Lisa Menschik (Menschik) appeals from a judgment for the Respondents on her claims of medical malpractice. Menschik argues that the trial court erred in denying admission of certain exhibits and limiting questioning of a defense expert, in making comments from the bench when ruling on objections, and in prohibiting testimony from her expert relating to the standard for performing a “stat” MRI. Finding no error, we affirm.
Factual and Procedural Background
On March 22, 2010, Menschik presented at Heartland Clinic Comprehensive Family Care in St. Joseph complaining of severe pain radiating into her thoracic spine, chest, arms, and legs, as well as dysphagia. Menschik was seen by Dr. Robert Kemp-ton, who took her history and ordered chest x-rays, laboratory testing, and CT scans of her cervical and'thoracic spine and chest. Dr. Kempton sent Menschik to the radiology department at Heartland Regional Medical Center (HRMC) to undergo the CT scans. She was admitted to HRMC the same day for further treatment by Dr. Kempton. after initial testing revealed - a markedly elevated white blood count. ■''
At HRMC, Menschik underwent radiological studies performed by Dr. Jose Alvarez. Dr. Alvarez interpreted Menschik’s cervical CT scan as revealing prevertebral soft tissue swelling indicating possible abscess'formation; however, metal implants in Menschik’s neck from a previous procedure created, artifacts that prevented him from accurately seeing on the CT scan an area of swollen tissue where a spinal epidural abscess was forming. Dr. Alvarez also interpreted Menschik’s neck CT scan as showing a collection of fluid starting slightly above her Adam’s apple and continuing down into her chest area, which he concluded to be a retrotracheal and retro-pharyngeal abscess, though he was unable to determine if the infection “tracked” from the neck to the chest or vice versa.
After learning- of Dr. Alvarez’s interpretations, Dr. Kempton requested consultations from other ■ doctors including Dr. Robert Zink (a cardiothoracic surgeon), Dr. David Kropf (an otorhinolaryngologist, or ENT), and Dr. Brent Peterson (a neurosurgeon). Dr. Kropf and Dr. Zink examined Menschik that night and recommended surgery to drain the retrotracheal and retropharyngeal abscesses, while Dr. Peterson waited until the following morning to see her. Menschik underwent surgery to drain the abscesses-followed by a second surgery to drain an anterior chest wall abscess and then finally a tracheosto-my all performed by Dr. Zink and Dr. Kropf in the early hours of March 23. Menschik’s condition deteriorated follow
Dr. Peterson was notified of Menschik’s deteriorating condition at approximately 6:45 a.m., prompting him to order an MRI. He received those results at 10:51 a.m. The MRI indicated a large disc herniation at C6-C7 with edema or epidural extension of an abscess that was compressing her spinal cord. He recommended surgery to clear the infection that was compressing Menschik’s spinal cord, removal of the anterior cervical plates at the C4-C5 and C5-C6 levels, and an anterior cervical discec-tomy and fusion at the C6-C7 level. Surgery began at 3:56 p.m. and was completed without incident. Menschik was required to undergo physical therapy but eventually regained the ability to walk, though some complications remained.
Menschik filed suit against Dr. Alvarez, Dr. Kropf, and Dr. Peterson claiming that they had individually and cumulatively been responsible for the delay in the diagnosis and eventual surgery to drain her epidural abscess and that, as a result, she suffers present-day deficiencies. Specifically, she claimed that Dr. Alvarez had been negligent in failing to inform Dr. Kempton regarding the possibility that the retro-pharyngeal abscess was tracking into her spinal epidural space or that an MRI should be considered to exclude the possibility of a spinal epidural abscess; that Dr. Kropf was negligent in failing to obtain a complete medical history or perform an adequate neurological exam during the evening of March 22; and that Dr. Peterson was negligent for failing to conduct a neurological exam in the early morning of March 23, failing to order a “stat” MRI as opposed to a routine MRI on the morning of March 23, and delaying surgery until later in the day to allow for his “A team” to assemble.
