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Stone v. Alexander


October 28, 2010


Appeal from the Superior Court of the District of Columbia (CAB 8322-04) (Hon. Melvin R. Wright, Trial Judge).

The opinion of the court was delivered by: Kramer, Associate Judge

Argued December 2, 2009

Before GLICKMAN, KRAMER and THOMPSON, Associate Judges.

In this malpractice case, Jacqueline and Ronald Stone sued Dr. E. Pendleton Alexander and Medical Faculty Associates ("MFA") in connection with the death of their mother, Irma Stone, after a double heart valve replacement operation performed by Dr. Alexander. A jury returned a verdict for appellee. The issues on appeal are whether the trial court properly concluded that a conversation between Dr. David Salter, an assisting surgeon, and his colleagues about Dr. Salter's concerns with respect to Dr. Alexander's performance during Ms. Stone's surgery was privileged,*fn1 and whether an "amended autopsy report" was properly admitted into evidence.*fn2 We hold that even if the trial court abused its discretion by excluding testimony regarding a particular conversation, appellants suffered no prejudice because the court allowed testimony about every other conversation that Dr. Salter had with his colleagues, which allowed the jury to properly consider the matter. We also find no merit to appellants' remaining assertions and thus affirm.

I. Factual Background

On October 20, 2003, Irma Stone underwent a double heart valve replacement operation at George Washington University Hospital ("GWUH"). Ms. Stone was 67 years old and considered a "high-risk" patient because of her pre-existing afflictions,*fn3 but otherwise the operation was considered "routine." Eight days after the surgery, she was dead.*fn4 Appellants alleged that Dr. Alexander had negligently placed one of the replacement valves during the surgery, blocking the flow of blood to Ms. Stone's heart and causing her eventual death.

Dr. Alexander was assisted during the operation by Dr. Salter. The undisputed facts established at trial are as follows. Dr. Salter left the operating room some time during the procedure and returned later. Dr. Salter, and not Dr. Alexander, was present when Ms. Stone passed away. After Ms. Stone's death, Dr. Salter asked to examine her heart during the autopsy. Dr. Salter had discussions about the operation with his colleagues at various times, including Dr. George, a cardiothoracic fellow at GWUH, Dr. Gharagozloo, chief of cardiothoracic surgery at GWUH, and Dr. Katz. One of these conversations took place in the hospital cafeteria, during a meeting called by Dr. Gharagozloo. Dr. Alexander was not present.

The parties dispute why Dr. Salter left the operating room, why he went to examine Ms. Stone's heart at the autopsy, and what Dr. Salter said to his colleagues about the operation. Specifically, appellants assert that Dr. Salter's testimony at trial was inconsistent with the statements he made to his colleagues. At trial, Dr. Salter denied that Dr. Alexander had placed the valve negligently and offered an attenuated version of his concerns about the operation and Dr. Alexander's performance. On the other hand, at his deposition, Dr. Gharagozloo testified that Dr. Salter "voiced... very strongly his opinion about the way a valve was placed." According to Dr. Gharagozloo, Dr. Salter told Dr. Alexander during the operation that "the valve they were putting in... wasn't seating right, it wasn't being placed correctly." Dr. George's deposition testimony was that Dr. Salter had expressed concerns to him about the position of the replacement valve. Drs. George and Salter observed Ms. Stone's heart at the autopsy together, and Dr. George shared Dr. Salter's concerns at that time. Dr. George testified that the cafeteria meeting was called "out of concern for the position of the valve," and that Dr. Salter repeated his concerns at the meeting. At Dr. Katz's deposition, he testified that the cafeteria meeting was held because "people were upset and concerned about Ms. Stone's death" and "Dr. Gharagozloo... was made aware of this concern about the case, and there was enough talk that I think he simply wanted people to stop talking and say look, this is the way we handle it."

Appellee moved to preclude all testimony involving Dr. Gharagozloo, arguing that because Dr. Gharagozloo chaired GWUH's Peer Review Committee, "all conversations regarding the decedent's surgery [involving] Dr. Gharagozloo... were properly subject to the peer review privilege." Despite calling it a "close question," the trial court partially granted the motion with regards to the meeting in the cafeteria. The court reasoned that the meeting was "the beginning of an attempt to formulate the [peer review] committee."

At the same time, the court allowed testimony regarding all other conversations Dr. Salter had with his colleagues, including those colleagues who had been present at the cafeteria meeting. For example, the jury received the bulk of Dr. Gharagozloo's testimony through his de bene esse deposition. Therefore, Dr. Gharagozloo's statement that one "could not talk to Dr. Salter without this matter coming up"was admitted. Also admitted were Dr. Gharagozloo's hearsay reports of Dr. Salter claiming that he voiced his concerns about the valve's placement to Dr. Alexander during the operation and Dr. Salter's conclusion that "the outcome of this situation [i.e., Ms. Stone's death] was due to the result of the valve placement." In addition, Dr. Katz testified at trial that Dr. Salter told him that he was concerned about the position of the valve during the operation, and that his examination of Ms. Stone's heart after her death confirmed his concerns that the valve was not correctly positioned. Dr. Katz told the jury that Dr. Salter "told us that when he looked at the valve [after Ms. Stone's death], clearly the valve was in an improper position....

[T]here was some obstruction of the coronaries." Finally, the jury heard the de bene esse deposition testimony of Dr. George - who was also a participant at the cafeteria meeting, along with Drs. Gharagozloo and Katz - explaining that Dr. Salter expressed "concern that the valve was [positioned] too close to the [coronary] ostia such that it might inhibit the performance of the valve."

