The opinion of the court was delivered by
McFarland, J.:
This is a medical malpractice action wherein plaintiff Lillian K. Walters received a $2,000,000 damage award against defendant C. Thomas Hitchcock, M.D. The defendant physician appeals from the jury’s verdict and certain pretrial and post-trial rulings of the district court.
The facts may be summarized as follows. In December, 1979, a lump on the neck of Lillian Walters was discovered by her family physician. Mrs. Walters was, at the time, approximately 32 years of age, married, with four minor children. She was not employed outside the home. The family physician conducted a number of tests and advised her to consult with a surgeon. Mrs. Walters was seen by defendant Hitchcock, a surgeon, on January 7, 1980. As a [32]*32result of the prior testing and his physical examination of her, Dr. Hitchcock recommended surgical removal of diseased areas of the thyroid gland. There were indications of a possibly malignant condition. Surgery was scheduled for January 22, 1980. Mrs. Walters was advised the operation was a relatively low risk procedure with an anticipated three-day hospital stay and a small residual scar.
The operation proceeded in what appeared at the time to be a routine manner. Specimens were sent to the pathology laboratory and no malignancy was detected. The patient was sutured and sent to the recovery room. One day later Mrs. Walters’ condition rapidly deteriorated. Her head ballooned in size, she became blind and suffered extreme respiratory distress. She was taken to the intensive care unit where a breathing tube was inserted. Shortly thereafter, Dr. Hitchcock was advised by the hospital pathology department that a one inch by one and one-half inch piece of esophagus tissue was connected to the thyroid specimen sent to the laboratory during surgery. Mrs. Walters’ wound was now badly infected. She was taken to surgery. Dr. Hitchcock reopened the wound and observed a significant hole in the left front portion of her esophagus. He concluded that repair was not possible and sewed the esophagus shut — thereby closing it permanently.
At this point feeding was possible only through a tube inserted directly into Mrs. Walters’ stomach. She regained her vision. Numerous hospitalizations and surgical procedures followed. Ultimately, colon interposition surgery was performed which involved making a sort of bypass esophagus from a portion of Mrs. Walters’ colon. Additional facts relative to Mrs. Walters’ condition and the quality of her life will be set forth in the discussion of the issue relative to the amount of damages awarded herein.
Mrs. Walters brought this action against Dr. Hitchcock based upon negligence in cutting into the esophagus and in failing to make prompt repair thereof. She sought $4,000,000 in damages. Dr. Hitchcock denied negligence and blamed the injury to the esophagus on the abnormal physiology of Mrs. Walters. The jury awarded Mrs. Walters $2,000,000 in damages and Dr. Hitchcock appeals therefrom.
The first issue on appeal concerns alleged misconduct of [33]*33plaintiffs counsel during closing argument. In his closing argument plaintiffs counsel stated:
“Who would sell their esophagus for $4 million? I would not sell mine.”
Defendant contends this constitutes a prohibited “golden rule” argument. This term relates to arguments of counsel that jurors should place themselves in the position of the plaintiff. Such arguments are usually improper and may constitute reversible error. See 75 Am. Jur. 2d., Trial § 282, pp. 357-58.
Plaintiff argues the remarks were not asking the jurors to place themselves in plaintiff s shoes, and were merely hypothetical in nature.
The remarks actually span two categories. The comment commencing “Who would sell . . . .” is, we believe, a fair argument relative to claimed damages and is not a “golden rule” argument. The comment that counsel would not sell his esophagus for that sum is testimonial in nature as it is a statement of counsel’s personal opinion. This is an improper argument. Does this improper comment constitute reversible error? We believe not. To constitute reversible error there must be a likelihood that the improper remarks changed the result of the trial. See State v. Dill, 3 Kan. App. 2d 67, 589 P.2d 634 (1979). We have examined the record and conclude that, in the totality of the circumstances, the improper comment constituted only harmless error.
Additionally, we note that counsel made a timely objection to the remarks and the objection was sustained. Counsel did not request a jury admonition and none was given. Further, the jury had been instructed:
“The evidence you should consider consists only of the testimony of the witnesses and the exhibits which the Court has received.
“Opening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments, which you are about to hear, are made by the attorneys to discuss the facts and circumstances in this case, and should be confined to the evidence and to reasonable inferences to be drawn therefrom. Neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded”. (Emphasis supplied.)
We conclude this issue is without merit.
