Kobos by and Through Kobos v. Everts

KOBOS, minor child Michael Robert years age, Through By

two Mi Kobos, his

chael KOBOS and Rebecca friends;

parents next Michael Ko Kobos, Appellants

bos and Rebecca

(Plaintiffs), EVERTS, M.D.; Sug Richard

Charles G. M.D.; Lambert, M.D.;

den, L. Kenneth Lambert, M.D., P.C., Wyo L.

Kenneth

ming professional corporation; Teton Associates, P.C.,

Radiology Wyoming corporation;

professional James R. Lit M.D.;

tle, M.D.; Pockat, Thomas Jack Pediatrics, P.C., Wyoming profes

son I-X; corporation;

sional John Does Partnerships, Corporations

and Doe I-X, Appellees Other Entities

and/or (Defendants).

No. 86-12.

Supreme Wyoming. Court 17,

Jan. 1989.

Rehearings Denied Feb. 1989.

Appellants’ Motion for Costs on Reversal in Part and Denied in

Granted Part

Feb. Hartnett, Jackson, ap-

Lawrence B. for pellants. Vlastos,

J.E. Vlastos of Brooks Hen- & P.C., Casper, ley, appellees for Everts and Associates, Radiology Teton P.C. Frank D. Neville and Michael Golden Williams, Porter, Neville, P.C., Day & Cas- per, appellee Sugden. for Godfrey Godfrey, Paul B. Sundahl & Jorgenson, Cheyenne, appellee for Lam- bert. Lathrop Lathrop, Rutledge

Carl L. & Boley, Cheyenne, appellee for Little. Redle, A. Yonkee of Yonkee & Lawrence Sheridan, Amey, appellee for Pockat. CARDINE, C.J., THOMAS, Before MACY, JJ., and URBIGKIT and BROWN,* J., Retired.

URBIGKIT, Justice. appellate is a

Presented for review six against malpractice trial five week medical involving improper hip physicians claims of septic osteomyelitis and ar- treatment of child, year thritis of a one old which result- in favor of four defendants ed verdicts The issues and directed verdicts for all. witnesses, encompass excluded denied cross-examination, directed verdicts and negligence instruc- erroneous contended tion. retrial. and remand for

We reverse I. ISSUES by appellants Although variously stated separate appellees who are and the five affected, appellate issues differently presented include: * Retired June 1988. malpractice negligence After two and one-half months about

1. Basic medical limited to this course of action with care instruction; improve- continuous office visits and no radiologist; for the 2. Directed verdict ment, made medical reference was for oth- Subsequent directed verdicts Sugden the child to at the be evaluated appellees they secured a er after favorable University of Medical Center in Salt Utah verdict; City, Utah. The serious condition as Lake appel- denying decision 4. Trial court required apparent sur- diagnosed Utah appellee doctors right to call the lants the gery, by done return to Jackson which was during their case as adverse witnesses by Fol- performed and Dr. William Mott. chief; and lowing surgery, diagnosis made of was (infected osteomyelitis bone). chronic and evi- witness exclusion 5. Contested trial court: dentiary decisions of the developmental As a result of either a surgical or misad- infected bone condition appel- a. Limitation on Mott, growth damage plate Dr. venture stan- expert radiologist to consider lants’ bring resulted to the femur which will contributory injury to the dard of care as growth significant hip future and about sustained; for the child. The use broad problems expert testimony of Limitation of b. of factual issues character considered regarding standard of care of witnesses delayed trial was whether the medical at- rejected as radiologist either which the infected condition tention while bone competent; cumulative or developed precipitated recognized inju- Lagios, M.D. c. Denied use of Michael Mott, ry or whether final curative his expert on the basis that witness surgery, permanent injury caused the dam- cumulative; and testimony would be age during surgical process. Conse- Madoff, of Lawrence d. Denied use litigative approach, quently appellees de- expert on the that M.D. as an witness basis diagnosis delay or treatment fault and nied cumulative. his would be surgeon oper- blamed Dr. Mott as who lengthy ated. The record of the trial can up including complicated summed II.FACTS significant evidence and a number of ex- Michael Robert Ko- Appellants include Qualification appellants’ pert witnesses. bos, child, young parents and his of Jack- particularly witnesses at son, Wyoming. In as the date of time, painstaking opposition. detail and events, year developed old these the one right hip pain. patient was first evalu- III.PROPER INSTRUCTION through telephone con- ated in office and principal appeal A issue in this Little, doctors, James R. tact Jackson instructions, challenge appellants’ to the intern, M.D. Thomas J. Poc- and associate Instruction No. 18 as sub which included kat, young child’s condition M.D. With ject objection most detailed at trial “essentially x-rays,” normal he producing upon appeal. Instruction No. and general pediatrician, was then seen á states: M.D., Sugden, appellee Richard whose G. physicians You are instructed building as Dr. office was the same surgeons are not liable for mere errors yet an- Little’s. Consultation followed with provided judgment, there has been a doctor, Lambert, L. appellee other Kenneth ordinary examination and care careful M.D., orthopedic surgeon. In a Jackson and skill has been exercised. regular as the period examinations words, if, continued, problem x-rays were tak- other from all the evi- child’s radiologist appears by preponderance by appellee reviewed dence it en and defendants, Everts, M.D., continued the acts or omissions of the with the Charles them, upon plain- finding essentially normal condition each or all of of an predicated clearly are in- medical evaluation. tiffs’ claims for the nothing an exercise of an b. There is volved and constituted to indicate that careful judgment, honest arrived at after approval made, honestly is not or necessary investigation, approval, judgment or the approved a. The a re- unreasonable, acts or omissions are spectable portion competent Then, defendants, each or all of reputable physicians surgeons them, are not liable.1 practice, same line of 1.Eight specific malpractice other medical in- INSTRUCTION NO. gener- given, duty structions were which included in surgeon It is the of a who al text: specialist particu- holds himself out as a in a medical, surgical healing INSTRUCTION NO. 8 lar field of science, or other The Plaintiffs contend that Michael Robert knowledge to have the and skill ordi- patient under Kobos was at different times narily possessed, and to use the care and skill Defend- the care and treatment each of the used, ordinarily by reputable specialists prac- ant ants, Plaintiffs claim that the Defend- doctors. ticing in the field same and under similar them, negligent each or all of were circumstances. their care and treatment of Michael Robert Kobos, specialist One who holds himself out as a negligence proximate was the diagnosis that field and who undertakes or injuries damages cause of and suffered speciality required treatment in his to use Plaintiffs. required specialist. the skill and care of such a Each Defendant denies the Plaintiffs’ claim INSTRUCTION NO. 12 against asserted him. prove negligence, necessary In order to it is proving The Plaintiffs have the burden of n prove by preponderance for Plaintiffs to a against by pre- their claims each Defendant a medical that a Defendant ponderance of evidence. given doctor failed to use the standard of care (The patient-doc- factual basis for the denial of foregoing instructions and such implicit tor status in the instruction is not de- proximate injury failure was a cause of the evidence.) monstrable from trial complained of. INSTRUCTION NO. 9 INSTRUCTION NO. 13 action, In this the Plaintiffs have the burden origin alleged injuries If the of the is ob- proving by preponderance a of the evi- readily apparent, scure and not or if respect there are dence with to each Defendаnt the fol- equally probable lowing: several causes of the condi- tion, negligent; prove 1. The Defendant was and it is the burden of the Plaintiffs to negligence 2. The of the Defendant was preponderance, through competent a ex- proximate injury cause of the to the Plain- pert testimony, among possi- medical tiffs; and alleged injuries ble causes of the a there is injuries 3. The nature and extent of the (that probability say, reasonable is to the most suffered, claimed to have been so the ele- was) likely negligence, any, cause damage ments of Plaintiffs’ and the amount each Defendant. thereof. INSTRUCTION NO. 16 determining whether an ‍​​​​​‌​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​​‌‌‌​‌​‌‌‌​​‌‌‌​‌‌‌‌​‌‌‍issue has been rendering You are that in instructed medi- evidence, proved by preponderance a of the patient, physician services to a a cal does not you should consider all of the bear- evidence impliedly guarantee warrant or the success of ing upon regardless produc- that issue of who operation. physician his treatment or The proposition ed it. The existence of such must impliedly possesses does warrant that he and probable be more than its nonexistence. professional will exercise such skill and learn- [Emphasis original.] ing ordinarily possessed by are medical as INSTRUCTION NO. 10 practitioners practicing in the same field and Generally, negligence means the failure to under similar circumstances. ordinary use care. INSTRUCTION NO. 17 Negligence term as that is used these presumes physician The law that a or sur- respect instructions with to the Defendant geon carefully skillfully has treated or physicians means the failure to exercise the operated patient. pre- There is no on his skill, diligence knowledge, apply and to sumption negligence from the fact of an the means and methods which would reason- However, pre- injury or adverse result. ably applied be exercised and under similar may sumption is rebuttable and be overcome profession members of the circumstances by preponderance and evi- good standing and in line of the same negligence or lack of dence which establishes practice. part reasonable care on the of a upon The burden is the Plaintiffs to show diagnosis, perform- surgeon in his medical his by preponderance of the evidence that each surgical procedures, his care and degree ance of Defendant failed to exercise the of care required patients. and skill from him. treatment 538 given 10 within the criteria of the rule that Instruction No. Fossos

