A woman sought treatment at an emergency room. She complained of a severe cough, upper respiratory infection, and difficulty breathing. An emergency room doctor evaluated her and diagnosed her as suffering from bilateral pneumonia. While in the emergency room, she was administered intravenous antibiotics and saline, inhalation treatments, cough medication, and Tylenol. After she spent approximately three and one-half hours in the emergency room, the doctor noted her condition had improved and discharged her with care instructions and with prescriptions for an antibiotic, a cough syrup with codeine, and an inhaler.
The following afternoon she stopped breathing. CPR was performed and an ambulance was called, but the woman died at the hospital that afternoon. The medical examiner found that she died of “panlobar organizing and acute pneumonia.”
The personal representative of the woman’s estate filed a wrongful death action against the emergency room doctor and his practice group. The complaint alleged their care of the woman fell below the standard of care because they failed to diagnose the seriousness of her condition and failed to admit her to the hospital for observation and treatment.
At the first trial, during cross-examination of the woman's son, defense counsel asked a question that described the woman as a drug addict. The Natrona County District Court found the question improper on grounds that the question assumed facts not in evidence, called for speculation, was based on hearsay, was not relevant, and was unfairly prejudicial to the personal representative. The personal representative moved for and was granted a mistrial. The trial court entered an Order Allowing Fees and Costs, which awarded the personal representative approximately $60,000 for costs and fees incurred in connection with the first trial.
During a second trial, the personal representative’s emergency medicine expert testified that the emergency room doctor should have diagnosed the woman as suffering from sepsis, a toxic response to an infection, and should have recommended hospitalization to treat the sepsis. The expert defined sepsis as an infection plus systemic inflammatory response syndrome (SIRS). SIRS occurs when a patient has two or more of the following symptoms: 1) a temperature greater or equal to 38 degrees Celsius (100.4 degrees Fahrenheit); 2) a pulse rate over 90 beats per minute; 3) a respiratory rate over 20 breaths per minute; and 4) a white blood cell count greater than 12,000. The expert concluded that when the woman first presented to the emergency room she had pneumonia and met two of the four SIRS criteria: her white blood cell count was elevated above 12,000 and her pulse rate was greater than 90. He further concluded that when she was discharged from the emergency room, a few hours later, her condition had worsened and she met all four of the SIRS criteria. On this basis, the expert opined that the woman had sepsis and that the standard of care required that she be admitted to the hospital for monitoring and treatment.
The emergency room doctor and his expert witness testified that the SIRS plus infection definition of sepsis is an overly cautious and overly sensitive guideline for determining when a patient must be hospitalized. Both offered alternative guidelines for determining when a patient must be hospitalized. The doctor’s expert witness testified that based on application of either of the alternative guidelines, the woman had a low mortality risk and it was acceptable to discharge her home.
After the trial, the jury returned a verdict in favor of the doctor and his practice group. The trial court denied the personal representative's motion for a new trial. The personal representative appealed that denial. The doctor and his practice group cross-appealed, challenging the mistrial order and the order allowing costs and fees in the first trial.
The Supreme Court of Wyoming affirmed. The court held that (1) the mistrial order and the order allowing costs and fees were not appealable; (2) the trial court’s assessment that a question regarding the patient's drug abuse warranted a mistrial was not unreasonable, arbitrary, or capricious; (3) the personal representative waived any claim of prejudice related to testimony from the doctor's medical expert concerning the definition of sepsis; (4) the trial court did not abuse its discretion by admitting testimony from the doctor’s medical expert regarding pneumonia severity indexes; (5) the doctor's testimony was not undesignated expert testimony that unfairly surprised the personal representative; and (6) the doctor's testimony did not mislead and confuse the jury.
The mistrial order and the order allowing costs and fees were not appealable. An appealable order must affect a substantial right, determine the merits of the controversy, and resolve all outstanding issues. The orders in the first trial were not appealable because they did not determine the action or prevent a judgment. While the question of a mistrial may have been settled once the court issued the order awarding costs and fees, that issue was only one discrete part of the controversy. The parties' controversy would not have been fully determined on the merits until after the second trial. The court concluded that the doctor and his practice group’s appeal of the mistrial order was timely.
The trial court’s assessment that the defense counsel's question describing the woman as a drug addict was so prejudicial that it warranted a mistrial was not unreasonable, arbitrary, or capricious. The question of her alleged drug abuse and whether evidence would be permitted regarding those and related allegations were the subject of multiple arguments and discussions between counsel and the trial court. The record clearly illustrated that the trial court was sensitive to the potential prejudice of this evidence and intended to allow its use for only limited purposes when appropriate. The trial court found the question extremely prejudicial because of its use of the term “drug addict” and the negative connotations associated with that term and because the question could not be answered in a meaningful way by the witness.
The personal representative waived any claim of prejudice related to testimony from the doctor and his medical expert concerning the definition of sepsis. The trial court offered the personal representative the option of taking a continuance at the conclusion of the defense counsel's direct examination of the expert upon determining that the personal representative was not properly advised of that expert's testimony, but the personal representative turned down the trial court's offer.
The trial court did not abuse its discretion by admitting testimony from the doctor and his medical expert regarding pneumonia severity indexes. The expert discussed the indexes in his deposition. The expert's testimony concerning indexes was consistent with his expert designation.
The doctor's and his medical expert’s testimony was not undesignated expert testimony that unfairly surprised the personal representative. Where the claim is one of unfair surprise, the appropriate response from a surprised party who wishes to counter testimony is a request for a continuance, and the failure to request one precludes a claim of prejudice. The personal representative turned down the trial court's offer of a continuance.
The doctor's and his medical expert’s testimony did not mislead and confuse the jury. The doctor was identified as a witness. The personal representative opened the door to the doctor's opinion by calling him as a witness and exploring all manner of opinion testimony. To the extent that the personal representative felt blind-sided by the doctor's testimony, the court adequately addressed the issue at trial.
The Supreme Court of Wyoming affirmed the trial court’s denial of the personal representative's motion for a new trial and mistrial order and allowance of costs and fees in the first trial.
See: Miller v. Beyer, 2014 WL 2945734, 2014 WY 84 (Wyo., July 1, 2014) (not designated for publication).
See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care