Testimony of Dr. Paul Young
Menschik’s first point raised on appeal concerns her effort to impeach the testimony of defense expert Dr. Paul Young, a neurosurgeon from St. Louis, who testified to the standard of care owed Menschik and whether that standard had been breached by the Respondents. At trial, Menschik sought to show that Dr. Young harbored a bias against medical malpractice plaintiffs resulting from being a defendant in multiple such lawsuits during his career. She also attacked Dr. Young’s character for truth and veracity based on Menschik’s belief that he had understated the total number of medical malpractice lawsuits that had been brought against him. To that end, there was extensive cross-examination into Dr. Young’s history of medical malpractice suits from his former practice in California, his failed attempt.to obtain a license to practice medicine in Colorado, and the details surrounding the expiration of his California medical license.
In her first point on appeal, Menschik claims two distinct errors relating to Dr. Young’s testimony: (A) the trial court erred in denying admission of Plaintiffs Exhibits 145 and 146, and (B) the trial court erred in denying Menschik the opportunity, on recross-examination, to question Dr. Young regarding the details of the medical malpractice allegations included in Plaintiffs Exhibits 145 and 146.
A. Plaintiffs Exhibits 145 and 146.
We begin our analysis with the trial-court’s ruling denying admission of Plaintiffs Exhibits 145 and 146. Menschik argues that the trial court erred because these exhibits were admissible to establish Dr. Young’s bias, impeach his character for truth or veracity as prior inconsistent statements, and as contradiction evidence. We will consider each of these arguments individually.
i. Bias
It is well settled under Missouri law that a witness may be impeached on cross-examination through the use of evidence demonstrating the witness’s bias, interest, or prejudice. Mitchell v. Kardesch,
At trial, Dr. Young initially asserted that he had only been sued five times for medical malpractice. However, Menschik was permitted, over Respondents objection, to question Dr. Young regarding an interrogatory response filed in a malpractice case brought in California in which he stated that he had previously been sued nine times. Dr. Young did not deny this disparity but sought to explain it -by stating that many of those suits had been brought because an ex-partner he had worked with in California, named Dr. George Stevenson (“Stevenson”), had set out to destroy him by contacting former patients and encouraging them to file lawsuits. Dr. Young stated that those actions had failed to proceed anywhere and maintained that he was aware of only five lawsuits that he felt fit the description of a malpractice action that, in his view, personally involved him.
Menschik also questioned Dr. Young regarding statements made in his application to practice medicine in Colorado. This application was completed after the interrogatory in the California ease had been filed and' included additional' lawsuits bringing the number of medical malpractice cases against him to fourteen. The application further acknowledged that his malpractice insurance had been canceled due to the' number of malpractice lawsuits filed against him. Menschik continued questioning Dr. Young regarding the various medical malpractice cases that' had been brought against him over the years with the number eventually rising to a total of twenty-three. At no point did Dr, Young deny being involved in any of these lawsuits, stating instead that he was “sure his name had appeared on many things filed against the various - hospitals he had worked for that never reached his level of attention” but that “five was the number that- he felt actual responsibility for.” '
. On appeal, Menschik argues that Plaintiffs Exhibits 145 and 146, which disclosed the details surrounding three of the lawsuits discussed on cross-examination, should have been admitted as additional evidence of, Dr. Young’s bias. This argument is without merit given that Men-schik’s, theory of Dr. Young’s bias was not based on the specifics of a particular prior lawsuit or on a connection or similarity between Menschik’s case and any of the prior lawsuits but instead was premised on an alleged prejudice against plaintiffs in medical malpractice cases in general derived from the volume of lawsuits brought against him over the years.
