Opinion of the Court by
Judith Burton, a resident of Clay, Kentucky, brought suit against Dr. Philip Tro-ver and the Trover Clinic Foundation (TCF) in the Hopkins Circuit Court alleging that Dr. Trover, a radiologist, misread computed tomography scans (CT scans or CTs) of her lungs and thereby delayed the diagnosis of her lung cancer. She further alleged that TCF, Dr. Trover’s employer,
RELEVANT FACTS
Burton’s suit was one of some forty-nine brought against Dr. Trover in the wake of allegations by Dr. Neil Kluger, an oncologist at the Regional Medical Center’s Mahr Cancer Center, that Dr. Trover had poor practice habits and was not a reliable reader of mammograms and other diagnostic radiographic images. Dr. Kluger’s allegations, which commenced in early 2004, were addressed to the Medical Center’s Medical Executive Committee, to TCF’s Board of Governors, and to the Kentucky Board of Medical Licensure. The allegations were soon made public and received considerable attention from news media in the region — hence the trial court’s рainstaking efforts to seat the jury.
The Medical Executive Committee investigated Dr. Kluger’s allegations by questioning physicians who made frequent use of the Medical Center’s radiology services, by questioning other employees in the radiology department, and by submitting selected imaging studies performed by Dr. Trover about which questions had been raised-both mammographic and non-mammographic studies — to an outside reader for review. In the Committee’s view, all of these lines of inquiry raised concerns that, although “well trained and capable,” Dr. Trover lacked “consistent diligence.” The Committee was also concerned by the fact that Dr. Trover typically interpreted more than 30,000 radiological examinations per year, whereas, according to one surveying group at lеast, the average workload for a full time radiologist is 12,800 per year. In April 2004, the Executive Committee recommended to the Board of Governors that Dr. Trover’s clinical privileges be revoked and his membership on the Medical Staff terminated, subject to reinstatement upon certain conditions.
The Kentucky Board of Medical Licen-sure, after receiving a grievance from Dr. Kluger, investigated the matter by contacting the Regional Medical Center to obtain additional information and by retaining consultants. This culminated in a Complaint against Dr. Trover and an Emergency Order of Suspension on July 14, 2005. By that point, Dr. Trover had not practiced in Kentucky for almost a year, having resigned from the Regional Medical Center in August, 2004 and resumed practice in Michigan. He contested the Board’s findings, maintaining that Dr. Kluger’s allegations were not true and were part of “a malicious effort to harm him” personally and professionally. He presented his own consultants, three Board-certified radiologists, who contradicted the Board’s consultants’ findings and concluded that Dr. Trover was competent and well-qualified. The matter was eventually resolved through an informal resolution process that produced an April 13, 2006 Agreed Order. That order was later replaced with a substantially similar Amended Agreеd Order of May 9, 2007. The latter Order updated the status of the
The May 2007 Amended Agreed Order is the licensure action that was in issue at trial. It addressed four major areas of inquiry: Dr. Trover’s reading of CT scans; his reading of mammograms; the volume of readings performed by Dr. Trover annually; and the intracranial interventional procedures he performed as a physician Board certified in radiology and interven-tional radiology. Only the reading of CT scans and the volume of readings are arguably relevant to this matter. The relevant portions of the Amended Agreed Order state as follows:
5. A Board Consultant, Board Certified in Radiology with Certifícate of Added Qualifications in Neuro-radiology, was retained to reviеw diagnostic radiographic studies and interventional procedures performed by the licensee. The Consultant found the diagnosis in Patient A’s case, where the licensee missed an instance of recurrent colon cancer, to be below the expected standard of radiographic care and skills within the Commonwealth of Kentucky. The Consultant noted that in the case involving Patient B, the licensee reviewed the CT scan on more than one occasion and yet “failed to see a mass of 16 centimeters in diameter.” The Consultant added, “[although a precise identification of the type of mass is not possible, failure to appreciate a lesion of this size is far below the expected standard of radiographic care and skills within the Commоnwealth of Kentucky.” In addition to patients A and B, the Board Consultant reviewed eight (8) additional diagnostic radiology cases. The Consultant only found a significant disagreement with the licensee’s reading of the images of Patient C. The Board Consultant found that the licensee missed a large pneumoperitoneum and hilar mass in Patient C....