Appellants assert timely objection of the law and after the at trial that the a correct articulation improper as that Instruction No. instruction would confuse or mislead Roussalis, P.2d contrary principle appropriate to Vassos v. as to the of law. (Vassos I) (Wyo.1981) Graves, (Wyo. and Vassos v. 661 P.2d 1032 Cervelli v. (Vas Roussalis, (Wyo.1983) 1983). 658 P.2d 1284 phraseology given simply The does II). agree. sos Wе duty bespeaks define a of due care responsibility to moral decision and hon 772-73, I, recog 625 P.2d at In Vassos instruction, esty, principal con usually nizing malpractice action stitutes reversible error. Intent is not a litigation, this court negligence ob form of negligence negligence pre factor of since served: cludes intended conduct. Indem. Globe physician-patient existence [T]he Blomfield, 115Ariz. 562 P.2d 1372 Co. duty. relationship established (1977); Negligence 3 at 473 C.J.S. § is re- is fixed as that which standard (1966); Keeton, The W. Prosser & W. Law light person quired of a reasonable * * * (5th 1984). of Torts 31 at ed. § malprac- A all the circumstances. one of those cir- tice contention is also leading authority A has been identifiable specific The more standard cumstances. Wyoming pro- criterion which within the physi- is that a malpractice actions applicable vides that there are two stan- skill, surgeon must exercise malpractice cian applied dards of care to be knowledge, apply must diligence and cases. methods, which would the means and first, charged, correctly which was applied and un- reasonably be exercised the doctor to the standard of care holds der similar circumstances members knowledge ability measured and standing profession good and his average specialist in of the * * * practice. the same line of good standing community in the where skill, knowledge, diligence, means practices. he This is the standard of “ordinаrily” methods are not those and Liability premised reasonable care. is “customarily” “generally” or exer- upon the failure to exercise reasonable applied, are those that are cised or care, measured. A doctor is also sub- so Neg- “reasonably” applied. exercised or requires ject separate duty to a excused on the ligence cannot be judgment, him to use his best but which practice grounds that others the same does not make him liable for mere error negligence. Medicine is not an kind of judgment, provided he does what he proper practice can- exact science and is after careful examination. thinks best * * * * * * gauged by a fixed rule. not be judgment charged “An is error of * * * not of such appropriate such circumstances are in a case where a doctor is and, knowledge, de- jury must common confronted with several alternatives upon testimony experts determining appropriate to ex- pend treatment prevent rendered, judgment plain the standard and thus exercises his to be conjecture spec- following on and one course of action in lieu conclusion based * * * words, in other an addi- ulation. of another.” question of fact must be answered tional Wachsman, Pegalis and H. American S. the circumstances are such that when 69, Malpractice of Medical 2:9 at Law § person standard is not within reasonable (1980) (quoting Honsinger, Pike v. 71-72 knowledge jury. оf the the common 201, (1898)). It is 155 N.Y. N.E. 760 Furthermore, noteworthy where a careful examination strict adherence to given clear alternative treatment locality appropriate. so-called rule is not exist, judgment that an error of courses Hospital Memorial Car DeHerrera v. charge may additionally appropriate. (Wyo.1979); 590 P.2d 1342 County, bon entitled to contend that II, Appellants ac were 658 P.2d 1284. We cannot Vassos not embraced in this the alternatives were acceptance of the instruction commodate since, nothing generally speaking, present case day professional practitioners in- during period skill, done medical voking the critical diligence, knowledge, ap- effectively treatment which addressed the plication of means and methods reasonable physical problem by x-ray as later disclosed under by persons the circumstances within analysis surgical intervention. profession. Clearly, as specifically we I, instructions must be considered as stated in “[negli- Vassos 625 P.2d at gence

a whole order to determine whether cannot be grounds excused on the the instructions as a whole are fair. But practice that others approve [or of] clearly the introductions must reflect the negligence.” same kind of Under the mis- presented factual situation the case as diagnosis non-action thesis of appellants’ applicable well as the law. negligence, claims of instruсtion improper. Williams, 1 D. Louisell and H. Medical Mal- (1988)(footnotes practice 11.38 at 11-134 § DENIAL IV. OF RIGHT TO CALL AP- omitted). The test of standard of care in a PELLEES AS ADVERSE WITNESS- malpractice ordinary case is skill and dil- ES IN APPELLANTS’ CASE IN igence possessed by members CHIEF profession generally. “Reasonable and or- skill, dinary care, diligence” is the test During trial, appellants were advised in 4 denominated Reid’s Branson Instruc- court, point which, at a as a conse- Juries, (1987 tions to ch. at 473 § quence, was near the end of their case in Cum.Supp.). similarly, PIK 2d See 15.01 at chief, that: (2d 1977) (although continuing ed. permitted You will not be to call the . rule). category locality include some Defendant Doctors as adverse witnesses apparent It is that there is a difference in because it’s the of this Court if concepts the. of the law between a bad they are called for direct examination result achieved with care and a less than opportunity have the to cross-ex- Excluding Wyo- careful bad choice. amine the substance of their testimo- ming rule, locality deleted Pat- Illinois ny, going go case faster. Jury properly tern Instructions inform: only upon That’s based not my experi- * * * [treating] patient, In ence, [doctor] general, quicker that that is a * * * possess apply must the knowl- way parties to handle adverse but it’s edge and use the skill and care that is upon also based what I’ve in. observed ordinarily well-quali- reasonably used concerning this hap-, courtroom what’s * * * fied in similar cases and [doctors] pеned respect in this courtroom with A circumstances. failure to do so is a individual witnesses. negligence malprac- form of that is called think You the Court is unreasonable. tice. length The Court believes that the of (1971). IPI 2d 105.01 at 319 examination of most of the witnesses in * * * this case has been unreasonable and that physician’s A conduct must be good deal of time could have against measured be[en] what a hav- respect saved with to—could have ing using knowledge, be[en] that skill and saved with examination and cross-exami- physicians practicing care of in the same nation that was more directed and to the practice field of in the same or similar point. locality at the same time would would