The second issue is whether the trial court erred in excluding the opinion testimony of Dr. Arlo S. Hermreck relative to causation of Mrs. Walters’ surgical complications. Dr. Hermreck was [34]*34called into the treatment of Mrs. Walters by defendant. Dr. Hermreck had been one of defendant’s instructors in medical school and the two physicians had remained close. Dr. Hitchcock referred Mrs. Walters to Dr. Hermreck for evaluation and it was Dr. Hermreck who performed the colon interposition surgery and who was, at time of trial, the physician in charge of her care. Dr. Hermreck testified fully as to the treatment he had provided the patient, her present condition, and future prognosis. Dr. Hitchcock desired to call Dr. Hermreck as an expert witness to support his defense that physiological abnormality in Mrs. Walters was the cause of the problem and that Dr. Hitchcock had not been negligent in his treatment of her. The trial court held such opinion testimony would be improper. The ruling was based on a number of considerations which included the close relationship between the two physicians which, the trial court believed, would place Dr. Hermreck in a difficult ethical position. The trial court also stated it believed such testimony would violate the physician-patient privilege (K.S.A. 60-427).
The trial court’s reliance on the physician-patient privilege is misplaced. K.S.A. 60-427(d) clearly provides the privilege does not apply in an action in which the condition of the patient is an element or factor in the claim of the patient. Further, the trial court’s concern for the rather difficult situation Dr. Hermreck would be placed in testifying relative to his opinion on causation and Dr. Hitchcock’s adherence to the standard of care is not a valid reason for excluding the testimony.
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The opinion of the court was delivered by
McFarland, J.:
This is a medical malpractice action wherein plaintiff Lillian K. Walters received a $2,000,000 damage award against defendant C. Thomas Hitchcock, M.D. The defendant physician appeals from the jury’s verdict and certain pretrial and post-trial rulings of the district court.
The facts may be summarized as follows. In December, 1979, a lump on the neck of Lillian Walters was discovered by her family physician. Mrs. Walters was, at the time, approximately 32 years of age, married, with four minor children. She was not employed outside the home. The family physician conducted a number of tests and advised her to consult with a surgeon. Mrs. Walters was seen by defendant Hitchcock, a surgeon, on January 7, 1980. As a [32]*32result of the prior testing and his physical examination of her, Dr. Hitchcock recommended surgical removal of diseased areas of the thyroid gland. There were indications of a possibly malignant condition. Surgery was scheduled for January 22, 1980. Mrs. Walters was advised the operation was a relatively low risk procedure with an anticipated three-day hospital stay and a small residual scar.
The operation proceeded in what appeared at the time to be a routine manner. Specimens were sent to the pathology laboratory and no malignancy was detected. The patient was sutured and sent to the recovery room. One day later Mrs. Walters’ condition rapidly deteriorated. Her head ballooned in size, she became blind and suffered extreme respiratory distress. She was taken to the intensive care unit where a breathing tube was inserted. Shortly thereafter, Dr. Hitchcock was advised by the hospital pathology department that a one inch by one and one-half inch piece of esophagus tissue was connected to the thyroid specimen sent to the laboratory during surgery. Mrs. Walters’ wound was now badly infected. She was taken to surgery. Dr. Hitchcock reopened the wound and observed a significant hole in the left front portion of her esophagus. He concluded that repair was not possible and sewed the esophagus shut — thereby closing it permanently.
At this point feeding was possible only through a tube inserted directly into Mrs. Walters’ stomach. She regained her vision. Numerous hospitalizations and surgical procedures followed. Ultimately, colon interposition surgery was performed which involved making a sort of bypass esophagus from a portion of Mrs. Walters’ colon. Additional facts relative to Mrs. Walters’ condition and the quality of her life will be set forth in the discussion of the issue relative to the amount of damages awarded herein.
Mrs. Walters brought this action against Dr. Hitchcock based upon negligence in cutting into the esophagus and in failing to make prompt repair thereof. She sought $4,000,000 in damages. Dr. Hitchcock denied negligence and blamed the injury to the esophagus on the abnormal physiology of Mrs. Walters. The jury awarded Mrs. Walters $2,000,000 in damages and Dr. Hitchcock appeals therefrom.
The first issue on appeal concerns alleged misconduct of [33]*33plaintiffs counsel during closing argument. In his closing argument plaintiffs counsel stated:
“Who would sell their esophagus for $4 million? I would not sell mine.”
Defendant contends this constitutes a prohibited “golden rule” argument. This term relates to arguments of counsel that jurors should place themselves in the position of the plaintiff. Such arguments are usually improper and may constitute reversible error. See 75 Am. Jur. 2d., Trial § 282, pp. 357-58.
Plaintiff argues the remarks were not asking the jurors to place themselves in plaintiff s shoes, and were merely hypothetical in nature.