The Consultant also found that the 33,000 radiological images read by the licensee in one year to be outside the norm for a busy practicing radiologist. The Consultant reported that in his own practice, the radiologist (sic) average 15,000-18,000 images read per year.
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7. The licensee provided both oral and written responses to the grievances during the course of the investigation. In response to allegations pertaining to Patient A, the licensee stated that had he been aware of thе patients history of previous neoplasm, it would have assisted him in the interpretation of the exam and he would have looked primarily for metastatic disease. The licensee acknowledged the missed diagnosis but maintained that “this was an honest miss, not due to lack of training, effort or other fault except a perceptual mistake,” and “when he saw the study later, he immediately recognized the metastatic deposit.” The licensee emphasized that the patient was not harmed and her prognosis was not affected by this mistake.
In Patient B’s case, the licensee denies missing the abscess, “because it did not exist.” The licensee contends that a CT-scan three days before surgery showed no abscess, nor was (sic) there any clinical signs of harboring an abscess еxhibited by the patient. The abscess appears to have been, “the resultof surgery,” or “probably formed after surgery due to a bile leak.” The licensee asserts that this is not uncommon in this type of procedure.
The licensee is Board certified in both Radiology and interventional radiology. The licensee reported reading approximately 33,000 radiological cases during 2003 due to insufficient radiology staffing at RMC. The licensee maintains that he practiced within the American College of Radiology workload averages during his other 24 years of practice.
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8. The Board’s first consultant provided testimony in which he conceded that 3 diagnostic cases (Patients A, B and C) do not constitute a fair sampling to determine the competence level of a radiologist, especially when the cases (Pat. A and B) are not taken at random.
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9. The licensee retained as witnesses, two (2) Board Certified Radiologists who disagree with the Board’s 1st consultant regarding Patient “A,” and find that no abscess was in existence when Patient A’s CT was read by the licensee, and that the image described by the Board’s 1st Consultant is actually Patient A’s uterus and displaced bladder. Another witness for the licensee is the medical examiner who performed the autopsy on Patient A and finds that the abscess noted in the autopsy, based on his anatomical review, was not present twelve days before her death when the licensee read the CT and therefore he did not miss the mass.
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11. The licensee retained as witnesses, three (3) Board Certified radiologists, including the Chairman оf the Department of Radiology at Kosair Children’s Hospital, who all find that 3 diagnostic cases (Patients A, B and C) are an inadequate sampling to determine the licensees competence; that in reviewing the Board’s investigation as a whole, the licensee has committed no acts of gross negligence, gross malpractice, or unprofessional conduct, nor has he done anything to bring the medical profession into disrepute; that the licensee is a well-qualified, competent radiologist who demonstrates good clinical judgment and exercises appropriate patient management decisions.
12. The Trover Foundation’s Regional Medical Center, by letters of August 10, 2005 and August 22, 2005 to the Board reported that the allegations raised by Dr. Kluger were investigatеd by their hospital and found to be largely unsubstantiated. Further, the hospital re-read more than 10,000 of the licensee’s films and determined that he was well within the standard of care.
The Board thus outlined its consultant’s findings, acknowledged the countervailing expert testimony and other evidence proffered by Dr. Trover, the small scale of its own review, Dr. Trover’s compliance with a minor educational recommendation by the Center for Personalized Education for Physicians, and his denial of any wrong doing. In light of the agreement between the parties, the Board made no findings beyond the parties’ stipulation that cause existed for entry of the April 2006 (and ultimately May 2007 Amended) Agreed Order, the gist of which is that Dr. Tro-ver’s license to practice medicine in Kentucky would for an indefinite period be сonditioned on his not interpreting more
In the midst of this controversy, Burton’s complaint, after numerous amendments, focused finally on three instances when, she alleged, Dr. Trover studied CT scans of her lungs and failed to identify and report lesions, one in either lung, that ultimately, she claimed, became cancerous. Her experts testified to the effect that the lesions were identifiable as matters of concern as early as February 2003, when Dr. Trover made the first of his alleged misreadings, and that treatment at that point would have been successful. As it happened, however, Burton’s doctors did not diagnose her with lung cancer until August 2004 — several months after Dr. Trover’s alleged misreadings in September 2003 and January 2004 — when the biopsy of a mass in Burton’s right lung discovered cancer cells. That mass and a mass in her left lung, the biopsy of which was inconclusive, were treated with radiation. Following that treatment, Burton was, for a time, deemed cancer free, but in late 2006 a new lung carcinoma was discovered. She died in 2008. According to her Estate’s expert, she would not have died at that time had her cancer been earlier detected and treated.