not do under same or the similar circum- week, Early following the the decision was stances. reiterated: (1988). Now, record, 2d 15:2 at 313 The mere CJI error for the the Court indi- upon criteria as relied the cated last that it would week not allow trial court for instruction comes from the Plaintiffs to call the Defendants dur- Wyo. 1, Wright Conway, ing require 241 P. 369 in chief their case and would (1925). concept put That is now subsumed the Defendants to them on the stand. Now, the within modernized standards for the reason that the Court did that Well, stage very at this is it’s doubtful testimony in the case is because game that the Defendants are the Court’s con- It was going slow. testimony We’ll going would to be called to the stand. opinion that the sidered examination handle the motions. go quicker if the direct know that after we doctors, testimony Okay. let’s deal brought out the So handle—We’ll right Physi- leaving testimony Plaintiffs with the Defendant of the go would And that that in chief cross-examine. in Plaintiffs’ case cians offered opinion of the in the considered quicker time that we deal with at the same opinion is of the go- the Court Court because that are motions for directed verdict of trial upon several weeks In morning. based other ing to be made this experience with wit- words, testimony several weeks of the appears that it being perceived as that are either going nesses critical Doctor is to be Defendant or are adverse by the Plaintiffs adverse verdict inso- any motion for a directed Plaintiffs, fact, witnesses, concerned, then the far as the Plaintiff is in Plaintiffs’ during cross-examination dealing position with that Court is in a gone slowly case, has the examination called. If by allowing that Doctor to be finds himself Counsel Plaintiffs’ because critical, can stand then the Court it’s during presentation position in the ruling do the previous that we’ll its * * * wanting to elicit from in chief of his case get direct examination testimony that is parties the the adverse through cross-exami- your crack at them to avoid case chief but important to his nation. parties, the adverse appeal prob- The status of the issue on. related to the defense is more which discussed, is not although it lematical since in chief. to the case is adverse which designated issue generally addressed as a percеives Court And because the by only Dr. appeal and is contested position, in that finds themselves Counsel litigants argument. Everts in None per- the Court perceives Counsel —or citations appellate brief have furnished very slowly and going ceives Counsel cannot, matter can or as a that a trial court during his carefully, attempting to avoid discretion, generally deny plaintiff chief, aspects of the unfavorable case opposing party as an ad- right to call an In parties. testimony of the adverse Hall, 708 P.2d Hall v. verse witness. Cf. unfavorable attempts to avoid those appellants. cited (Wyo.1985), goes slowly. examination aspects, problem not reoc- anticipation that the will thought Court, judgment, in its retrial, presently court need not cur on if the adverse nature could oc- explore any circumstance whether quickly, that Coun- laid out on table gen- this kind of a justify cur would alleviated— then be—would be sel would development by eral restriction on problem that Counsel faces or the litigant.2 testimony would be trying to avoid that out on the it be alleviated because would FOR V. DIRECTED VERDICT not have to be and Counsel would table RADIOLOGIST just come in and the could so careful but go quicker. process whole would being opportunity afforded Without radiologist as an ad- again reanalyzed by the to call subject to determine what his activi- in chief verse witness all other case trial court after been, may have the trial closing ties and function called as then had been witnesses in his be- granted a directed verdict adverse court segment with continued that trial appellants’ evidence. half at the close of denial: examination rights any (Wyo.1983), process, restriction penumbra due P.2d 699 Within the between 2. 371, 377, Connecticut, present litigants plan 91 S.Ct. case or for Boddie v. 401 U.S. and their 787, 780, (1971), reasonable pursuant 28 L.Ed.2d 113 and general evidentiary to W.R. exclusion evidence, presentation over control ‍​​​​​‌​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​​‌‌‌​‌​‌‌‌​​‌‌‌​‌‌‌‌​‌‌‍softly. should tread E. 403 Co., Inc., Manning 674 McCabe v. R.A. Const.

541 Thereafter, appellees’ granted, case after trial the directed had verdict been verdict, analyzed: trial court had directed court announcement ex-litigant testified as wit- appear It would to the Court this appellees.3 ness behalf of the other case that the uncontradicted evidence of appellants’ consideration of evidence and experts all of the is that Dr. Everts had cross-examination, justified the trial court duty diagnose; no duty that he had no explanation attorneys why oral he to treat. grant the would directed verdict: This the duty characterization of or lack radiologist thereof of directly con you And when look at all of the evidence (to trary reasoning to common determine respect to Dr. Everts in that sense with seen) may contrary general what light, and in then the Court con- that precedent. Clayton Thompson, v. 475 So. evidence, light cludes that 439, (Miss.1985) 442 (quoting 2d Hall v. Plaintiffs, most favorable to the estаb- Hilbun, (Miss.1985)): 466 So.2d 856 that did Dr. not lishes Everts [Ejvery duty doctor “has a to use his or properly rays fail to read x but that knowledge her and therewith treat evidence, best, at establishes that it was maximum, through reasonable, medical call for Everts. The recovery, patient, each with such reason- beholder, beauty eye is in the of the so to skill, diligence, competence, pru- able speak. practiced by minimally dence as are com- Now, finally, testimony clearly petent physicians specialty the same you diagnose osteomyelitis that can’t general practice throughout field of septic hip rays. in this case from the x States, the United who have available to rays say x At least not the can it that —I general facilities, them the same servic- way. diagnose You can’t the x es, equipment options.” [Emphasis rays. diagnose changes You can original.] changes cannot tell what the are. And cause arises when the omis [PJroximate if even one were to conclude that there duty sion of a contributes to cause the changes on 14 and 15 at were October injury. Gardner v. National Bulk ray plate of the x the time last and the Carriers, Inc., (4th 310 F.2d 284 Cir. Everts, last scan of Dr. the evi- bone 1962) denied, 913, cert. U.S. S.Ct. light dence in the most favorable to the (1963). Harvey 9 L.Ed.2d diag- Plaintiffs indicates that in order to Silber, 300 Mich. N.W.2d septic hip osteomyelitis, nose some- (1942). implicit cause here is “Proximate thing more had to done. And so even Indeed, duty. duty the breach properly a failure tо read there was empty if it did not itself em would be materials, radiology those two there’s no consequence as a of its brace the loss direct, proximate any evidence of cause Gardner, page supra, at breach.” injuries and the between failure posi- agree appellants’ Id. 445. We occurred, in- the Plaintiffs contend those II, 658 P.2d tion with reference Vassos being osteomyelitis sep- juries from duty exists and the 1284 that whether treated, hip which which con- tic questions scope duty of that are of law diagnosed by rays. x ditions cannot be also the court. Id. at 1287. We would appellants’ agree authority Intrinsic to case was with case law and text evidentiary duty radiologists responsibilities pa- discussion have report physicians radiologist to examine and which is to other which are tients and pathologists those of encompassed within a standard due care similar to —accurate Williams, diagnosis. 1 Louisell and H. In D. patient. to his earlier discussion before glow- remaining Appellees, and while still Appellants of the di- characterize the status 3. innocence, ing verdict for Everts: rected with the halo of damned young Michael emphasized Appellee Mott as the cause of must be that after William It devastating injuries. verdict in his favor Everts received a directed Kobos’ appeared expert witness for he at trial as also, not the failure of Dr. Charles whether or See Keen v. supra, at 3.23 at 3-82. § radiologist Prisinzano, 100 Cаl. to meet the stan- Cal.App.3d Everts as (1972). Factually, any the circum him Rptr. required of had dard of care in x-rays Mikey taken that after were the condition in stance relation to causal medical City immediate ultimately Lake clinic and as hip Salt resulted Kobos’ required, ade belies attention found to be films? it on these you’ve described pa given to the quacy of the earlier care yes, and question The was answered radiologist to the ex by the Jackson tient floundered on a lack requested opinion fact for the question tent at least that competen- objection as well foundation DeHerrera, P.2d created. jury was Inquiry of counsel fol- as sustained. cy responded: the trial court lowed and witness, appellants early an As you me to tell THE COURT: Do want who, after Dr. Maurice O’Connor called record, Jury? you on the in front of the spent graduation, school initial medical Beg MR. ANDREW HARTNETT: military then ser general practice, in time pardon? your vice, special was trained for and thereafter me to tell you THE COURT: Do want radiology. in diagnostic in While ization record? me on the [sic] graduated from law pursuit, he also May HARTNETT: MR. ANDREW activity described his and has since school off-the-record, you I would rather tell me pure medicine in the as 75% 80% Jury. presence out specialty and diagnostic radiology 20% Extend Okay. just in forensic medicine. Then let’s or less THE COURT: 25% ed, detailed, objection start and continued it where it sits. leave the last first and continued to ed from the then The thesis of the trial court was during and one- the two of his previously quoted explained by the later he a witness. day session while half directed verdict. Essen- granting order by ap- denial of principal The came attack legal tially, presents a determi- the record properly could pellees that the witness divergence record with the factual nation diagnosis opinion that the medical state an doc- responsibility of the medical as to the sooner child should have come small radiology. specialty of practicing in the tor should have been better and the treatment appellants the trial court denied to appellee regard to the service all com- opinion to intrinsic witness type category, In witnesses. broad of care re- pletely define the standard developed ad inquiry that has since been quired. Outcrop this court in dressed Wasser appellee Dr. Everts noteworthy It how (Wyo.1988). burger, 755 P.2d radiologist’s partic- brief describes by ap- Despite objections constant those ipation practice: medical specifically testified pellees, Dr. O’Connor plain interpreted Everts read perform- opinion in his the standard of films. x-ray films and the bone scan radiologist Dr. Everts fell below ance of re- regard Everts submitted written appropriate care. An at- the standard part hospital ports which are a examining tempt denied in was further procedure The actual records or chart. insufficiency to connect described witness films, plain films taking both the later radiology service cause to the films, by tech- scan is done and the bone sustaining hip condition. In lat- discovered by Everts. This is the nicians and not court stated that objections, the trial ter taking procedure method or usual from an Jury doesn’t need assistance “[t]he radiological proce- tests or interpreting objection expert in that area. sus- touch Mi- following ques- did not see or Subsequently, the dures. Everts tained.” plain respect to the tion was asked: chael Kobos with actively participate films and did not record, Well, I to ask for the have generating the bone scan procedure radiologist tell put your hat and back offered opinion films. Several of the exhibits you have an me whether reports Appellants copies primary include of the care to the extent of Everts; however, are within the same their involvement. 2). (Exhibit hospital chart/record It would seem characterization that plain x-ray designated films are Ex- ship slipped had sails somehow for di- through hibits 9-1 9-22 and the bone granted rected verdict to be after the ex- designated scan films are as Exhibits testimony pert given had been through 11-7 11-10. radiologist in performing a service of ex- Therefore, the involvement of Everts amining reporting x-rays did not entirely interpretation of his consists required meet perform- standard of x-ray September films taken on plain negligence ance. An present- issue was 15, 14, 9, September and October analysis ed. liability, See detailed 15, bone scan films made on October Clayton, So.2d 439. Appellants’ problem with medical Surprisingly, questioned it is that Dr. testimony relating radiologist’s to the stan duty patient. Clearly, to the Everts owed yet dard of care did not end. Called as a contention should not in factual principal appellants witness for was San dispute today’s record from this or within Francisco, orthopedic surgeon, California physician perform- If medical world. Harrington. inquiry Dr. Kevin After de ing expects to patient the service for a veloped by appellants examination of duty when paid, he has the of a doctor to his present opinion started to of the patient. Dr. Everts was a doctor and Ko- wit radiology regard patient purposes. bos was his ness to the standard of care of Really radiologist, very at issue was due care of the medical extensive camera practitioner. When the directed verdict discussion followed after which the trial ap- granted, provided by open witness court ruled court statement to the pellants unquestioned competence and jury: experience medical had on this record testi- jury. Ladies and Gentlemen of the (to permitted) adversely