The remarks actually span two categories. The comment commencing “Who would sell . . . .” is, we believe, a fair argument relative to claimed damages and is not a “golden rule” argument. The comment that counsel would not sell his esophagus for that sum is testimonial in nature as it is a statement of counsel’s personal opinion. This is an improper argument. Does this improper comment constitute reversible error? We believe not. To constitute reversible error there must be a likelihood that the improper remarks changed the result of the trial. See State v. Dill, 3 Kan. App. 2d 67, 589 P.2d 634 (1979). We have examined the record and conclude that, in the totality of the circumstances, the improper comment constituted only harmless error.
Additionally, we note that counsel made a timely objection to the remarks and the objection was sustained. Counsel did not request a jury admonition and none was given. Further, the jury had been instructed:
“The evidence you should consider consists only of the testimony of the witnesses and the exhibits which the Court has received.
“Opening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments, which you are about to hear, are made by the attorneys to discuss the facts and circumstances in this case, and should be confined to the evidence and to reasonable inferences to be drawn therefrom. Neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded”. (Emphasis supplied.)
We conclude this issue is without merit.
The second issue is whether the trial court erred in excluding the opinion testimony of Dr. Arlo S. Hermreck relative to causation of Mrs. Walters’ surgical complications. Dr. Hermreck was [34]*34called into the treatment of Mrs. Walters by defendant. Dr. Hermreck had been one of defendant’s instructors in medical school and the two physicians had remained close. Dr. Hitchcock referred Mrs. Walters to Dr. Hermreck for evaluation and it was Dr. Hermreck who performed the colon interposition surgery and who was, at time of trial, the physician in charge of her care. Dr. Hermreck testified fully as to the treatment he had provided the patient, her present condition, and future prognosis. Dr. Hitchcock desired to call Dr. Hermreck as an expert witness to support his defense that physiological abnormality in Mrs. Walters was the cause of the problem and that Dr. Hitchcock had not been negligent in his treatment of her. The trial court held such opinion testimony would be improper. The ruling was based on a number of considerations which included the close relationship between the two physicians which, the trial court believed, would place Dr. Hermreck in a difficult ethical position. The trial court also stated it believed such testimony would violate the physician-patient privilege (K.S.A. 60-427).
The trial court’s reliance on the physician-patient privilege is misplaced. K.S.A. 60-427(d) clearly provides the privilege does not apply in an action in which the condition of the patient is an element or factor in the claim of the patient. Further, the trial court’s concern for the rather difficult situation Dr. Hermreck would be placed in testifying relative to his opinion on causation and Dr. Hitchcock’s adherence to the standard of care is not a valid reason for excluding the testimony.
As previously stated, it was the position of Dr. Hitchcock that Mrs. Walters’ esophagus was abnormal and that its defective condition was the cause of it being cut during the thyroid gland surgery. Dr. Hitchcock called Dr. Loren J. Humphrey, who testified Mrs. Walters’ esophagus had an outpouching (a diverticulum) and that it was this abnormality that was cut in the surgery. In essence, Dr. Humphrey testified that Mrs. Walters had an extremely rare abnormality which caused the injury and that Dr. Hitchcock was not at fault in his care of the patient. It should also be noted that, despite the restriction on his testimony, Dr. Hermreck did testify Mrs. Walters’ esophagus was, in his opinion, defective prior to the initial surgery. Dr. Hitchcock testified he believed Mrs. Walters must have had a diverticulum [35]*35on her esophagus which had been amputated during the surgery. He did not see such a structure but believed, in reconstructing the events, that one must have been present.
Admission of expert testimony lies within the sound discretion of the trial court and its rulings thereon will not be disturbed on appeal in the absence of abuse of discretion. Limiting the number of expert witnesses is also a matter within the discretion of the trial court. Powers v. Kansas Power & Light Co., 234 Kan. 89, 671 P.2d 491 (1983). When evidence is excluded by the trial court, the party seeking reversal of the judgment has the burden of demonstrating prejudice by such exclusion. In re Adoption of Irons, 235 Kan. 540, 684 P.2d 332 (1984).
We conclude the defendant has failed to show prejudice in the exclusion of Dr. Hermreck’s testimony relative to causation. The excluded testimony was cumulative with other expert testimony in the case. Error may not be predicated upon the exclusion of evidence which is merely cumulative and does not add materially to the weight or clarity of that already received. Powers v. Kansas Power & Light, 234 Kan. 89. Additionally, Dr. Hermreck, as previously noted, did testify that, in his opinion, Mrs. Walters’ esophagus was defective.
For his third issue, defendant contends the trial court erred in refusing to recall the jury to establish jury misconduct.
Attached to defendant’s motion for a new trial was an affidavit of defendant’s attorney that he had, after trial, talked to three of the jurors and had been advised that the jury during its deliberation had discussed that any recovery herein would be reduced by attorney fees and income taxes. In truth, of course, the recovery would not be reduced by income taxes. However, the truth or falsity of statements made in jury discussions is not the issue before us. Rather we must decide whether the trial court erred in refusing to recall the jurors for examination.