Dr. Trover introduced expert testimony (the head of the radiology department at the Vanderbilt University Medical Center and a pulmonary oncologist from the University of Kentucky Medical Center) to the contrary. These experts testified that pri- or to August 2004, Burton’s CT scans did not indicate the presence of lung cancer; that Dr. Trover had not misread the scans of February 2003, September 2003, and January 2004; that other radiologists at the time had concurred in Dr. Trover’s readings; and that Burton, who .had smoked from a young age and who suffered from severe chronic obstructive pulmonary disease (COPD), would not have fared better had she been treated earlier. The jury, as noted, found that Dr. Trover had not breached his duty of care, a finding that obviated any further proceedings with respect to Burton’s claims against TCF.
During the trial, Dr. Trover testified on his own behalf, and prior to his taking the witness stand he moved in limine to exclude any questions concerning,, and any reference to, the fact thаt his Kentucky medical license had been temporarily suspended and later subjected to the conditions reflected in the Agreed Orders. He argued that his licensure status was a collateral matter irrelevant to his performance in this particular case. Burton
Reversing on this issue, the Court of Appeals took a slightly different tack. In its view the license status evidence was relevant and was a fair subject for cross examination because the Board proceeding had been prompted in part by allegations of a misread CT scan (although not any of Burton’s CTs) and because the Board’s Order conditioned Dr. Trover’s license, in part, on the regular review of a sampling of his CT-scan readings. The Board’s concern with allegations that Dr. Trover had misread other CT scans, the Court of Appeals believed, was both temporally proximate and directly relevant to Burton’s allegations that he had misread her CT scans, and so should not have been excluded as “collateral.”
Dr. Trover and TCF argue that the Court of Appeals’ analysis is incomplete and fails to consider thе principal reason the trial court gave for excluding the license status evidence. As they correctly note, the trial court did not base its ruling simply on a determination that the evidence was collateral. It found, rather, that the evidence, although relevant to some extent, would prove far more prejudicial than probative. The Court of Appeals’ failure to take that balancing into account, Dr. Trover and TCF maintain, renders its decision unsound and has the effect of usurping the trial court’s discretion. We agree.
ANALYSIS
Kentucky Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” The rule applies to civil as well as to criminal proceedings, Ky. Farm Bureau Mut. Ins. Co. v. Rodgers,
Although KRE 404(b) precludes the use of evidence of collateral misconduct to show a person’s propensity to engage in such conduct, the rule also provides that evidence of other wrongs or acts may be admissible “if offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” KRE 404(b)(1). Even if relevant for some other purpose, however, Rule 404(b) evidence is also subject to KRE 403, which authorizes the trial court to exclude relevant evidence “if its probative value is substantially outweighed” by the risk of some harm, such as undue prejudice or cоnfusion of the issues. Lanham v. Commonwealth,
With respect to the first requirement, relevancy, Burton originally offered two purposes other than proof of propensity for which the license-status evidence could be deemed relevant. It served, she
We agree with Burton and with the Court of Appeals that impeachment is a purpose other than propensity for which collateral act evidence might be relevant. Under KRE 608, indeed, even character evidence may be admissible in certain forms for impeachment purposes, but that rule limits the attack to evidence of a witness’s character for truthfulness or veracity, and there is no claim here that Dr. Trover’s license status is evidence of that sort. Otherwise, litigants are entitled to introduce extrinsic evidence to contradict a witness’s testimony on matters that are or have been made material to the merits of the case. Lawson, supra at § 4.05[1] p. 270 (“Needless to say, contradiction on material facts is a perfectly proper and acceptable form of impeachment.”). However, “[t]he general rule is that a witness cannot be cross-examined on a collateral matter which is irrelevant to the issue at hand.” Morrow v. Stivers,