fied the extent Harrington has ruled that Dr. Court compliance with that care standard. due express permitted opin- shall not be an ion, directly indirectly, either cоncern- radiologist duty Both the to make ing x-ray whether the and bone scan adequately communicate a correct di- negli- analysis done Dr. Everts was agnosis Phillips is discussed v. Good gent or careless or whether it was care- Hospital, App.2d Samaritan Ohio prudent. Any ful and further (1979), summary 416 N.E.2d where Harrington shall not be viewed judgment was reversed as that court said: by you applicable considered Weighing competing infer- the facts and required of Dr. standard of care Everts. ences, must, light most as we favor- objection Dr. Lambert’s at the party opposing summary able Harrington of Dr. to the effect that Dr. possible judgment, it is to find the exist- scan, Lambert should have read the bone relationship ence of a causal between a himself, has is without foundation and duty injury and the suffered. breach * * * sustained the Court. been physician-patient Once the rela- procedure by meant in trial What this exist, tionship as could has been found to re-, ruling orthopedic court was that the sur- here, professional found well be geon competent express opin- despite sponsibilities and duties exist x-rays, ion which would also serve to remoteness, about proximity, or the lack responsibility isolate that doctor from contact between the two as where a con- radiologist made a sulting whether or not the had physician is involved in the case Furthermore, Therefore, mistake. this standard of a limited manner. all practice that the physicians involved in a case shаre in the medical would establish responsibilities practitioner independent orthopedic same duties and had no 544 ques- the

responsibility knowledge his of to extent that a reoccurrence of to utilize patient in and treatment.4 x-rays diagnosis might again develop. tion Finally, standpoint appel- of from the developments the worsened lants as to Drs. Directed Verdicts Granted a. character, objection way taken to was the Lambert, Pockat Sugden, Little and orally to be present-