ii. Prior Inconsistent Statements
We next consider Menschik’s argument that Plaintiffs Exhibits 145 and 146 were admissible as prior inconsistent statements. We begin by noting that this is not an argument that Menschik raised to the trial court when seeking to admit these exhibits. This presents a considerable dilemma as “[a] point is preserved for appeal only if it is' based on the same theory presented at trial.” Central Trust Bank v. Graves,
It is a basic legal principle that a witness’s credibility may be impeached based on the use of prior inconsistent statements. Mitchell v. Kardesch,
As an initial matter, we find that only one of the two exhibits in question can reasonably be construed as a prior statement of Dr. Young. Plaintiffs Exhibit 145, a pleading filed by the California Board of Medical Quality Assurance, is clearly not a statement of Dr. Young and therefore no further analysis is necessary, as it is axiomatic that a witness cannot be impeached on the basis of a prior inconsistent statement where the witness did not make the prior statement.
Plaintiffs Exhibit 146 must suffer a similar fate for a different reason. Men-schik argues that Dr. Young’s testimony that his California medical license “expired” was inconsistent with a statement contained in Plaintiffs Exhibit 146 that says his California license was “in a canceled status due to non-payment of fees.” However, a review of the transcript shows that Dr. Young was never confronted with any statement made in Plaintiffs Exhibit 146 regarding the status of his medical license; asked about the circumstances under which it was made; or given the opportunity to admit, deny, or explain it. Because Menschik failed to lay the necessary foundation for the use and admission of Plaintiffs Exhibit 146 as a prior inconsistent statement, this theory of impeachment provides no basis to argue its admissibility. See Preferred Risk Group,
Hi Contradiction
Menschik’s final argument for the admissibility of Plaintiffs Exhibits 145 and 146 is that they were admissible to contradict Dr. Young’s testimony that the multiple lawsuits relating to his California practice were instigated on the urging of his ex-partner, Dr. Stevenson. As with her previous argument for admission of the exhibits as inconsistent statements, Men-schik did not raise contradiction as a grounds for admission to the trial court, and thus this point is not preserved for appeal. Central Trust Bank v. Graves,
Unlike impeachment, which concerns an attack on the credibility of a witness and usually does not furnish new evidence, contradiction is directed toward attacking the accuracy of a witness’s testimony by supplying additional contradictory factual evidence. Mitchell v. Kardesch,
Menschik argues that Plaintiffs Exhibits 145 and 146 did not concern collateral matters because they were being introduced for the purpose of attacking Dr. Young’s credibility. This argument illustrates a fundamental misunderstanding regarding contradiction evidence. The purpose of contradiction evidence is to refute facts testified to by a witness, not to challenge his or her credibility.
Having -considered the arguments relating to Plaintiffs Exhibits 145 and 146, we conclude that the trial court did not abuse its discretion in denying their admission.
B. Recross-examination of Dr. Young
We now turn to the second half of Men-schik’s first point on appeal, her argument that the trial court erred in denying the opportunity, on repross-examination, to question Dr. Young on the details of the three specific claims of malpractice discussed in Plaintiffs Exhibits 145 and 146. A review of the record compels our rejection of this argument, as Menschik failed to make an offer of proof regarding what testimony she sought to elicit and thus failed -to preserve this point for appeal.
Following extensive cross-examination, Dr. Young was questioned on re-direct examination regarding the events- that transpired in California involving'his ex-partner Dr. Stevenson. On recross-examination, Menschik posed a question to Dr. Young seeking to determine if he had made the same claims involving his ex-partner to the Colorado Medical Board when he was applying for a Colorado medical license. When Dr. Young submitted that he had, he was asked whether the Colorado Medical Board had.investigated these claims. Respondents objected arguing that the question called for speculation and was irrelevant. The trial court sustained the objection, and Menschik made no further attempts to question Dr. Young with respect to Dr; Stevenson or make an offer of proof. On appeal, Menschik claims that she would have questioned Dr. Young about the claims of malpractice listed in Plaintiffs 'Exhibits 145 and 146 to refute his assertion that thése suits were brought because of the machinations of Dr. Stevenson by showing that they were in fact meritorious.
