Shamblin v. Albright

647 S.W.2d 470, 278 Ark. 565, 1983 Ark. LEXIS 1314

• Court: Supreme Court of Arkansas
• Decided: March 14, 1983
• Docket: 82-225
• Status: Published

Opinions

Darrell Hickman, Justice.

This is a medical malpractice case. The jury returned a verdict in favor of the defendant medical doctor and we affirm.

On appeal two arguments are made for reversal: First, that the trial court wrongly prevented the appellants from presenting evidence on all theories of liability; second, that the court refused to permit certain cross-examination of a doctor testifying for the appellee. We find no merit to either argument.

The appellee, Dr. Spencer D. Albright, a dermatologist practicing in Fayetteville, Arkansas, had extensively treated the appellant for skin cancer. Mr. Shamblin had a long history of serious damage to his face from the sun. In 1975, Dr. Albright performed cryosurgery on a skin cancer on Mr. Shamblin’s face. Apparently it was not healing well and Mr. Shamblin returned to Dr. Albright many times. Dr. Albright did not perform another biopsy. Eventually, Mr. Shamblin sought a second opinion from a Dr. Shadid and it was determined that Dr. Albright’s treatment was not successful and that cancer persisted.

Shamblin sued Albright for malpractice in the treatment of his cancer. His wife joined in the suit. The trial court entered a pre-trial order almost a year before trial specifically limiting the issue of liability to whether Dr. Albright should have ordered an additional biopsy after the cryosurgery. That was to be the sole issue in determining whether Dr. Albright was guilty of malpractice.

Well into the trial, the appellant sought to question Dr. Vernon Carter about whether he would use cryosurgery on a lesion as large as ten millimeters. An objection was timely made and the attorneys discussed at length with the court whether this was at variance from the court’s pre-trial order. The trial court ruled that it was at variance and prohibited the inquiry. It was not a broad arbitrary order but, indeed, a specific one. There is no doubt it was entered well before the trial with notice to both parties. The order noted the names of the attorneys present for both parties when the order was made. There was no exception made to the order until it came up during the cross-examination of Dr. Carter. Such pre-trial orders, permitted by ARCP, Rule 16, are valuable tools in handling litigation in an orderly and efficient manner. We find no abuse of discretion by the court in limiting the appellant to his theory that the appellee was negligent because he failed to order another biopsy.

The second issue concerns the cross-examination of Dr. Thomas Jansen, a dermatologist who testified for the appellee as an expert. During his cross-examination appellant sought to show that Dr. Jansen had a financial interest in the outcome of the case. In-camera the doctor was asked whether he had such an interest and Dr. Jansen said that he did not. He was then asked if a judgment was entered against Dr. Albright whether it would cause Dr. Jansen’s insurance rates to rise. Dr. Jansen essentially answered that he was not sure, and said, “I suspect that any suit that is found in favor or against the insurance company causes an adjustment in experience; . . . . ”

We cannot say the trial court abused its discretion in preventing this line of cross-examination. The specific argument that Dr. Jansen’s malpractice insurance might go up was considered too speculative by the trial court and any value that might be attached to it would be far outweighed by a prejudicial impact. We cannot say the court abused its discretion in finding that it was not proper relevant evidence that the appellant was entitled to present to the jury to show bias and prejudice. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). The appellant was allowed to ask the doctor in front of the jury how much he was paid to testify and who would pay him. He answered that his fee would be $5,000 to $6,000 and Dr. Albright would pay him.

We find no prejudicial error.

Affirmed.

Purtle, J., dissents.