Unfortunately, it is not always easy to say whether, for the sake of contradiction, a matter should be deemed material or collateral. Lawson, supra § 4.05[2] p. 272 (noting that application of the rules governing impeachment by contradiction is made difficult “because of the complexity involved in determining ‘collateralness’”). On the one hand are the risks of issue proliferation and distracting the jury from the main issues in the case, Lawson, supra, § 4.05[4] p. 276, but on the other hand, courts are loath to allow a witness on direct еxamination to engage in perjury, mislead the trier of fact, and then shield him or herself from impeachment by asserting the collateral fact doctrine. Prater,
What Burton claims, and what the Court of Appeals in effect held, is that Dr. Tro-ver’s testimony with respect to his qualification as an expert — he testified at some
In Morrow v. Stivers,
The Court of Appeals’ ruling is akin to that of the Supreme Court of South Dakota in Kostel v. Schwartz,
With respect to this latter point, we share the Eighth Circuit Court of Appeals’ concern that in many if not most medical negligence cases the defendant doctor’s knowledge is not genuinely at issue. Bair,
Whether a factually and temporally related license suspension might be relevant to impeach an expert’s credibility is a harder question. In a number of cases we have upheld the admissibility of evidence with a substantial tendency to impeach expert testimony. See, e.g., Kemper v. Gordon,
Even if an expert’s license suspension, or as in this case, restricted license is closely enough related to the expert’s testimony in the given case to be relevant, nevertheless, as the trial court concluded here, its admissibility still depends on the other two Bell requirements, ie., on whether there is sufficient evidence that the alleged prior acts of misconduct actually occurred and on whether the probative value of the prior-act evidence would be substantially outweighed by its prejudicial effect. The portion of our Reece opinion quoted above makes this point, implicitly at least, by noting that an important reason for excluding the license-suspension evidence in that case and in Stivers was the fact that the grounds for the suspensions in those cases were apt to be highly inflammatory.
Here, the Court of Appeals appears to have disregarded these other Bell requirements, even though the trial court based its ruling on its view that the prejudicial effect of permitting evidence concerning Dr. Trover’s license status would far outweigh the probative value of that evidence. The trial courts ruling, we are convinced, was well within its discretion. In the first place, while there is no dispute that Dr. Trover’s license was in fact restricted, it was not suspended following proceedings before the Board. As noted above, Dr. Trover never admitted the alleged wrongs giving rise to the licensure matter. On the contrary, before the Licensure Board he presented expert testimony to the effect that he had not misread the" CT scans, as was alleged. The Amended Agreed Order imposing restrictions, moreover, did not purport to find as a fact that Dr. Trover had misread CTs or made any other errors but was instead specifically described as “an informal resolution.” Indeed, on balance the Amended Agreed Order contains as many, if not more, findings that are either neutral or favorable to Dr. Trover
Given Dr. Trover’s denials and the qualified nature of the Amended Agreed Order, the trial court would have had very reasonable concerns that introduction of the li-censure evidence, and specifically the Amended Agreed Order, could and likely would lead to a complicated trial-within-the-trial as to whether the alleged collateral CT-scan misreadings ever happened. Cf. Kostel,
The trial court was also clearly cognizant that distinguishing this case from cases such as Stivers and Reece, was the fact that Dr. Trover was testifying not merely as an expert witness but primarily as the defendant, making the KRE 404(b) concerns especially significant. Burton is correct that Dr. Trover testified as to his expert qualifications, offered expert testimony interpreting Burton’s CT scans, and maintained that he had not misread them. His testimony, however, appears to have been in compliance (Burton made no objection to the contrary) with the trial court’s pretrial order limiting the testimony of treating physicians to issues relating to their personal knowledge of Burton’s diagnosis and prognosis and to their personal involvement in her care and treatment. This pretrial ruling was requested by Burton, entered by the trial court and, based on our review, not violated. Dr. Trover did not, for example, appeal to studies or to any other outside sources to support his interpretations of Burton’s scans, nor did he purport to say what was or was not within the standard of care.