“[I]n order to preserve an argument that evidence was improperly excluded at trial for appeal, the proponent of that evidence is required to make an offer of proof.” Mansfield v. Horner,
In the present case, there is no question that Menschik failed to make an offer of proof in response to the objections raised during her recross-examination of Dr. Young. As such, her claim of error is
Menschik’s first point is denied.
Comments by the Bench
Menschik’s second point on appeal contends that the trial court abused its discretion by making “comments” from the bench when ruling on certain objections during the testimony of Dr. Peterson. At three separate times during the lengthy cross-examination of Dr. Peterson, Men-schik moved to strike the witness’s answer for being non-responsive. The trial court overruled the motion in each instance, stating that it found the witness was being responsive. The three occurrences were as follows:
PLAINTIFF COUNSEL: And move to strike that portion of his answer that wasn’t responsive to my question.
THE COURT: Overruled. I thought it was responsive to the question, so denied
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PLAINTIFF COUNSEL: Move to strike his answer as nonresponsive.
THE COURT: Motion is denied. I think he is responding to the question you asked.
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PLAINTIFF COUNSEL: Objection, Your Honor.
THE COURT: Excuse me. He’s answering the question, [Plaintiff Counsel],
PLAINTIFF COUNSEL: He’s not answering that question,
Menschik argues that by making these comments, the trial court conveyed to the jury its opinion regarding the credibility of the witness.'
Because Menschik failed to raise a timely objection to the trial court’s statements during the trial, these alleged errors, are not preserved for review.
A trial court has a duty to avoid conduct that may be construed as favoring either party and must maintain a neutral attitude throughout the trial. Snel
Menschik’s argument that her case was prejudiced by the trial court’s comments is without merit. The trial court’s responses did not communicate an opinion as to the credibility of the witness, i.e. whether he was truthful or not, but merely stated that the witness’s answers were responsive to the questions presented. The trial court’s comments stated explicitly what would otherwise have been implicit if it had simply overruled Men-schik’s motion to strike. Because the trial court’s statements did not express an opinion as to the credibility of the witness and instead laid out the trial court’s rationale in a neutral manner, there exists no basis to conclude that those comments served to prejudice the minds of the. jury and deprive Menschik of a fair trial. See Schonlau v. Terminal R. Ass’n of St. Louis,
Menschik’s second point is denied.
Testimony of Dr. Patten
Menschik’s third point on appeal alleges that the trial court erred in prohibiting the testimony of her expert, Dr. Randall Patten, relating to the performance of a “stat” MRI. Dr. Patten was called to provide testimony regarding the various radiological tests performed on Menschik, his interpretation of the results of those tests, and the standard of care owed Menschik and whether the Respondents had met that standard. During his testimony, Dr. Patten was asked about the standard for timely performing a “stat” MRI. The Respondents objected, arguing a lack of foundation and relevancy. The trial court sustained the objection and permitted Menschik to make an offer of proof. In the offer of proof, Dr. Patten testified, in part, as follows:
Q. With regard to a stat MRI, are you aware of—I guess you would call it the national standard with regard to how quickly that gets done?
A. Well, essentially when you have a stat MR[I] you try to do it immediately if at all possible, so you try to do it as quickly as humanly possible.
Q. Okay. And is a four-hour delay between the time that it’s ordered or a three-hour delay between the time that it’s ordered, to the time that it’s given, is that within that standard?
A. That seems to be a fairly long period of time. It depends upon the circumstances I assume. But it would generally be expected to be completed before that, before a three-hour or four-hour window.
