustaining objections to questions asked of Dr. Edwards on cross-examination. On direct, Dr. Edwards was able to recall a number of details which were not on the hospital records. To test his memory of distant events, counsel asked him on cross-examination to describe how he had treated the patient he had seen just prior to Richard, and how many patients he had seen that day. Counsel asked what he would charge per hour for giving a medical deposition in Jonesboro, which the court also rejected. Appellants cite cases pointing out the duty of the trial court to permit a full, fair and reasonable cross-examination of a witness. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795 (1964), Trammel v. State, 193 Ark. 21, 97 S.W.2d 902 (1936), Arkansas State Highway Commission v. Dean, 247 Ark. 717, 447 S.W.2d 334 (1969). But we cannot say the trial court abused its discretion by these rulings. There are outer limits to cross-examination, which the trial court must fix, subject to limited review, and it isn’t shown appellants were unduly restricted.

Appellants complain that counsel for appellee was permitted to bolster the reputation of Dr. Edwards and of the Campbell Clinic in Memphis, where Richard was treated, without plaintiff’s having first attacked those reputations. Dr. Austin Grimes, called by the defense, was asked if he knew Dr. Edwards’ qualifications to practice orthopedics, answering that he was a qualified orthopedic surgeon. But the objection was not made until well after the answer was given and the issue does not rise to the level of reversible error. We think the same may be said of another witness’s laudatory reference to Dr. Willis Campbell, founder of Campbell’s Clinic, who had died some forty years earlier, of which appellants complain. Perhaps neither question was entirely proper, but some irrelevant comments intrude inevitably into almost every trial. The human impulse to lend credibility to one’s sources was not confined to the defense. Appellants’ medical witness, Dr. Shutkin, citing an article from a medical journal he was relying on, described the author as a “very famous orthopedic surgeon of international renown.”

Two arguments remain. First, appellants urge that a resume of Dr. Shutkin’s education, training and experience should have been admitted as an exhibit. But the trial court refused it because it was covered by the witness on direct examination and we cannot say this ruling was error. Second, appellants allege error in the trial court’s refusal to admit a copy of “Rules and Regulations For Hospitals and Related Institutions in Arkansas” compiled by the Division of Hospitals and Nursing Homes of the Arkansas State Department of Health. Regulation C, 4, (a) requires a complete history and physical work-up in every patient’s chart prior to surgery. Appellants contend that since Dr. Edwards did not complete the hospital records in this case until several days after the surgery, the regulations constitute some evidence that he was negligent. We disagree with the argument. Nowhere in the record is it suggested that there was a causal connection between Richard’s disability and the failure to complete the history and physical work-up prior to surgery. And the essential element of proximate cause is not met simply by this proffered exhibit. See Prosser on Torts, 4th Ed., § 41. On their face the regulations apply to hospitals and nursing homes and, obviously, the cited regulation cannot be taken categorically, because frequently circumstances are such that to delay surgery for paper work would endanger the patient. Without some explanation to the jury as to how the result in this case was affected by the failure to comply with the regulations, assuming they applied, we think the trial court properly refused them. Certainly, we cannot say appellants’ rights were substantially denied by the rejection of this evidence. See Rule 103, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

The judgment is affirmed.

The Chief Justice and Justice Purtle dissent.