Having limited the scope of the “expert” portion of Dr. Trover’s testimony, the trial court could reasonably believe that relatively little expert testimony remained to be impeached. On the other hand, the risk of substantial 404(b) prejudice against Dr. Trover, as the defеndant, from the license proceeding and underlying allegations of similar CT scan misreadings was great — precisely the sort of unfair prejudice the court had taken four days of jury selection to avoid. In Purcell v. Commonwealth,
CONCLUSION
In sum, although we do not rule out the possibility that a license suspension could provide a vаlid means of impeaching an expert witness, there was no sound basis for admitting the license-status evidence at issue in this case. Following the completion of the Board of Medical Licensure’s investigation, there was no actual license suspension, simply an informal resolution of the proceeding by an Agreed Order that restricted Dr. Trover’s license. The trial court did not abuse its discretion by excluding evidence with such limited impeachment value against Dr. Trover, given the potential for confusing the issues to be tried and the strong likelihood that it would cause unfair prejudice. We reverse, accordingly, the Opinion of the Court of Appeals, and hereby reinstate the Judgment of the Hopkins Circuit Court.
Notes
. According to the complaint, the Foundation is a Kentucky corporation that operates the Regional’ Medical Center in Madisonville and eight outpatient clinics elsewhere in Western Kentucky.
. The recommendation was made moot, apparently, by the Board’s independent termination of Dr. Trover's employment and his subsequent (August 2004) resignation from the staff without contesting the Committee’s proceedings.
. At trial, the Estate was pursuing the claim but for clarity the Plaintiff is sometimes referred to as "Burton.”
. The parties have devoted a good deal of their arguments to sparring over whether, and if so to what extent, this question and its underlying issues were preserved for review. Dr. Trover and TCF contend that under KRE 103 Burton failed to preserve her objection to a ruling excluding evidence because she failed to proffer by avowal Dr. Trover’s responses to the quеstions she wanted to ask about the license issue. As Burton notes, however, KRE 103(d) provides that rulings on motions in limine are sufficient to preserve issues addressed in the ruling, and here it is clear from the trial court’s in limine ruling and from Burton’s objection thereto that the evidence Dr. Trover wished to exclude and Burton to introduce was the fact of Dr. Trover’s license restriction and the contents of the Amended Agreed Order imposing restrictions. Burton was not obliged in order to preserve her objection to explore on avowal Dr. Trover’s "take” on that evidence.
Burton, for her part, contends that Dr. Tro-ver and TCF should not be allowed to invoke KRE 403 and its balancing test as a source of error by the Court of Appeals because they failed to invoke that rule before the Court of Appеals. In fact, however, as Burton acknowledges, not only does the trial court’s order refer to the KRE 403 balancing test, but before the Court of Appeals Dr. Trover and TFC both argued to the effect that "the probative value of collateral issues is overwhelmingly outweighed by the prejudicial nature of the fact that the doctor’s license is suspended.” Burton’s Supreme Court Brief at 14, quoting Dr. Trover’s Court of Appeals Brief at 30-31. The Court of Appeals thus clearly had before it KRE 403 and the trial court’s application of that rule’s basic concerns.
. The Court of Appeals did not address Burton’s proof-of-habit alternative and Burton does not raise it here. We may note, however, that inasmuch as the Board’s findings as to Dr. Trover’s workload were largely cumulative of evidence Burton had already introduced, and given that Dr. Trover's workload was not the primary reason for licensure issues, the trial court could reasonably conclude that evidence of the Amended Agreed Order limited to the workload findings would unfairly prejudice Dr. Trover far more than it would legitimately advance Burton’s claim.
. Dr. Trover did respond to Burton’s "habit” line of testimony by stating that no standard of care established a maximum number of radiological interpretations per year. At a bench conference during cross-examination Burton argued that Dr. Trover had thus opened the door to the license issue and to that portion of the Amended Agreed Order limiting the number of his interpretations to no more than 100 per actual day worked. The trial court rejected that argument and disallowed the proposed questions. Burton has not challenged that ruling on appeal.