We review the decision of the trial court to admit or exclude expert testimony for an abuse of discretion. Spalding v. Stewart Title Guaranty Company,
The trial court sustained the objection, noting that Dr. Patten had not worked in a hospital setting for ten years and there was no indication that “he even knows the practices of what’s available today ...” relating to the standards of performing a “stat” MRI. Nothing in the offer of proof addressed the foundational deficiencies facing Dr. Patten’s testimony raised by the trial court, nor can this Court glean from the remainder of Dr. Patten’s trial testimony the necessary foundational predicate to rebut the trial court’s observation. As a result, we cannot conclude, based on the record before us, that the trial court abused its discretion in denying the admission of this testimony. Urness v. Urness,
Moreover, a close examination of the offer of proof reveals that Dr. Patten’s proffered testimony would not have established a “standard” for timely performing a “stat” MRI, as he stated the length of time necessary to perform a “stat” MRI “depends upon the circumstances” of each case and was thus situationally dependent. Because the standard that Dr. Patten put forth in the offer of proof for a timely performance of a “stat” MRI was, in part, dependent on a patient’s condition, the excluded testimony suffers from additional relevance-based problems because the offer of proof did not connect the “standard” for performing a “stat” MRI to a patient in Menschik’s specific situation. Instead, Dr. Patten was simply asked if a three-hour to four-hour delay fell within the “standard” for performing a “stat” MRI to which he responded that it would “generally be expected to be completed before that.” This generalized testimony lacked probative value for a trier of fact tasked with assessing whether the specific treatment provided to Mensehik failed to meet the standard of care owed to her.
Menschik’s third point is denied.
The judgment of the trial court is affirmed.
All concur.
Notes
. Menschik also alleged, but did not submit to the jury, claims that HRMC breached the duty of care owed to her by not having a “stat” MRI ordered; not obtaining or providing prompt and timely surgical intervention for her emergent condition or treating her compressed spinal cord in light of her deteriorating condition; and/or not having the proper rules, regulations, policies, or protocols, or not enforcing those that existed in order to ensure that patients in her situation receive prompt surgical intervention for an emergent condition.
. Dr. Young’s cross-examination accounts for nearly sixty pages of the transcript submitted on appeal.
. "Multiple claims of error in one point relied on render the point ‘multifarious’ and violate Rule 84.04.” Fastnacht v. Ge,
. Menschik explicitly asked Dr, Young at one point on cross examination whether "getting ■sued for malpractice 17 different times cause[d] [him] to be biased against plaintiffs like Lisa Menschik?” and then later asked him again'if “getting sued 23—in 23 different malpractice suits cause[d] [him] to be biased against the plaintiff?"
. Although Plaintiffs Exhibits 145 and 146 were not admitted at trial, they were extensively used and referenced during Dr. Young’s cross-examination.
. In addition, it is questionable whether Plaintiffs Exhibit 146, the decision of the California Board of Medical Quality Assurance and incorporated Stipulation between the Board and Dr. Young, qualifies as a prior statement of Dr. Young. We need not make a determination on this issue; however, as it is clear from the record that Menschik failed to lay the necessary foundation for the admission of this exhibit as a prior inconsistent statement.
. Contradiction evidence has the effect of impeaching a witness’s credibility. Waters v. Barbe,
. Menschik argues in her initial Brief that this point is subject to an abuse of discretion review. However, she concedes in her Reply Brief that she failed to preserve this issue for appeal and that plain error is the proper standard for review.
. A "stat” MRI was never ordered for Men-schik. Nevertheless, whether the failure to order a "stat” MRI or whether any delay in performing the MRI on Mensehik fell below the standard of care owed to her was clearly relevant to this case. However, based on the offer of proof, Dr, Patten’s testimony regarding the timely performance of a "stat” MRI would have merely provided that the "standard” for timely performing a "stat” MRI "depended on the circumstances” of the specific patient. There is nothing contained in the offer of proof to indicate that Dr. Patten’s testimony would have applied this "standard” to Menschik’s "circumstances” which, assuming that the previously discussed foundational deficiencies had been addressed, would have been relevant evidence in this case.