Dеnnis BELNAP, Jennifer Abel, Zachary Collett, Alicia Brierley, and Derek Belnap, Appellants, v. Joseph GRAHAM, Appellee.
No. 20140979-CA.
Court of Appeals of Utah.
Jan. 22, 2016.
2016 UT App 14
and remand for further proceedings in accordance with this decision,
Robert G. Wright, Brandon B. Hobbs, and Zachary E. Peterson, Salt Lake City, for Appellee.
Justice JOHN A. PEARCE authored this Opinion, in which Judge MICHELE M. CHRISTIAN-SEN and Senior Judge RUSSELL W. BENCH concurred.1
Opinion
PEARCE, Justice:
¶ 1 Dennis Belnap, Jennifer Abel, Zachary Collett, Alicia Brierley, and Derek Belnap brought this wrongful death and personal injury action against Ogden Regional Medical Center (ORMC); Jоseph Graham, M.D.; and other, unknown defendants, following the untimely death of Patricia Belnap. The district court granted Graham‘s motion for summary judgment on the claims against him after concluding that the plaintiffs had failed to provide admissible evidence to create a question of fact with regard to those claims. We affirm.
¶ 2 On January 4, 2008, fifty-three-year-old Patricia Belnap (Patricia) underwent heart valve replacement surgery at ORMC. Graham performed the surgery and was Patricia‘s post-surgery treating physician. Initially, Patricia‘s recovery at ORMC was relatively uneventful, although her ongoing low blood platelet count caused some concern. Before she was discharged from ORMC, Patricia allegedly complained to the nursing staff that she was bleeding from her nose and suffering from mouth sores. The nursing staff did not inform Graham of these symptoms, and he authorized Patricia‘s discharge from ORMC on January 11.
¶ 3 Upon returning home, Patricia‘s nose began to bleed again. Patricia returned to ORMC and was readmitted in the early morning hours of January 12. Blood tests revealed that Patricia‘s blood platelet count was at a dangerously low level, and ORMC administered platelet and blood plasma transfusions. At about 4:00 a.m. on January 13, a nurse discovered Patricia in her room, unresponsive. At 8:05 a.m., Patricia was pronounced dead.
¶ 4 Patricia‘s husband and four children (collectively, the Belnaps) sued ORMC, Graham, and unknown defendants for wrongful death and personal injury. The Belnaps’ complaint alleged medical negligеnce in the post-surgical care that the defendants had provided to Patricia. Particularly, the Belnaps advanced two theories of negligence against Graham. First, they alleged that Graham breached his duty of care to properly chart his treatment of Patricia when he failed to make progress notes on January 8, 9, and 11. Second, the Belnaps alleged that Graham breached his duty of care by failing to examine Patricia on January 11, the day that Graham authorized her disсharge from ORMC.
¶ 5 To support their claims of negligence against Graham, the Belnaps presented the expert testimony of Paul Brown, M.D. In his deposition testimony, Brown conceded that the alleged flaws in Graham‘s charting of Patricia‘s care did not cause Patricia‘s death. However, Brown testified that it was his expert opinion that Graham violated the applicable standard of care by failing to examine Patricia on January 11 before discharging her from ORMC. Brown testified that in his opinion, if Patriсia had been given the proper treatment, she would likely not have died.
¶ 6 Brown testified that there were two bases for his opinion that Graham had failed to examine Patricia on the day of her discharge. First, Brown relied on statements made by Patricia to her husband, Dennis Belnap (Husband), and to her daughter, Alicia Brierley (Daughter). Husband testified that as Patricia was being discharged on January 11, she told Husband that “no doctor had been to see her that morning, that day.” Daughter testified that later on January 11, once Patricia was at home, Patricia told Daughter that she had not seen a doctor before she was discharged. Second, Brown relied on the fact that Patricia‘s medical file did not contain a progress note indicating that Graham had examined her on January 11. Brown testified to his opinion that the absence of such a note was evidence that Graham did not see Patricia on the day of discharge.