this trial evolution was Defendants’Jury Entry the After of jury: the ed to Verdict. any such My concern is that instruc- The discussion of this issue considerable itself, of Jury, tion to the intends litigants present any justi- not does credibility of reflect on the Dr. Har- to question ciable for us to now determine. additionally prejudicial rington and to jury, The to which case was submitted no and that instruc- the Plaintiffs case presently justify our deci would not now point at this in the evidence is neces- tion subsequent sion on directed after verdict expressed sary all. has not an at He would, however, ob favorable verdict. We regarding nor he opinion Dr. Everts has involving serve that citations to cases expressed opinion an as to the failure of notwithstanding judgment the verdict are way interpreta- any Dr. Lambert his misplaced, since a notwithstand qualified tion. He is to read them and ing adversely is directed at verdict to interpret them himself and instruc- tack and not as a the verdict to serve grossly prejudicial tion would be to See Baker v. compatible substitute. Plaintiffs. Helms, (Ala.1988) for 527 So.2d 1248 not expressed The concern was without evidentiary concluding test. In that this progression unjustified in case substance particular problem likely not reoccur will development. as a trial conclude We that n retrial, upon a further review becomes un the restriction on the witness’ justified since this result with another fa unjustified constitutes an of abuse applica vorable could not verdict call discretion.5 Mayflower Restau 50(b). tion W.R.C.P. VI. OTHER ISSUES PRESENTED Griego, rant Co. v. (Wyo. P.2d 1987); Simpson Bank Western Nat. a retrial is re- determination Casper, quired, (Wyo.1972). we would consider other issues 497 P.2d specific Obviously, 4. The and ratio the cumulative can- decision decidendi characterization subsequent- the trial court to not sustained in face of was stated counsel: now be granted ly directed verdict on basis of fail- [prior judge] The Court notes that re- proof ure of of a violated Conse- standard. quired designate experts the Plaintiffs to quently, ceived, justification, per- to be one is require in that Plaintiffs would this case to generalized principle be found in a must proof among meet their burden of those orthopedic surgeon qualified an experts radiologist. among Also those [was] standards, testify radiology as to as a matter experts surgeon. orthopedic an Two [was] law. doctors; separate separate physicians. two therefore, Court, rules under Rule 403 totally 5. It consider would not dissimilar to Harrington of Dr. that because the qualified critique jurist that a cumulative, radiology the area will be it analysis of his or academic research assistant will not be considerations of un- received supervising architect review the sufficien delay Supreme If due and waste of time. cy product. work the contractor's my Court I have abused discre- believes that Physicians ruling, specially discretionary knowing are not trained in tion in who such a diagnostic roe[n]tgenology sitting may capable about trial than more this difficult I do it, ulcers, losing developing many X-ray interpreting then it films with reason- hair accuracy, general they ruling able but as a rule is the of the Court Mr. Vlastos' exclusively objections rely upon their own are sustained. Sustained on should not indicating interpretation, except very simple basis that no foundation cases or there's coming special competent or is their field that Witness either knows in cases within own standard, type urology orthopedics. such to establish what —either Williams, supra, and H. knows can establish those standards under D. Louisell indicated, added). radiologists opposed orthopedic (emphasis 3-86 As surgeons orthopedic specialist. practice. Harrington must was an appear appellee appel- pediatrician that with significance perspective topic pediatricians other only relative to the listed as ex- lants is being defense, “cu- pert app excluded as witnesses for the medical witnesses presented of problem present pediatrician expert The is to mulative.” effort a wit- that first court’s decisions ness to a standard establish of care and its testimony on violated expert witnesses likely violation would be cumulative. cumulative, then standards of care is Additionally, patholo- the relevance of the support appellants’ by case without gist pathologist to contest of a expert opinion testimony to proposed placed succeeding who the blame on the recovery by directed verdict on foreclose Mott, surgeon, extraordinarily seems insufficiency proof.6 the basis of retrial, confined. na- With cumulative prospective inquiry ture of should be more Testimony Denied Tendered Wit- b. clearly by rejection delineated if the record nesses. reoccurs. challenge Appellants the denial of record, From support this for the exclu testimony to elicited from tendered carefully sion criteria defined Towner v. proposed Appellants had three witnesses. State, (Wyo.1984) 685 P.2d 45 is estab expert testimony planned present to from lished. This court there said that “Rule Lag- Madoff and Dr. Michael Dr. Lawrence extraordinary remedy is an [W.R.E.] ios addition to the adverse examination sparingly which should be used since it appellees. Both witnesses had been allows the court to exclude evidence which deposed by appellees appellеes’ at conve concededly probative.” is relevant and Id. pursuant specific nience to trial court or case, at 49. In the instant where two of Lagios pathologist at der. Dr. was a Chil appellee pediatricians doctors were Francisco, Hospital in dren’s San California appellants right were disallowed the to call Madoff, pediatrician. Originally, and Dr. witness, pediatrician as an pretrial objection had been taken to the late Discretion, justify. rationale is hard to designations. being deposed by Then after event, any has its limits as said in we following change trial court order in trial State, (Wyo. Martin 720 P.2d v. judges, objection presentation to trial 1986): on their medi was sustained the basis that composite Judicial discretion is a opinion testimony cal “would be cumula many things, among which are conclu- designation tive.” issue of late will criteria; objective sions from it drawn trial, not reoccur with a new and conse means a sound exercised with quently, pathway its in this ex tortuous regard right to is under the circum- what pursued. tended record will not be Our doing arbitrarily stances and without so consideration of the cumulative issue as an capriciously. of discretion is colored exercise sub case, sequent malpractice plaintiff decision of the trial court after In a medical emplacing requires expert testimony proof. verdict that a directed Harr verdict Grizzle, inadequate proof proper. (Wyo.1981). was Wе are also is v. 625 P.2d 747 present by incomplete pathologist’s testimony distressed in decision Denial of the is opportunity prospective similarly questionable to evaluate the tes where the defense is “cumulative,” timony very postured approach lay since its on an to the blame nature, operating surgeon by it would have relevant and onto the defendant’s been any pathological testimony. Availability material if circum admissible. Under development plaintiff similarly stance the contextual tendered to is witness categorization pursued litigant required permit this case with the to have the court, by counsel and the trial it opportunity would same to have eleven men complex, heavily argumen- judgmental 6. This contested and diets mistake cannot create lia- tatively pursued bespeaks concep- nothing bility record if that decision is either that wrong anything: tion of the trial usage court accommodated or not to do so that something wrong liability develop. of Instruction No. 18 and directed ver- can done least, Moreover, entirely it is ter. at times all witness- play. At field insist, party to provide reasonable for a “One es substan- reasonably available two or three good, witness will permitted tive have been evidence should stronger, my much make case even the trial court executes or testify before though in a similar testify to a all vein.” plaintiffs’ case to be will least exiles never short, judge of the trial thе discretion general law is accord. See land. must Davis, (5th exclude evidence cumulative F.2d United States fashion, discriminating exercised in Cir.1981), approval with cited court wisdom, particularly Towner, where evi- 685 P.2d at where evidence goes issues of question dence cen- “independent corroborative importance in case. 2 D. tral the on See likewise a material issue.” Mueller, Federal Evidence C. Louisell and Mueller, supra at 2 D. Louisell and C. 74- (1985). As is stated in J. Wein- 128 at 68 § (footnote omitted). See Hill v. Bache 75 Berger, M. Weinstein’s Evidence stein & Shields, Inc., F.2d Halsey 790 817 Stuart 403-95, (1986): 403-99 § 403[06] O’Hara, (10th Cir.1986); 759 Bower v. F.2d Certainly, Rule 403 does not mean that (3rd Cir.1985); States United v. may a exclude evidence that will (5th Cir.1976). court Fessel, 531 F.2d delay regardless probative of its cause The trial court retains considerable lati- crucial, evidence is the value. If the admittedly tude even with relevant testimo- in ex- his discretion judge would abuse ny rejecting in is evidence which cumula- cluding it. requiring tive or in that evidence be in brought jury’s to attention surprisingly similar as involv- the manner In a case However, likely ing testimony pediatrician of a wit- least to cause confusion. denied litigant opportunity ness, the “is entitled to an to the court in Johnson v. United (11th Cir.1986) relevant, competent re- adduce evidence bear- States, F.2d 902 ing on the tried.” plain- Hamling court’s decision and issues to be versed the trial 87, 125, States, the witness to testi- United 418 U.S. S.Ct. tiff’s verdict when was 590, Quoting 2911-12, reh’g fy 41 L.Ed.2d denied ‍​​​​​‌​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​​‌‌‌​‌​‌‌‌​​‌‌‌​‌‌‌‌​‌‌‍for defendant. Weinstein 157, 42 approval, L.Ed.2d 129 appellate court found the trial 419 U.S. 95 S.Ct. the (1974). Thus, in the an of context court’s action to be abuse discretion. evidence litigation repetitious expert merely The is testimony of the witness had excluded, present- consuming may time been excluded as cumulative when substantially if time support ed the of two consideration out- to weighs probative in the death The the incremental value of other witnesses case. Graham, appellate litigant proffered the M. court considered evidence. Hand- (2d in 403.1 at 179 right, had the this case United States book Federal Evidence § 1986). government the federal Tort Claims ed. under Act, testimony which more present was proposed The denied comprehensive partially and at least non- (Perkinson) is Betty witness Perkinson sub pediatrician through use of a cumulative stantively compliance complex. In with tri pediatricians testify opposition in who filed, orders, appellants al court had as a plaintiff. presented by were witness, notice of additional Perkinson’s principles are

