Hagar v. Shull

2017 Ark. App. 185, 518 S.W.3d 683, 2017 WL 1174324, 2017 Ark. App. LEXIS 204
CourtCourt of Appeals of Arkansas
DecidedMarch 29, 2017
DocketCV-15-380
StatusPublished
Cited by1 cases

This text of 2017 Ark. App. 185 (Hagar v. Shull) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hagar v. Shull, 2017 Ark. App. 185, 518 S.W.3d 683, 2017 WL 1174324, 2017 Ark. App. LEXIS 204 (Ark. Ct. App. 2017).

Opinion

ROBERT J. GLADWIN, Judge

|,In this medical-malpractice/wrongful-death case, appellant Derek Scott Hagar, as the administrator of the estate of his late father, Darren Scott Hagar, and as representative of his father’s wrongful-death beneficiaries, appeals from a jury verdict in favor of appellee, Dr. Robert Shull. For reversal, appellant argues that the circuit court erred in certain evidentia-ry rulings, in restricting his cross-examination of Dr. Shull, and in instructing the jury. We affirm.

I. Background

Darren Scott Hagar (Scott) died on January 15, 2010, at age forty-two. He suffered from morbid obesity, severe obstructive sleep apnea, and a host of other medical problems and had been treated for many years by his primary-care physician, Dr. Trent Pierce. In |2Pecember 2009, Scott visited Dr. Pierce for a checkup and underwent a chest x-ray. The results were unremarkable.

Less than a month later, on Wednesday, January 13, 2010, Scott presented to Dr. Pierce with flu-like symptoms. Dr. Pierce prescribed Tamiflu, cough medicine, Cipro (an antibiotic), and the pain medicine Dar-vocet. Scott’s condition improved somewhat, but he was still coughing and began to experience pain on his right side. According to his wife, he had also coughed up blood. At approximately 4:00 a.m. on Friday, January 15, 2010, Scott’s mother drove him to the Crittenden County Hospital emergency room.

Upon arriving at the ER, Scott complained of severe abdominal pain and coughing with recent flu. The triage nurse noted, among other things, that Scott was alert and oriented; that his breathing was not labored; and that his temperature and blood pressure were normal. However, Scott also registered a below-normal pulse-oximeter reading and elevated respiration and pulse rates.

Scott was next seen by Registered Nurse Geraldine Massey, who recorded that he had pain in his right ribs and a cough that produced blood (which she did not personally witness). Shortly thereafter, Scott was examined by the ER physician on call, appellee Dr. Robert Shull. Dr. Shull noted that Scott complained of a cough; of chest and abdominal pain worsened by a deep breath; and of being dis-; satisfied with the Darvoeet that Dr. Pierce had prescribed for pain. The doctor also listened to Scott’s breathing and detected a sound' called “rhonchi,” which was consistent with bronchitis, but did not detect a “rales” sound, which would have been consistent with pneumonia. Knowing that Scott was already being treated with an antibiotic, Dr. Shull diagnosed him with muscle strain from coughing and | .¡prescribed a more potent painkiller, Lor-tab. Scott’s mother insisted oh a chest x-ray, which was taken within a short time and transmitted electronically to the hospital’s computer system.

According to Dr. Shull, he viewed the x-ray on the ER’s computer terminal and determined that Scott had atelectasis—a collapse of small airways in the lungs that is common in larger patients—but not pneumonia. The doctor conveyed that information to Nurse Massey, who told Scott that the x-ray was fine and that he could leave. Scott was discharged at approximately 6:00 a.m., after which he dropped his Lortab prescription off at the drug store and returned home.

Later that morning, hospital radiologist Dr. Mark Mills read Scott’s chest x-ray. Dr. Mills observed an “enlarged” cardiac silhouette and evidence “suggesting pneumonia or atelectasis.” He did not contact Scott’s family or Dr. Shull, who had gone off duty.

Meanwhile, Scott’s family tried to telephone him throughout the day but could not reach him. Late that afternoon, Scott’s mother went to his house and saw him through a window, sitting motionless. She called 911, and paramedics transported Scott back to Crittenden County Regional Hospital between 6:00 p.m. and 7:00 p.m. There, Scott was pronounced dead by Dr. Shull, who had just come back on duty.

Concerned that he had missed something, Dr. Shull reviewed Scott’s chest x-ray and read the radiologist’s report. Upon doing so, he was satisfied that his diagnosis was correct and that Scott would not have benefited from being admitted to the hospital.

A few days later, an autopsy was performed by Associate Medical Examiner, Dr. Daniel Dye. Dr. Dye concluded that Scott died of cardiomyopathy (heart enlargement) due Uto obesity, with acute bronchopneumonia. The doctor also performed a toxicology analysis, which revealed that small amounts of several medications were present in Scott’s system, including acetaminophen; dextromethor-phan (cough suppressant); Darvoeet; hy-drocodone (Lortab); oxycodone (Percocet); and promethazine (Phenergan). Dr. Dye stated that these drugs “were all in the therapeutic or subtherapeutic range and were all administered (prescribed) by a physician” and did not directly contribute to Scott’s death.

On December 14, 2010, Scott’s family sued Dr. Shull and Crittenden County Hospital for medical negligence and wrongful death. The complaint alleged that Dr. Shull failed to properly assess, examine, and diagnose Scott during the emergency-room visit and should have admitted him to the hospital for treatment of pneumonia. The hospital and its insurers settled for $400,000 and were dismissed with prejudice. The case then went to trial against Dr. Shull.

At trial, appellant’s medical expert, Dr. Henry Smoak, testified that Dr. Shull breached the standard of care when he failed to admit Scott to the hospital for treatment of pneumonia. Dr. Smoak based his opinion on Scott’s presentation in the ER; his medical history; and a comparison between the “abnormal” chest x-ray taken on the morning of January 15, 2010, and the unremarkable x-ray taken a few weeks earlier in December 2009. For the defense, Dr. Darren Flamik testified that the standard of care would not have required Dr. Shull to admit S.cott to the hospital. Dr. Flamik further testified that Scott’s death was not due to pneumonia but to his enlarged heart and other medical problems, plus the “mixed drug intoxication” from the many medications in his system. Other defense ^experts agreed with Dr. Flamik’s testimony. Following a lengthy trial, the jury returned a unanimous verdict in favor of Dr. Shull.

II. Cross-Examination and Impeachment of Dr. Shull

Appellant argues first that the circuit court erred in excluding certain impeachment evidence and in restricting his cross-examination of Dr. Shull. Our standards of review are well established. We will not reverse a circuit court’s exclusion of evidence absent a manifest abuse of discretion. Poff v. Elkins, 2014 Ark. App. 663, 449 S.W.3d 315. Also, the scope and extent of cross-examination lie within the circuit court’s discretion. Herrington v. Ford Motor Co., Inc., 2010 Ark. App. 407, 376 S.W.3d, 476. We will not reverse the decision to limit cross-examination absent a clear abuse of that discretion. Bd. of Comm’rs of Little Rock Mun. Water Works v. Rollins, 57 Ark. App. 241, 945 S.W.2d 384 (1997).

Appellant’s arguments involve the two chest x-rays performed on Scott near the time of his death: the January 15, 2010 x-ray taken the morning that he visited the ER; and the December 2009 x-ray taken during his check up with Dr. Pierce.

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2017 Ark. App. 185, 518 S.W.3d 683, 2017 WL 1174324, 2017 Ark. App. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hagar-v-shull-arkctapp-2017.