¶ 7 Graham moved for summary judgment, relying on his own deposition testimony that he had examined Patricia on the morning of January 11, between 7:00 and 7:30. Graham argued that the Belnaps’ only evidence to the contrary—Patricia‘s statements to Husband and Daughter and the absence of a progress note—constituted inadmissible hearsay. According to Graham, Brown‘s expert opinion was premised entirely on the hearsay evidence and could therefore not serve to make a prima facie showing of medical negligence by Graham. The district court agreed and granted Graham‘s motion for summary judgment. The district court certified its summary judgment order with regard to the Belnaps’ claims against Graham as final pursuant to
¶ 8 The Belnaps argue that both Patricia‘s statements to Husband and Daughter and the absence of a January 11 progress note are admissible because they fall within exceptions to the prohibition on hearsay. Evaluating the admissibility of evidence under the hearsay exceptions “requires the application of facts to the legal requirements of the rule,” аnd the district court “has some discretion in making this determination.” Salt Lake City v. Williams, 2005 UT App 493, ¶ 10, 128 P.3d 47. The Belnaps further argue that even if this evidence constitutes inadmissible hearsay, Brown could nevertheless rely on it to form his expert opinion and the district court therefore erred by excluding Brown‘s opinion. “A decision to admit or exclude expert testimony is left to the discretion of the trial court, and that decision will not be reversed unless it constitutes an abuse of discretion.” Ross v. Epic Eng‘g, PC, 2013 UT App 136, ¶ 11, 307 P.3d 576 (citation and internal quotation marks omitted).
ANALYSIS
I. Patricia‘s Statements
¶ 9 We first examine the admissibility of Patricia‘s stаtements to Husband and Daughter that Graham did not examine her on the day of her discharge from ORMC. The Belnaps concede that the statements constitute hearsay, which is generally inadmissible. See
¶ 10
¶ 11 As the district court noted,
¶ 13
¶ 14 Again, we agree with the district court that the exception does not apply. Patricia‘s statements that Graham had not examined her prior to discharge do not, on their face, appear to be the kind of “statement[s] of the declarant‘s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)” that are admissible under
¶ 15 Finally,
¶ 17 We agree with the district court‘s ultimate ruling, if not every step of its reasoning. Patricia‘s statements could be characterized as statements of her (very recent) medical history, and we see no express requirement in
¶ 18 In sum, we affirm the district court‘s rulings that Patricia‘s hearsay statements to Husband and Daughter that she had not seen a doctor on the day of her discharge do not fall within any identified exception to the hearsay rule. Because Patricia‘s statements constitute hearsay and no exception applies, the district court properly refused to consider the statements as evidence oppоsing Graham‘s summary judgment motion.
II. The Absence of a January 11 Progress Note
¶ 19 The Belnaps also seek to use the absence of a January 11 progress note in Patricia‘s hospital records to demonstrate that Graham had failed to examine Patricia on that day, the day of her discharge. The district court acknowledged that the absence of such a record can be admitted into evidence if its proponent satisfies the requirements of
¶ 20
(A) the record was made at or near the time by—or from information transmitted by—someone with knowlеdge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with
Rule 902(11) or(12) or with a statute permitting certification; and(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
¶ 21
Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the informаtion nor other circumstances indicate a lack of trustworthiness.
¶ 22 Because
¶ 23 “The trial judge is given great deference on the issue of the adequacy of foundation.” State v. Sutton, 707 P.2d 681, 684 (Utah 1985); see also In re Marquez, 560 P.2d 342, 342-43 (Utah 1977) (reviewing a foundational ruling for abuse of discretion). Here, the only foundation the Belnaps offered was Brown‘s expert opinion that there should have been a note in Patricia‘s file if Graham had examined her on the day of discharge. Brown testified,
[M]edically and legally, we need to have notes. And that is what proves you were there, shows the thought process, shows that you did it. So, you know, I think the fact that the medical records business of the discharge summary, the operative notes, three times where you weren‘t there, either shows a complete lack of concern for the medical record, or in fact you weren‘t really there.