The involved well-stated: testify name. That would witness (Fairbanks), receptionist entirely dupli- is all evidence which Jane Fairbanks Not Little, in office had told her therefore cumulative and ex- of Dr. cative is degree deposition may vary improperly she had answered cludable. Evidence ex recalled persuasiveness, and when an item of amination when asked she proof point very on a Kobos which is offered number times that Rebeccа had persuasive telephoned Following im- doctor’s office. different character pact proof designation, filed previously appellee from an item of Dr. Little a mo received, prohibit the former con- tion limine to Perkinson cannot be from merely being called and the sidered “cumulative” of the lat- as a witness motion subsequent statement of admitted untruth. reject- then during trial and considered was court, by the trial approached As first ed. inquiry the initial motion in limine to on sequence developmental events The sustained an at- secretary office interesting. It is indicated the issue is through prove telephone calls tempt to record, although copy deposition guise testimony offered under the hearsay included, appellants when took premise of the denial impeachment. prospective Fairbanks deposition of witness appellants aspect of the examina- Little, that secretary for Dr. the office juncture is unclear at this tion of Fairbanks not recall testified she could the witness question for appeal. The foundational telephone calls were made to the many how in limine impeachment excluded during the patient’s mother office that the testi- decision as to Fairbanks so subsequently discover- period. As defined foreclosed in ad- mony of Perkinson was evidence, planned to tender appellants ed lacking anything impeach. vance as acquaintance of the wit- testimony from an present posture is found problem issue Perkinson, ness, as noticed as an unex- the motion in limine as justification Fair- state that pected witness who would limiting inquiry regard of a to a witness banks, secretary, said to her office had fact, If, prior inconsistent statement.7 my deposition, “I lied at after the sometime testimony her sworn that would have been lawyers “The asked how deposition.” depo- the jury the as consistent with before over a Becky times Kobos called many to and inconsistent with statements sition I “I told them specific period of time.” in li- acquaintance, then whether the the help “I about to didn’t know.” wasn’t properly emplaced mine evidence would be in the lawyers.” Then to conclude those prior incon- impeach to as to the fact women, the two Fair- conversation between justi- a more sistent statement would have one hell related “that woman called banks presentation. We fied structure for issue of a lot.” presently assume how the witness need inquiry, the office For camera trial if might testify at trial and she hereafter ap- by examined secretary Fairbanks was recollection, of denied continues a course in limine pellants, after a motion was which the trial court has discretion whether any of granted against by appellants use The truth is to be deny impeachment. the testimony from her which would invade said in in either what the witness found telephone of officе subject of the number stated deposition or the other witness what alleged and also the discus- calls received subsequently said. We do not find a she deposition testimony on the sion of her obviously since the the- relevancy question Consequently, ap- subject parental Perkinson. prove with ory appellants of give if pellants contended that she were effort to secure concern and continued jury, recognition testimony satisfying the she medical the same before some more again deposition. increasing physical problems in the perceived lie as she did would by appel- boy. Consequently, we do baby of the examination of their The direction im- necessarily the by motion in limine was determine whether lants as denied the subject to discre- inquiry peachment the examination deposition wit- to revisit the court, by but do consistent, exclusion the ness, impeach then tional alleged argument appel- statements made to Mrs. inconsistent We do riot understand 7. question the foundation lees in brief that Perkinson. confusing Thereafter, in consideration subject never asked which was finalized: during the in camera of what the trial court said else, appellants’ Anything Andy at- [one questioning of both women: just telling you torneys]? how the cow ate I’m questions for this witness If have more cabbage. her testimo- on the substance of [Fairbanks] ANDREW HARTNETT: I understand MR. given you certainly going ny, are to be then eaten, your cabbage Honor. has been that the questions. оpportunity her those to ask right. COURT: All THE there will be no But this Court has ruled and questions respectfully I MR. ANDREW HARTNETT: concerning asked of this witness disagree with the Court. impeachment through prior foundations for Although application in Owens is dif- submitted for denial to not find a basis inquiry of involving testimony the foundational appellants of ferent as substantive secretary. the office impeachment, the rather than character- ization which it afforded is relevant: in Channel v. This court had occasion State, to consider (Wyo.1979) P.2d 1145 strange, example, It for seem would impeachment evidence issues and direct can avoid introduc- assert that witness ap- implicit 802. Clear in W.R.E. proceeding testimony prior tion from a by appel- proval process undertaken his trial that is inconsistent with testimo- provided that a is indicated subse- lants ny, 801(d)(1)(A),by simply Rule as- see given. spe- quent limiting instruction is serting memory lack of of the facts to decision, here is we have cific what prior related. protect the office trial court determined to here, Owens, S.Ct. witness impeach- secretary from the “travail” could statement she remember by being the contention of ment faced with calls, telephone number of was isolated per- committed her later that she statement trial court order from about her deposition then reiterated subsequent mis- comment of deliberate which indicated camera examination statement. posture her for the intent to continue that opportuni- jury рresentation. Denial of the Appellees' tailored their defense to the ty appellants to establish foundation impeachment denial on an decision abuse first of impeachment for the two concept clearly wrong in discretion as not limiting justi- cannot be trial court orders Weaver, citing Waldrop v. 702 P.2d 1291 fied direct citation of authorities Prater, (Wyo.1985); 675 P.2d Brockett v. presented appellate briefs. Co., (Wyo.1984); v. Carey and Bacon prior inconsistent Detailed review the (Wyo.1983). 669 P.2d 533 None of those inquiry use and function is statement impeachment cases of involve contended recent found in two A.L.R. annotations.8 perjurious testimony. Canyon View in Channel cites It is notable that this court v. Power 628 Corp., Ranch Basin Elec. the first annotation and then second P.2d (Wyo.1981) presents 530 as also cited part of annotation cites Channel as relevancy question. a The one case of concept per- progressively developing character, similar somewhat Diamond prior mits use of inconsistent statements as Corp. Empire Corp., Management v. Gas in defined circumstances. The not evidence (Wyo.1979) 594 P.2d 964 addresses im- subject hearsay of of dissimilar use peachment denial as harmless error since prove prior if the witness is statements compared testimony essentially memory now con- unavailable lost dissimilar. Supreme sidered the United States perjury that the record establishes approving usage term in Court the 1988 was a the trial contention concern prosecution, for see United criminal States 554, 838, presented court did not want to Owens, 98 be 484 U.S. 108 S.Ct. (1988). if true.9 L.Ed.2d 951 —even First, Annotation, (1977) (under inquiry 8. Use Prior Inconsistent 53 L.Ed.2d 229 fairness of Impeachment Testimony admissible); limiting Statements instruction was with of of for 613, Rules Witnesses Under Rule Federal Evi (4th Morlang, and United States v. 531 F.2d 183 dence, (1978) Fed. and the later 40 A.L.R. 629 Cir.1975) (inadmissable). in- See comment and Annotation, Admissibility Prior Use or Incon authorities, citations of text 120 F.R.D. cluded sistent Statements Witness Substantive Evi (1987), relating 299 to W.R.E. 607. They dence to Which Relate in Criminal Facts Cases, A.L.R. Case—Modem State (1984). 4 414 brief, quotes appellee As Little in his subject problems presented has reasoning related: court’s federal since not conflict in the courts. without argument I “THE COURT: on it last heard Garcia, compared To be are United States v. night. trip special a I made the Teton Cir.1976) (5th (approved F.2d 650 give limiting and failure to County Library Law and secured from that error); plain instruction was (8th library legal I took Rogers, materials which then United States v. 549 F.2d 490 Cir. 1976), 2182, home, along depositions of with the Mrs. Fair- cert. denied U.S. 97 S.Ct. BROWN, J., Retired,