The allegations relative to juror misconduct constituted one of the grounds on which a new trial was sought. K.S.A. 60-259 governs motions for new trial. Jury misconduct is one of the statutory grounds on which a new trial may be granted. Jury misconduct is not one of the grounds for new trial that K.S.A. 60-259(g) requires be submitted on affidavits unless otherwise ordered. This, however, is not determinative of the issue before us. Supreme Court Rule 181 (232 Kan. clvi) states:
[36]*36“POST-TRIAL CALLING OF JURORS. Jurors shall not be called for hearings on post-trial motions without an order of the court after motion and hearing held to determine whether all or any of the jurors should be called. If jurors are called, informal means other than subpoena should be utilized if possible.”
Under this rule, jurors may be recalled for post-trial hearings only by order of the court after hearing on the need therefor. Such recall is not a routine matter. Jury service is a public duty of our citizens and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing counsel’s hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order recalling the jurors to show the necessity for the order.
Is the affidavit of counsel as to his or her conversations with jurors sufficient to support a claim of error on the part of the trial court in refusing to recall members of the jury? Absent some extraordinary circumstances not present herein, we believe the question must be answered in the negative. There is no reason given why affidavits of the jurors themselves could not have been secured herein rather than counsel’s recall of their comments. Without casting any aspersions on the veracity of the particular affidavit of counsel herein, we believe that such affidavits are, generally, insufficient to support a claim of error predicated upon a trial court’s refusal to recall a jury. Verbal comments to counsel by jurors following a trial are often made under some stress, may be easily misunderstood or subject to more than one interpretation. An affidavit(s) offered to show the need to recall a jury for examination for alleged misconduct among the jurors during deliberations should come from one present during the alleged misconduct — namely one or more of the jurors. Put another way, the affiant should have personal knowledge of the facts rather than the recitation of hearsay. We therefore conclude the trial court did not err in- refusing to recall the jury. This result is in accord with that reached by the Court of Appeals in Cornejo v. Probst, 6 Kan. App. 2d 529, 630 P.2d 1202, rev. denied 230 Kan. 817 (1981). Cornejo involved counsel’s verbal statements at the hearing on his motion for new trial relative to his conversations with jurors in contrast with coun[37]*37sel’s affidavit relative to juror conversations as is before us. However, much of the rationale of Cornejo is equally applicable to the issue herein.
For his final issue, defendant challenges the size of the verdict. In his brief defendant states:
“In advancing this argument, the defendant is definitely aware of the long line of Kansas cases on the subject and the guidelines that have evolved in those cases. The defendant realizes that the trial court will not be reversed in an order denying new trial unless the amount of the verdict, in light of the evidence, shocks the conscience of the appellate court.” (Citations omitted.)
Defendant, in support of his argument that the verdict was excessive, directs our attention to the following:
“1. Plaintiffs medical bills by the time of trial were approximately $59,000. “2. There was no claim nor was the jury instructed with regard to lost wages or diminished future earning capacity as Mrs. Walters was not employed during the course of her 19-year marriage.
“3. The repair surgery and reconstruction by colon interposition were working properly at the time of trial, and no further surgery, with respect to the surgical complication that occurred during the thyroidectomy, was contemplated. . . . No further evidence was presented regarding future medical expenses.”
The evidence herein bears out that medical science has done all that it can do to alleviate plaintiff s condition and no further surgery is contemplated, although the same is not ruled out. This does not mean the damage done to Mrs. Walters has been undone and that she has been restored to her previous condition. It simply means her condition cannot be helped by further surgery or treatment. The substitute esophagus fashioned from a part of Mrs. Walters’ colon is, apparently, functioning as well as can be expected but that level of function is a source of permanent problems for Mrs. Walters. When she swallows, food does not automatically go to her stomach. It piles up in grotesque bulges in her throat and upper chest. It is necessary for her to manually massage the bulges downward to force the food to her stomach. The process is physically painful. As there is no valve to keep the contents of her stomach from traveling back up the makeshift esophagus, she cannot lie flat and must remain in a position where gravity will keep the contents of her stomach in place. Her condition is embarrassing, distasteful to persons around her, and a major obstacle to leading a normal life. She has serious ongoing digestive problems. At the time of trial her life [38]*38expectancy was 41.9 years. The years between Mrs. Walters’ injury and attainment of her present level of functioning were a nightmare of pain, disability, hospitalizations and surgical procedures. She has severe disfiguring scars on her neck and torso. Many activities, such as eating and sitting, continue to be painful.
After having reviewed the record, we conclude our collective conscience is not shocked by the size of the verdict herein.
The judgment is affirmed.