Darnaby v. Sundstrom

875 S.W.2d 195, 1994 Mo. App. LEXIS 497, 1994 WL 96605
CourtMissouri Court of Appeals
DecidedMarch 23, 1994
DocketNo. 18370
StatusPublished
Cited by7 cases

This text of 875 S.W.2d 195 (Darnaby v. Sundstrom) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darnaby v. Sundstrom, 875 S.W.2d 195, 1994 Mo. App. LEXIS 497, 1994 WL 96605 (Mo. Ct. App. 1994).

Opinion

FLANIGAN, Presiding Judge.

Plaintiff William Damaby filed this medical malpractice action against defendants Frank D. Sundstrom, M.D., and his employer. Prior to the trial, the parties agreed that any verdict in favor or against Dr. Sund-strom would also be a verdict in favor or against his employer. The jury returned a verdict in favor of Dr. Sundstrom. Plaintiff appeals from the judgment entered in favor of both defendants. As used in this opinion, the word “defendant” refers to Dr. Sund-strom.

Plaintiff contends that the trial court erred: (1) in restricting his cross-examination of defendant concerning prior lawsuits against him; (2) in refusing to permit plaintiffs medical expert to testify concerning a 1984 x-ray.

On January 26, 1987, plaintiff was injured when he fell from a forklift. He was seen in the emergency room that day, and on January 29, 1987, became the patient of defendant. X-rays taken at that time revealed a fracture of the tip of the spinous process of the fourth lumbar vertebra. He remained off work for several weeks while receiving conservative treatment from defendant. In April, he returned to work for two weeks. In June, he complained of a significant increase in low back pain.

On July 10, 1987, defendant performed surgery on plaintiff and fused the vertebrae at the L-4, L-5 level. Defendant’s brief says: “Defendant initially had intended to perform surgery at the L-5, S-l level, but in the course of the surgery determined that the instability was at the L^4, L-5 level and operated at this level. Since defendant’s focus had initially been on the L-5, S-l level, he inadvertently misdictated his operative report.” The report indicated that the surgery [197]*197was performed at the L-5, S-l level. Plaintiff presented evidence that the surgery was performed at both levels and was unnecessary.

Instruction 8, plaintiffs verdict-director, submitted, in the disjunctive, several acts or omissions of defendant, including: removing a disk from plaintiffs spine when it was not necessary to do so, fusing plaintiffs spine when it was not necessary to do so, or operating at the wrong location on plaintiffs spine.

Plaintiffs first point reads: “The trial court prejudicially erred in refusing to allow plaintiff the opportunity to impeach defendant’s credibility for truth and veracity, through cross-examination of defendant about prior lawsuits filed or claims made against him, where defendant, in both interrogatory answers and deposition testimony, denied the existence of a claim which was subsequently discovered to have been made against defendant in that such a denial goes directly to the defendant’s truth and veracity as a credible witness and plaintiffs claim, in large measure, rested upon the credibility of defendant.”

After plaintiff rested, defendant was called as a defense witness. Near the end of plaintiffs cross-examination the following occurred outside the hearing of the jury:

MR. ANSLEY: Your Honor, at this time I would ask to be released of the motion in limine with regard to other lawsuits for the reason that it — that in the discovery phases of this case, Dr. Sundstrom was asked to identify all cases in which he was sued. He listed, I believe, three or four. He omitted a lawsuit that was filed in 1963, I believe, in which he was sued by an individual who received hip surgery from him. Now, the fact that he has been sued, had he fully disclosed and responded to the interrogatory, there would be no reason to inquire of this other — this other lawsuit. But if — by his not disclosing that lawsuit, I believe this goes to the — directly to his credibility as a witness, credibility is one of the most significant issues in this ease, and I would ask leave to inquire of the witness on that subject. And I—
THE COURT: Well, do you want to say anything, Mr. Hall?
MR. HALL: Yes, Your Honor. We disclosed by interrogatory answer all the known lawsuits of Dr. Sundstrom. I think that the — I think they date back to the mid 1970s. In his deposition Mr. Ansley also made inquiries regarding those particular lawsuits. And I will get his deposition out here but I believe his response was as Mr. Ansley that’s the best — matter of fact he volunteered another one that I didn’t even know about in the course of his deposition, he listed another claim or lawsuit. And I don’t know if the lawsuit — whether it was a claim or a lawsuit. And, in fact, his response was, Mr. Ansley, that’s the best of my recollection of all the lawsuits. That he actually, disclosed, one, two, three, four — four separate lawsuits.
THE COURT: I don’t think we’re going back 27 years, request is—
MR. ANSLEY: Your Honor, the circumstances of this particular surgery should be foremost in Dr. Sundstrom’s mind. I have the certified records of the Circuit Clerk’s office which indicates that he was sued because he operated on the wrong hip. And by answers to interrogatories he admits that he operated on the wrong hip and he describes the damages that he has performed by operating on the wrong hip. And this goes clearly towards his credibility, that’s the kind of thing that you would expect to remember if you do something like that.
THE COURT: Request denied.
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MR. ANSLEY: Your Honor, may I make a further offer at the evening recess?
THE COURT: Yes, sir.

Later, during a recess, plaintiffs counsel offered Exhibit 82, consisting of records of the Circuit Court of Greene County, in Case 47306, Lucille Lister, Administratrix of the Estate of Roy Lister v. Frank D. Sundstrom, M.D. The following then occurred:

MR. ANSLEY: Exhibit 82 includes the Petition, the Answer, Interrogatories to the plaintiff in which he was asked if he operated on the wrong hip, which he admitted, he also describes what he did to repair the inaceu-[198]*198rate surgery. It is plaintiffs position that this is the type of mistake that a physician should remember for the rest of his life. And regardless of the fact that it may have occurred in the ’60s, Dr. Sundstrom should be able to remember it.
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THE COURT: That is the surgery on the wrong hip and the lawsuit in 1963, right?
MR. ANSLEY: That’s right.
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THE COURT: The objection is sustained.

“The law is well settled that where a witness is cross-examined as to a collateral matter, the cross-examiner is bound by the witness’ answers and will not be permitted to offer evidence to contradict the witness relative to such answers. The test as to whether the matter is collateral ⅜ ⅜ ⅜ is whether the party seeking to introduce it for purposes of contradiction would be entitled to prove it as a part of his case. If a fact may be shown in evidence for any purpose independently of contradiction, it is not collateral.” Frechin v. Thornton, 326 S.W.2d 122, 126 (Mo.1959).

In Overfield v. Sharp, 668 S.W.2d 220 (Mo.App.1984), the court, referring to the Frechin rule, said, at 223:

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Bluebook (online)
875 S.W.2d 195, 1994 Mo. App. LEXIS 497, 1994 WL 96605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darnaby-v-sundstrom-moctapp-1994.