Yet another conflict dissented appeal. In cross-examina presented part part and concurred and filed Little, appellants’ in tion of Dr. counsel opinion. quired experience his in the treat about osteomyelitis CARDINE, Justice, ment of children who had specially Chief irrelevancy septic objection An arthritis. concurring. inquiry followed an

was sustained. The opinion and, I concur of the court discovery compel earlier motion to respect with to instruction number required ques to answer had the doctor strongly urge that this kind of instruction MB, concerning tions his treatment given jury. should not argument, It is patient similarly diagnosed specific with a Thus, confusing. and it is it is incorrect to relevancy may condition. The indicated say physicians surgeons are not if we were to review the documents and judgment. for mere They liable errors of discovery, file furnished but it is not in this record. Without an offer are liable for error of if those trial, proof this record fails to afford us negligence, errors result from that is “the disagreement justification with the skill, diligence failure to exercise the * * * * * * discretional decision of the trial court. As knowledge reasonably exer- * * * exchange sumption of fact brief are not profession cised members of the adequately presented for an offer of able good standing and in the line same Nicholls, proof in trial. Nicholls v. 721 practice.” (Wyo.1986); Majority P.2d 1103 Work The balance of instruction number ing Interest Owners in Buck Draw Field say seems to that if the acts and omissions Wyoming Area v. Oil and Conserva Gas of the defendants are an exercise of honest Com’n, (Wyo.1986). 721 P.2d 1070 tion unreasonable, judgment, and not defend- We reverse and remand for retrial. ants are not This liable. likewise is mis- leading questionable and a CARDINE, C.J., THOMAS, J., statement of special opinions. question judg- filed concurrence law. The is not whether the night, my purpose banks. And after last I have dinner did doesn’t or the affеct of im- reading deposi- own on the law. I read the peaching credibility of Mrs. Fairbanks Fairbanks; tion of Mrs. I studied the state- thereby discrediting weight giv- to be proposed testimony; ment of the came back testimony, only testimony being en her morning; argu- into Court this heard more called, then, testimony Mrs. Kobos’ that I on the ment issue. The Court doesn’t feel the only purpose testimony other for the is to any legal need for further reference. So asserted, prove hearsay the truth of the much, Hartnett, you very thank Mr. but I hearsay would be otherwise inadmissible. don’t them. want Now, proffered testimony this does some- ANDREW MR. HARTNETT: I take that as thing proffered else in this case. This testi- order that I should not an address the Court inference, injects mony into the case an legal argument? with implication, being Dr. Little’s a bad man that Yes, THE COURT: because it’s a matter by per- surrounded those who would commit law, facts, you now of the not of the and can Now, jury. judgment is the of this Court it bring up Supreme this or the law with watching carefully after Mrs. Perkinson and Now, any you Court at time want. the Court considering aspects after all of this case carefully has listened to the of Mrs. case, lawyer that if I were a Plaintiffs in this I Perkinson. The uncontroverted —the uncon- Jury like have the think that on the would to evidence in case troverted will that perjurers other side of me a bunch and are Kobos Mrs. called Little’s office in late by people perjur- who would be surrounded August early September of 1981 to ex- Now, perjurers, ers. if there are thеre are press prof- her concerns about her child. The remedies for that. But the remedies are not impeach any fered will not evi- Judge in this courtroom at this time with this contrary. dence to the impeach The evidence doesn’t Jury. remedies with Fairbanks, or with this Those are testimony being Mrs. her Prosecuting Attorney, County prob- the Teton that she doesn’t no recollec- recall. She has ably Judge Troughton, per- than John other surprising. tion and that’s not you I couldn’t tell haps Judge perhaps Ranck and other Defense I who called me last week. know had telephone Counsel that are seated in this some calls earlier this week but I than those Thus, and, clearly, Jury. tell who called me. if it courtroom a different can't negligence simply the term defined surgeon that physician ment jury. for the physi- whether the honest or dishonest skill, diligence, exercise cian failed to THOMAS, Justice, concurring reasonably exercised knowledge specially. 18 states as a number others. Instruction I with result acts am accord physician who matter law opinion. majority I have reached reasonably is not liable. honestly and respect my own with to the some views of unreasonably honestly and ifWhat he acts engendered Instruction No. difficulties reasonably? dishonestly and —or acts may accommodate and those views exceedingly is con- This kind of instruction objection to in- closely more that, fusing. the instruction as than More quoted plaintiffs as in the struction lay that a sаy terms a whole seems to separate opinion per- Brown. I of Justice reaching honestly acts who requiring as No. 18 ceive Instruction That is judgment not a cor- is not liable. approval jury accept the defend- rect of the law. statement long by expert ants’ witnesses so conduct these majority kinds the vast approval honestly made cases, define for the enough it is separate opinion, In his was reasonable. terms, simple negligence cause pointed Chief Justice Cardine has out some number and other stated instruction inconsistency in that internal instruction. opinion. in the court’s found instructions Beyond departure es- its inherent from significant portion of re- Where a rules, legal my perception tablished community approves sponsible medical two instruction that it does create a is standard injury same different for the treatments recovery which conflicts with other in- negligence condition, physi- not for a it is given by structions the court which were cian to treatment over the oth- choose one quoted majority opinion. and are in the me, not error Particularly, er. For that does involve an it to me to appears be anti- simply negli- It is at all. thetical to Instruction No. gence to either treatment. An ex- choose Furthermore, not consistent it is with the ample procedures medical for treat- two general instruction, Instruction No. ing the is the same condition treatment of a jury’s role re- which addresses Neurologically ruptured the disc is disc. spect credibility of all witnesses. It is Orthopedically removed fusion. without more even inconsistent with Instruction Both are fused. courses of vertebrae relating expert 6No. witnesses which common, accepted by treatment are reads as follows: responsible community, gen- medical and it person qualified testify “A as an erally negligence ruptured to treat a expert knowledge, skill, special he has disc in either fashion. expertise, training, or education suffi- qualify cient to him as an on the may

An A error is a mistake. mistake subject to which his relates. may negligence. not result from But what gained telling jury is by “Duly qualified experts may give the that an error their carefully opinions result in liability? questions made does not on in controversy at a argumentative. It is trial. To confusing. you deciding It is It is assist in such implies questions, may a clever play you opinion on words which to the consider the jury it, given by is not with the reasons if any, that a liable for an expert gives opinion. error in the judgment. To who the You ‍​​​​​‌​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​​‌‌‌​‌​‌‌‌​​‌‌‌​‌‌‌‌​‌‌‍balance the instruc- tions, may also given, qualifications if consider the number 18 is the and court credibility ought expert. of the jury to that a advise the mere error in negligence phy- is for which a accept “You are to not bound such an surgeon sician or if is liable error opinion conclusive, such give but should to negligence. stated, results from As weight you it is it the find to which it to be better that neither instruction given disregard may entitled. You any such by unreason- case in chief which was thеn followed

opinion if find it to be proof, directed for lack of all made verdicts able.” deprivation the of a fair painfully obvious clearly This has articulated the court plaintiffs trial so far as the were con- prerogative it is the of the proposition that cerned. is trier of fact to determine what evidence right denying plaintiffs I add that the the dependable. E.g., Wyo most ex rel. State Colvin, the Compensation v. to call defendants as adverse witnesses ming Worker’s presenting is not a (Wyo.1984); Cederburg v. their case chief 681 P.2d 269 Carter, ruling. (Wyo.1968); neutral When called the case 448 P.2d 608 Cimoli v. defendants, presented by P.2d counsel have Greyhound Corporation, 372 opportunity (Wyo.1962). The vice in Instruction No. 18 a clear to tailor the attached, that, in chief. Cross-examination then can be subject is to the conditions severely scope limited to the of the direct by jury required is the instruction examination, not, may and it turn out to be expert testimony. That is accept the impossible plaintiffs present for the not, jury The is not and should law. significant points supporting theory. their they required accept it even find it to Furthermore, a substantial difference ex- be honest and reasonable. presentation by plain- ists between the addition, assigned this court also has tiffs, through questions permitted on cross- jury the specifically to the evaluation points examination of salient followed witnesses, expert suggesting that their tes explanation, and converse whiсh timony accepted. E.g., need not be Ouk present the defendants first of all their (Wyo. rop Wasserburger, 755 P.2d 233 plaintiffs story and counsel for the must Metz, 1988); Thomas v. 714 P.2d 1205 try prepared planned then to attack a and Hunter, (Wyo.1986); 663 P.2d 513 Reed v. presentation. weighing In the context of (Wyo.1983). An additional vice in Instruc testimony, the latter is far less favorable jury tion No. 18 is the statement that the plaintiff, why plaintiff per- upon must find for the defendants based call defendant as an adverse mitted to approval “respectable portion of the in his case chief. witness competent reputable physicians or sur geons.” The tenor of the instruction is Justice, BROWN, Retired, dissenting to the function heretofore as antithetical concurring part. part signed jury by our cases. majority giving holds that Instruc- The problems These with Instruction No. 18 tion 18 was reversible error. It Number rulings other were exacerbated appellants’ challenge to instruc- states that judge. district His limitation the use of principal appeal. issue on tions is the expert plaintiff and witnesses particularly court was wroth because testimony by limitation of some of those judg- trial court used the terms “honest witnesses troublesome. members instruction, “honestly” in ment” and its that, jury could have concluded “bespeaks in and states that the instruction did, addressing these matters as he responsibility moral decision and hones- clearly position judge indicated his ty.” called witnesses In the context of Instruction Number among “respectable plaintiff wеre not eight malpractice instruc- and the other portion competent reputable physi- tions, that the could it is inconceivable surgeons.” cians or The demand for a thought defendants’ have been misled competent “respectable portion rep- long conduct excused as as their would be physicians surgeons” utable also is con- judgment morally not fraudulent or ruling respect trary judge’s with improper. matters, testimony. cumulative These to- gether Dic- with the refusal of the court to Third New International Webster’s (1971), permit plaintiffs tionary to call the defendants 1086 defines “honest” in facts,” presenting part presentation as witnesses in their as: of the adverse “candid 552 may give pretense/’ peculiar or “of a the benefit their

