Mitchell v. Kieliszek

2006 ME 70, 900 A.2d 719, 2006 Me. LEXIS 78
CourtSupreme Judicial Court of Maine
DecidedJune 15, 2006
StatusPublished
Cited by17 cases

This text of 2006 ME 70 (Mitchell v. Kieliszek) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. Kieliszek, 2006 ME 70, 900 A.2d 719, 2006 Me. LEXIS 78 (Me. 2006).

Opinions

Majority: SAUFLEY, C.J., and CLIFFORD, DANA, CALKINS, and LEVY, JJ.

Concurrence: ALEXANDER, J.

SAUFLEY, C.J.

[¶ 1] Judith A. Mitchell appeals from a judgment in favor of Dr. Francis X. Kiel-iszek, Dr. Edwin J. Krajci, and Stephens Memorial Hospital on Mitchell’s medical malpractice claim, entered after a jury trial in the Superior Court (Oxford County, Gorman, J.). Because we find no prejudicial error or abuse of discretion on any of the issues Mitchell raises on appeal, we affirm the judgment. We discuss only her [721]*721argument that the court abused its discretion in limiting her questioning of a non-party physician during his deposition and at trial.

I. BACKGROUND

[¶ 2] A few facts in this case are undisputed. On October 1, 1999, Mitchell had a mammogram at Stephens Memorial Hospital in Norway, on a referral from her primary care physician, Dr. Kieliszek. The films were reviewed by Dr. Krajci, a radiologist at the hospital. No follow-up examination was done. Mitchell had another mammogram in August 2000 that was “clearly and unequivocally highly suggestive of malignancy” in her right breast. She subsequently underwent treatment for cancer, including surgery to remove her right breast. The parties’ views of the other relevant facts are substantially different.

[¶ 3] According to the defendant doctors and hospital, when Mitchell was undergoing the October 1 mammogram, she could not tolerate adequate compression of the breast to achieve a readable result. In reviewing the film, Krajci was concerned about an “asymmetric density” in the right breast that appeared to have possibly changed from prior years, but concluded that the mammogram was incomplete and nondiagnostic due to inadequate compression. He informally consulted with his partner Dr. Reynold Villedrouin, chief of radiology at the hospital, who agreed that there was inadequate compression for a diagnosis. Krajci examined the films with Kieliszek on October 1, told him of his concerns, and advised him that Mitchell should follow up with an ultrasound examination because she could not tolerate the compression needed for an adequate mammogram.

[¶ 4] According to the defendants, Krajci noted his conclusions on the x-ray jacket on October 1 and in his report prepared on October 4, which was sent to Kieliszek’s office. Kieliszek told Mitchell on October 4 that the mammogram had been suboptimal and nondiagnostic, and that she should have an ultrasound. His medical assistant, Cindy Ingram, told Mitchell on October 8 that she should have an ultrasound, and the hospital sent her a letter explaining that the mammogram was incomplete and nondiagnostic. Mitchell told Kieliszek that she did not want to have an ultrasound. She told Ingram that she was reluctant to have an ultrasound but would consider it and would contact Kieliszek’s office to schedule the ultrasound if she decided to have one, which she never did.

[¶ 5] According to Mitchell, she experienced severe pain during the mammogram of her right breast, but was never told that the compression was inadequate. Kielisz-ek told her that her hormone replacement therapy may have made her breasts tender and that she should stop taking the hormones two weeks before the next year’s mammogram. Ingram told her that the mammogram showed no change and that Kieliszek said it would be okay for her to have another mammogram in a year. No one told her that the mammogram was incomplete or that she should have an ultrasound.

[¶ 6] Mitchell brought this action in Superior Court in July 2003, alleging, inter aha, medical negligence by Kieliszek, Krajci, and the hospital. The court (Déla-hanty, J.) entered a standard-form scheduling order later that month that allowed the designation of one expert witness per party per issue, unless the court ordered otherwise for good cause shown. The order required Mitchell to designate her experts within three months (by the end of October 2003) and the defendants to designate theirs within five months. In September 2003, Mitchell took the deposition [722]*722of Dr. Villedrouin. Neither she nor any of the defendants had designated Villedrouin as an expert before the deposition. At the beginning of the deposition, Mitchell’s attorney stated that an issue had arisen about the scope of the questioning and that she had telephoned the Superior Court and was hoping to have a telephone conference with the presiding justice.

[¶ 7] During the deposition, Villedrouin testified that he did not recall consulting with Krajci about Mitchell’s 1999 mammogram films. Mitchell’s attorney put a film on a light box and asked Villedrouin, “Are you able to tell from looking at the film that’s before you, the 1999 film of the right breast, ... whether there is adequate compression?” Krajci’s attorney objected and instructed Villedrouin not to answer. Mitchell’s attorney asked several more questions that Krajci’s attorney instructed Villedrouin not to answer.1 The deposition was then interrupted for a telephone conference with the court (Gorman, J.), not all of which was transcribed.

[¶ 8] The court sustained the objections, stating, “The doctor is required to answer questions regarding policies and procedures in his department ..., but he is not required to provide any expert testimony.... [I]f it’s based upon his experience or education as a radiologist, he is not required to answer.” Mitchell’s attorney asked whether she could ask Villedrouin, “[I]s there information or data here on this film that enabled you to decide whether or not there is adequacy of compression and if not what additional data would one need?” She argued that the answer would implicate Krajci’s credibility. The court ruled that the question called for an expert opinion and that Villedrouin was not required to answer. Mitchell did not, thereafter, seek to designate Villedrouin as an expert for any purpose.

[¶ 9] Before trial, Krajci filed a motion in limine to prevent Mitchell from asking Vil-ledrouin questions that would require an expert opinion. At the trial in August 2004, the court stated that its ruling from the deposition would stand, and that if Villedrouin testified that he had no recollection of consulting with Krajci on Mitchell’s 1999 films, “he’ll not be giving any expert testimony as to how he would have read the films.” Villedrouin testified, as he had in the deposition, that he did not recall the consultation recounted by Krajci. Mitchell called an expert radiologist who testified that the 1999 film of the right breast had adequate compression and was highly suggestive of malignancy.

[¶ 10] The jury returned a verdict for the defendants on Mitchell’s medical negligence claims, and the court entered judgment accordingly. Mitchell then brought this appeal.

II. DISCUSSION

[¶ 11] We review the court’s rulings limiting Mitchell’s questioning of Villedrouin during his deposition and during the trial for abuse of discretion. Searles v. Fleetwood Homes of Pa., Inc., 2005 ME 94, ¶ 80, 878 A.2d 509, 518; Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 17, 742 A.2d 933, 940-41. We discuss first whether Mitchell’s questions sought to elicit an expert opinion, and then whether there [723]*723was a sufficient basis for barring those questions.

A. Expert and Lay Opinion Testimony [¶ 12] Without objection, Villedrouin testified that he did not recall consulting with Krajci about Mitchell’s 1999 mammogram.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 ME 70, 900 A.2d 719, 2006 Me. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-kieliszek-me-2006.