Ring v. Rogers , 144 Or. App. 509 ( 1996 )

EDMONDS, J.

Plaintiff appeals from a judgment in favor of defendant Rogers in this medical malpractice action. She makes multiple assignments of errors. We affirm.

The decedent was admitted to Good Samaritan Hospital in Portland after suffering a myocardial infarction. Rogers, a cardiologist, was the decedent’s primary physician while he was treated at the hospital and treated him with medication. After 12 days at Good Samaritan, the decedent was discharged with Rogers’ approval. Eleven days later, he died. Plaintiff alleges, in part, that Rogers was negligent in the care and treatment of the decedent because he failed to recommend coronary bypass surgery as a form of treatment. After a trial, the jury returned a general verdict for Rogers.¹ Plaintiff appeals, making several assignments of error.

In her first assignment of error, plaintiff contends that the trial court erred in admitting the following testimony from an expert witness testifying for Rogers.

“Q. Have you found [Rogers] to be overall a passive person when it comes to placing someone who needs bypass surgery?

“A. Dr. Rogers is considered an aggressive cardiologist who will intervene whenever necessary and early, whether it’s recommending surgery or doing balloon angioplasty-type treatment.”

Plaintiff argues that the testimony is inadmissible evidence of Rogers’ character under OEC 404(2). Rogers counters that the evidence was not character evidence, and even if it was improperly admitted, the error was not prejudicial.

OEC 404(2) provides that “[e]vidence of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion.” “Character” is not defined in the Oregon Evidence Code or in the legislative commentary to the code. In State v. Marshall, 312 Or 367, 371-72, 823 P2d 961 (1991), the court stated:

“ ‘ “Character” generally indicates “a person’s disposition or propensity towards certain behavior, such as honesty,” * * * or “a person’s tendency to act in a certain way in all varying situations of life.” ’

“Professor McCormick has explained that ‘[c]haracter is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.’ McCormick, Evidence 574, § 195 (3d ed 1984). For example, McCormick explains that when we speak of a character for carefulness, we think of the person’s tendency to act prudently in all the varying situations of life — in business, at home, in handling automobiles, and in walking across the street. See Charmley v. Lewis, 302 Or 324, 327-28, 729 P2d 567 (1986) (distinguishing character from habit and quoting McCormick’s definition of character with approval).” (Footnote omitted.)

In light of the above definition of “character,” the question of whether the testimony in issue can be properly characterized as character evidence is a close one. First, the testimony is not about Rogers’ disposition, propensity or tendencies to act in a certain way “in all varying situations of life.” In that sense, the evidence differs from evidence about general traits such as truthfulness, honesty, temperance or peacefulness and does not as readily fall into the classification of character evidence as do more general references. Moreover, the witness did not testify that Rogers was reputed to be a “careful” cardiologist, testimony that would imply that because he was generally a prudent practitioner, he must not have been guilty of negligence on this occasion. Rather, the testimony is about Rogers’ reputation for aggressiveness in a specific endeavor.

That aspect of the testimony results in more than one inference that can be drawn from the evidence. It could, as the dissent asserts, lead to the inference that because plaintiff is reputed to be an “aggressive” cardiologist, his treatment on this occasion was consistent with that reputation. See, e.g., Phinney v. Detroit United Railway Co., 232 Mich 399, 205 NW 124 (1925) (testimony of conductor that motorman had a reputation for recklessness was inadmissible character evidence). On the other hand, the testimony in the context of the evidence in the entire trial could be understood to mean something else. In this medical malpractice case, there was evidence of varying philosophical approaches to medicine. The record indicates that there exists in the medical community an aggressive approach and a conservative approach to the treatment of heart disease. Arguably, performance under either or both standards could meet the community standard of care. In other words, a patient with certain symptoms and conditions may be a candidate for surgery under the aggressive school of thought and not a candidate for surgery under the conservative school of thought. Thus, in those circumstances, a cardiologist may not be held to have violated his duty of care because he followed a certain recognized philosophy or methodology in the treatment of heart disease. In the context of the entire record in this case, the jury could have understood the testimony in question to refer to the particular school of thought embraced by Rogers.

It is for all of those reasons and for the reasons set forth below, that even if the testimony is considered to be inadmissible character evidence, its admission did not constitute prejudicial error. Evidentiary error is not presumed to be prejudicial. OEC 103(1). The test is whether the erroneously admitted evidence had some likelihood of affecting the result. State v. Isom, 313 Or 391, 403, 837 P2d 491 (1992). The trial lasted eight days, and the transcript is in excess of 1,300 pages. Neither party elicited other testimony that was derivative of the disputed testimony, nor was the testimony referred to in closing arguments. Both parties offered multiple expert witnesses who rendered opinions about whether Rogers’ treatment met the community standard of care. Plaintiffs witness testified that the decedent’s condition required immediate surgical intervention and that, if the source of his chest pain was not identifiable, more definitive tests were required. Defendant and his expert witnesses responded that the type of pain that the decedent complained of did not constitute an emergency situation and could be controlled by medication. They also testified that, because the decedent was overweight, had a history of diabetes, alcoholism, congestive heart failure and had poor target heart vessels, those factors made him an inappropriate candidate for surgery. In the light of all of these circumstances, we conclude that the disputed evidence had little or no likelihood of affecting the jury’s deliberations.

Plaintiffs next assignment of error is that the trial court erred in denying her request to give Uniform Civil Jury Instruction 30.10 (now renumbered as 70.08). In substance, the instruction would have told the jury that, even if the decedent had a condition of the body that predisposed him to injury, Rogers would be liable for all injury and damage caused by his negligence. However, the trial court did give Uniform Civil Instruction 15.02 (now 23.02), which told the jury that it did not need to find that Rogers’ conduct was the only cause of the decedent’s injury in order to hold him liable. It is not error when a trial court refuses to give a duplicative jury instruction.

Plaintiffs final assignment of error raises a similar issue and result. Plaintiff argues, “The court erred in denying plaintiffs request to instruct the jury that negligence of Dr. Intile subsequent to conduct of Dr. Rogers would not exonerate Dr. Rogers from liability.”² As Rogers correctly points out, Uniform Jury Instruction 15.02 gives the jury substantially the same information.

Affirmed.

1 Before trial, defendant Intile was dismissed as a party.

2 After the decedent was treated and released at Good Samaritan Hospital, he was admitted to Willamette Valley Hospital where he was treated by Dr. Intile.