“free of ostentation Honesty on A judgment is defined and individual and skill. creditable nature.” facts.” page lawyer, example, “adherence to the does not contract the same as for context, lawsuit, “hones- to give In “honest” and to win a his best the words 18 could ty” opinion ability. used in Number He been Instruction and has never the facts and the liability mean adherence to in for a fail- damages held rationally thought not oth- jury disputed could have questions ure to determine erwise. in with final deci- law accordance their appeal. sion It would be courts precise “hon Arguably, more than terms physi- just as unreasonable hold a “honestly” could used est” and have been responsible for an cian honеst error However, these terms in the instruction. judgment problems so uncertain as Beard, Wyo. v. 56 not novel. In are Smith presented surgery are in and medi- 375, 260, (1941)(quoting P.2d 270 Stal 110 cine.” 276, 264, Holm, Minn. 111 och v. 100 N.W. “ [Staloch,] 280-283, 111 100 Minn. at N.W. (1907)), said: ‘It would 267 this court * * * at 266-67. re physician to hold unreasonable sponsible judgment for error Moreover, an honest protecting physician in presented problems on so uncertain are liability judg- from for mere errors in ” (Emphasis surgery medicine.’ and diag- choosing ment in between alternate added.) treatments, noses or this has fol- court recognized by least 29 lowed rule page opin- Appearing on the same Keeton, jurisdictions. other See also W. Smith, judgment” terms “honest ion Dobbs, Owen, D. R. Keeton and P. Pros- “honestly are made” used. Justice ser & Keeton on the Law of Torts 186 using terms certainly Blume was not (5th Ed.1984). honestly opposed honest and fraudulent, larceny (emphasis at 814 added footnote lying, terms or some Id. omitted). deficiency. other moral Hockett, 158, In 107 Watson v. Wash.2d Supreme Court of Minnesota wrote 669, (1986), P.2d court stated: twenty-nine jurisdictions at least other physicians judgment” follow the rule that are not lia- “error of instruction judgment. unanimously upheld for honest errors this court Mil- ble ler, Subak, proposed by Dr. Hockett in Ouellette Ouellette N.W. also (Minn.1986), case, proper: 2d 810 the court stated: is also physician surgeon “A is not liable malpractice may “Cases of be within if, judgment for an honest error exception. A entitled to arriving judgment, physi- at that practice profession, possessing his surgeon cian or reasonable requisite exercised qualifications, applying skill, care, care and within the standard judgment his skill and with due obliged he damages care to follow.” ordinarily liable con- sequent upon an honest mistake or (Italics ours.) Miller, 91 Wash.2d at 160 making an error however, Henceforth, n. 588 P.2d 734. treatment, diagnosis, prescribing italicized word “honest” should determining upon operation, an appro- used in those cases where it is. where there is reasonable doubt as give priate to this instruction. This is physical the nature of the conditions because the use word “honest” involved or as to what have should imparts argumentative aspect into the done, recog- in accordance been which, above, instruction as discussed good authority prac- nized current does not in- coincide with current * * * tice. practice. struction ^[******] « * * * Most professional men are See also (Iowa 1987); Perkins v. Miller Walker, v. Kennedy, 406 N.W.2d employed they (1978)(“honest” retained or in order that 588 P.2d 734 Wash.2d against tendency to “direct a verdict upheld). In judgment instruction error of Am.Jur.2d, Surgeons, appellants’ objection It is noted in Physicians & them.” (1981), they complain about the use of the term “honest error” do § discussing judgment. judgment” and “honest- professional used in the terms “honest concern these terms ly.” This latent about may assign giving as error the party “No developed appeal. apparently unless give to an instruction or the failure retires to objects he thereto before designed 51 is to assist the trial W.R.C.P. verdict, stating distinctly thе consider its in in- potential correct errors court to objects he and the matter to which purpose of the rule is de- structions. objection.” W.R.C.P. grounds his alleged if errors are asserted for the feated added). (emphasis At the instruction con- appeal. Perhaps appellant first time on ference, objected appellants for counsel objected, the court properly had would 18, stating: giving Instruction Number “honest” and “hon- have deleted the terms instance, Honor, your I think the first acceptable terms. estly” or substituted Roussalis, where it de- v. Vossos Appellants’ objection to Instruction Num- is, mean, negligence what fines what minimally comply Rule ber 18 does not with —I is, impliedly overrules standard of care they should not now be heard to any additionally that would instruct case complain. judgments on the issue of error of on the opinion, majority In its addresses oth- majori- Probably first instance. the vast by appellants, and is crit- er issues raised ty any case in the exercise of medicine rulings many ical of the trial court’s requires judgment. question —and However, majority’s determinations. evidence comes into the trial. It’s reversal is not based on those additional if, up Jury to determine from the discretionary Those issues are mat- issues. case, facts of the that’s excused no ters with the trial court. I see abuse ‍​​​​​‌​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​​‌‌‌​‌​‌‌‌​​‌‌‌​‌‌‌‌​‌‌‍knowledge, diligence in skill and the evi- discretion and would therefore affirm judgment, par- dence. To instruct about court in its determinations. ticularly, Jury the аttention to the calls granting respect With a directed ver- many they’ve of one of issues that heard Everts, M.D., the dict in favor of Charles the evidence and certain circum- radiologist, I concur the result de- stances, could—could be tantamount majority. agree I termined issuing judg- a directed verdict in our competent there trial court that ment. direct, proximate cause any evidence Two, anything I think in Conway don’t and actions of Dr. between the conduct suggests language Wright that the appellants contend injuries and the Everts given in- the decision should be as an court, however, im- The trial occurred. that, clearly, And I struction. think granted the verdict with- properly directed up professional situation sets where allowing appellants out to call Everts exercised, judgment being any in almost in their case chief. as an adverse witness case, requires the Plaintiffs to almost as an adverse Had Dr. Everts testified know, prove, you beyond a reasonable witness, highly unlikely that he it is would prove doubt or some kind of burden far case, appellants appellants’ have made requires. greater than the law The in- right try to cure the deficiencies had a struction, my judgment, simply, you — ap- proofs through their know, unnecessary give and it it’s pellee Everts. against direct a does tend to verdict be- cause, know, say I all have to grant- I reverse the trial court would issue, judgmental while this was a that’s ing summary judgment to Dr. Everts and Jury to decide. respects. other affirm all precisely is most difficult to determine It appellants complaining are At

what about. conference, they

the instruction talk about imposing on them a burden

the instruction proof “beyond a reasonable doubt” and

Case Details

Case Name: Kobos by and Through Kobos v. Everts

Court Name: Wyoming Supreme Court

Date Published: Jan 17, 1989

Citation: 768 P.2d 534

Docket Number: 86-12

Court Abbreviation: Wyo.