II. Standard of Review

We review a trial court's decision about admissibility of evidence for abuse of discretion.*fn5 In exercising our reviewing power, we remain cognizant that "[t]he concept of 'exercise of discretion' is a review-restraining one. The appellate court role in reviewing 'the exercise of discretion' is supervisory in nature and deferential in attitude."*fn6 Even where we find error, "we may find that the fact of error in the trial court's determination caused no significant prejudice and hold, therefore, that reversal is not required."*fn7 "In sum, the appellate court makes two distinct classes of inquiries when reviewing a trial court's exercise of discretion. It must determine, first, whether the exercise of discretion was in error and, if so, whether the impact of that error requires reversal."*fn8

III. Legal Analysis

A. The Cafeteria Meeting

Appellants claim that the exclusion of testimony regarding what was discussed during the cafeteria meeting "severely impede[d their] ability to introduce the full extent of the admissions against interest," despite the introduction of Dr. Salter's oneon-one conversations with several doctors, because "witnesses [found it difficult] to distinguish which statements were made in the cafeteria versus other parts of the hospital." Appellants assert that the informal meeting of doctors in a cafeteria "cannot fit within [the] definition of professional peer review," and that the witnesses should have been allowed to testify about the content of that conversation. Appellee, however, contends that the meeting falls within the plain language of the peer review statute. In the alternative, he argues that even if the trial court erred by concluding that the cafeteria conversation was privileged, appellants suffered no prejudice because the jury was exposed to Dr. Salter's views on the matter through testimony regarding Dr. Salter's numerous other conversations on the subject, covering substantively the same ground as the cafeteria meeting.

Appellants assert that the peer review privilege does not apply to "informal discussions among colleagues in the cafeteria [which are not] part of the recognized peer review process at the hospital." Appellee, on the other hand, points out that the plain language of the statute does not require that a meeting conform to a formal hospital process in order to be privileged.*fn9 Therefore, he asserts, "a meeting where multiple individual physicians were specifically summoned... to discuss their opinions [of a colleague's performance] is precisely the nature of the meetings [protected by the privilege]." We need not reach the merits of these arguments because we hold that appellants suffered no prejudice even if the trial court erred by withholding the cafeteria conversation from the jury.

Appellants' claim of error depends on their assertion that they were unable to present the jury with the full extent of Dr. Salter's pre-trial statements concerning his views of Dr. Alexander's performance because the trial judge prevented the witnesses from testifying about the cafeteria meeting. Therefore, they claim, they were unable to properly contrast his earlier views with the more attenuated testimony he provided at trial. This claim is without merit. The record indicates that the jury was presented with testimony from multiple witnesses who repeatedly described Dr. Salter's pre-trial view that Dr. Alexander had not placed the valve properly. Any evidence provided by admission of the cafeteria discussion, which also focused on Dr. Salter's dissatisfaction with the operation, would have been cumulative. Even appellants concede the point that the cafeteria conversation did not involve any novel "admissions," stating that "the ruling impaired the weight of the testimony by giving the false impression that the admissions were not made repeatedly."*fn10

We will not reverse "a judgment upon a jury verdict for harmless error which has not been shown to have prejudiced substantial rights in the proceedings or the ultimate outcome of the trial."*fn11 Moreover, it is well-settled that exclusion of cumulative evidence does not require reversal absent a "manifest abuse of discretion."*fn12 We do not discern from the record that the weight of testimony regarding Dr. Salter's admissions was materially impaired by the exclusion of the admissions made during the cafeteria meeting. Thus, we hold that the judge's ruling does not constitute a "manifest abuse of discretion."*fn13

B. Dr. Haudenschild's Testimony

Additionally, appellants argue that Dr. Haudenschild's de bene esse video deposition testimony should have been excluded because (1) it is hearsay and (2) appellee did not disclose Dr. Haudenschild as a witness in a timely manner. Appellants do not explain why Dr. Haudenschild's testimony is hearsay. In fact, they fail to develop this argument any further than listing it in a section heading. Therefore, the argument is not properly before us and we decline to address it.*fn14

Appellants also claim that appellees failed to disclose Dr. Haudenschild as a witness as required by Rule 26 (b)(4).

Rule 26 (b)(4) requires that a party who intends to rely on expert opinions must provide the opposing party with the substance of the expert's expected testimony before trial.... Rule 26 (b)(4) applies only to facts and opinions acquired or developed in anticipation of litigation or for trial. The rule does not apply to professionals or practitioners who acquire information and develop opinions as actor[s] or viewer[s] in the course of treating the patient.*fn15

Appellee argues that Rule 26 (b)(4) does not apply to Dr. Haudenschild because he is not an expert witness. Instead, GWUH engaged Dr. Haudenschild as a quality assurance consultant for the purpose of drafting the Final Autopsy Report.*fn16

Appellants do not present, nor do we find in the record, any evidence that he was consulted in anticipation of litigation.*fn17 Accordingly, Rule 26 (b)(4) does not apply to Dr. Haudenschild's testimony.*fn18

IV. Conclusion

Appellants were not prejudiced by the trial court's exclusion of evidence from a meeting called by GWUH's peer review officer for the purposes of evaluating Dr. Alexander's performance. Additionally, the trial court properly admitted testimony by a quality assurance consultant. Since the testimony was not expert testimony under Rule 26 (b)(4), its late disclosure was not error.


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