The district court ruled that Brown‘s opinion testimony did not satisfy the foundational requirements of
[N]othing in [the Belnaps‘] memorandum or attached exhibits demonstrates that these records—specifically medical progress notes—were regularly conducted and kept (as shown by the testimony of the custodian of the records or other qualified witness). Instead, [they] jump right to the absence of a medical progress note, without benefit of the proper procedural foundation which assures the veracity of such an assertion, and rely upon the opinion of an expert to bolster the claim.
(Citation omitted.)
¶ 24 We cannot say that the district court exceeded the bounds of its discretion in ruling that there was insufficient foundation to admit the evidence of the absent note. Brown‘s testimony was based on the standard of care for medical providers, i.e., what should have happened if Graham and ORMC followed industry practices regarding medical charting. The district court did not err in determining that Brown‘s testimony failed to establish the actual regular record-keeping practices at ORMC, as required by
¶ 25 Finally, the Belnaps argue that even if Patricia‘s statements and the absence of a January 11 progress note are not admissible under exceptions to the hearsay rule, Brown could still rely on that evidence to form his expert opinion. The Belnaps rely on
¶ 26 The Utah Supreme Court has recognized that “expert evidence is sometimes justifiably based in part on evidence obtained outside the courtroom—even evidence of the adjudicatory facts in dispute.” Edwards v. Didericksen, 597 P.2d 1328, 1332 n.2 (Utah 1979). “But such evidence is usually the type that an expert relies upon as a matter of course in forming opinions and is sufficiently reliable to warrant an opinion based thereon.” Id.
¶ 27 With respect to Patricia‘s statements to Husband and Daughter, we see nothing about Brown‘s testimony that would have allowed the district court to conclude that those were the types of statements upon which a medical expert would ordinarily, reasonably rely. Instead, it appears that the Belnaps were seeking to use Brown‘s testimony as a “conduit” for the very hearsay statements that they would be prohibited from otherwise introducing. See State v. Schreuder, 726 P.2d 1215, 1225 (Utah 1986). The Utah Supreme Court has rejected the proposition that otherwise inadmissible hearsay may come into evidence as a matter of course under the guise of expert testimony. See id. (“A psychiatrist or a psychologist of course cannot be made a conduit for testifying in court as to any and all out-of-court statements made.“). Here, Brown‘s reliance on Patricia‘s statements evokes the expert testimony the supreme court rejected in Edwards v. Didericksen, 597 P.2d 1328 (Utah 1979), wherein the court stated that “[t]he interjection of such hearsay testimony, cloaked in the form of an expert opinion, would have been impermissible and potentially highly prejudicial,” id. at 1332. The district court did not err in disregarding Brown‘s testimony to the extent it was based on Patricia‘s statements.
¶ 28 Brown‘s inference from the absence of a January 11 progress note presents a somewhat closer issue, in that the inference arises from Brown‘s application of his medical expertise to materials—Patricia‘s medical records—that are regularly relied upon by experts in his field. Nevertheless, we affirm the district сourt‘s determination that the Belnaps failed to lay an adequate foundation for Brown‘s interpretation of the absence of a progress note.
¶ 29 “The determination of whether a proper foundation has been laid for an expert opinion is ... within the trial court‘s discretion and will not be disturbed absent a showing of clear abuse.” Vitale ex rel. Christensen v. Belmont Springs, 916 P.2d 359, 361 (Utah Ct. App. 1996). As the district court noted, Brown‘s testimony failed to establish that progress notes “were regularly conducted and keрt” such that the absence of a note reliably indicated that Graham failed to see Patricia on January 11. In this context, an adequate foundation could have included knowledgeable testimony that Graham regularly made progress notes each time he examined a patient, that Graham‘s notes regularly made their way into ORMC‘s records, and that ORMC regularly maintained those records.5 Absent such a foundational showing by the Belnaps, we cannot conclude that the district court abused its discrеtion in ruling that Brown‘s opinion regarding the absence of a medical progress note lacked adequate foundation.
CONCLUSION
¶ 30 Patricia‘s statements that no doctor saw her on the day of her discharge are hearsay and do not qualify for admission
¶ 31 Affirmed.