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Freitas v. Alaska Radiology Associates, Inc. (11/14/2003) sp-5753
Freitas v. Alaska Radiology Associates, Inc. (11/14/2003) sp-5753
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DONNA MAE FREITAS and )
DANIEL FREITAS, husband and ) Supreme Court No. S-10487
wife, )
) Superior Court No. 3AN-99-
10664 CI
Appellants, )
) O P I N I O N
v. )
) [No. 5753 - November 14, 2003]
ALASKA RADIOLOGY )
ASSOCIATES, INC., and JANICE )
M. ANDERSON, M.D., )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Robert C. Erwin and Roberta C.
Erwin, Erwin & Erwin, LLC, Anchorage, for
Appellants. Matthew K. Peterson and Jason A.
Weiner, Clapp, Peterson & Stowers, LLC,
Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Donna and Daniel Freitas sued Alaska Radiology
Associates, Inc. and Dr. Janice M. Anderson, alleging that they
committed medical malpractice in 1996 by failing to detect
cancerous lesions depicted on Donna Freitas's mammograms. The
jury found for the defendants. The Freitases argue that it was
error to permit Dr. Denise Farleigh to testify about the practice
Alaska Radiology followed in positioning patients during
mammograms and the training its mammogram technologists received;
they reason that this was opinion evidence that should have been
disclosed before trial and that it unfairly raised new topics.
But under the circumstances presented here, we conclude that the
trial court did not abuse its discretion in admitting this
testimony. The Freitases also argue that Jury Instruction No. 18
misled the jury. Because they did not raise this objection at
trial, they did not preserve this issue, and we conclude that it
was not plain error to give this instruction. We therefore
affirm the judgment below.
II. FACTS AND PROCEEDINGS
Donna Freitas obtained a screening mammogram in
November 1996. Dr. Janice M. Anderson, a radiologist under
contract with Alaska Radiology Associates, Inc., read the
mammogram and declared it "stable." Fourteen months later
Freitas felt a lump in her breast and obtained another mammogram.
Dr. Anderson read the new mammogram and observed a relatively
large density. She ordered follow-up testing which revealed that
Freitas had a virulent form of breast cancer with lymph node
involvement and metastases. An oncologist later testified that
Freitas has "virtually no chance" for long-term disease-free
survival or for long-term survival.
Freitas and her husband Daniel sued Dr. Anderson and
Alaska Radiology, for whom Dr. Anderson is an independent
contractor. They alleged that Dr. Anderson negligently
interpreted Freitas's 1996 mammogram.
After a nine-day trial, a jury returned a verdict
finding that the defendants had not been negligent. The superior
court entered judgment for the defendants.
The Freitases argue on appeal that the superior court
abused its discretion by allowing Dr. Denise Farleigh to testify
about breast positioning during mammograms at Alaska Radiology.
They also contend that the superior court erred as a matter of
law by giving Jury Instruction No. 18. They ask us to reverse
the judgment and remand for a new trial.
III. DISCUSSION
A. Standard of Review
We review for an abuse of discretion a decision of the
superior court to admit or exclude evidence.1 "We will reverse a
trial court's evidentiary ruling only when we are left with a
definite and firm conviction that the trial court erred in its
decision."2
A challenge to a jury instruction presents a question
of law that we review de novo.3 If no timely objection to the
jury instruction was made, we will only review the instruction
for plain error.4 We will find plain error in jury instructions
only when there is an "obvious mistake creating `a high
likelihood that the jury will follow an erroneous theory
resulting in a miscarriage of justice.' "5
B. The Superior Court Did Not Err in Allowing Dr.
Farleigh To Testify About Positioning During
Mammography at Alaska Radiology or About the Training
Its Technologists Receive.
The Freitases contend that it was an abuse of
discretion to permit Dr. Farleigh to testify about how Alaska
Radiology technologists position patients during mammograms. At
the time of trial Dr. Farleigh was the supervising radiologist
for mammography at Alaska Radiology Associates, Inc. and its
former president; she was also director of mammography at
Providence Imaging Center and chair of the Department of
Radiology at Providence Alaska Medical Center.
The Freitases argued at trial that Dr. Farleigh's
proposed testimony about positioning and training was expert
opinion testimony that Dr. Farleigh had not disclosed at her
deposition, when she was asked if she had any other "opinions"
about the lawsuit and she answered that she did not. They also
argued that it interjected a "defense" that was "brand new."
They claimed that defense counsel was "getting the same testimony
in as if he said [`]what is your opinion,['] he's just not using
the opinion word." The Freitases argued that Dr. Farleigh was
not merely providing fact testimony but instead was "back-door
experting."
The superior court found that Dr. Farleigh was
testifying as a fact witness and allowed the testimony, but
precluded Dr. Farleigh from offering specific opinions about the
adequacy of what was done in this case. The court explained that
Dr. Farleigh would:
[B]e essentially saying this is what happens
in the clinic, this is what we do, this is
what the procedure[s] are. She's not
offering an opinion . . . in this case - and
she's precluded from looking at this [X]-ray,
taking a look at it and commenting on where
the position of the density is . . . and
saying boy, we did it right here. . . .
[T]hat would make her an expert in the
opinion sense . . . [S]o as far as she's a
fact witness, I'm going to allow her
testimony.
Dr. Farleigh then testified at trial about how
mammograms are performed at Alaska Radiology. She described how
the breast is positioned during a mammogram at Alaska Radiology.
She explained how Alaska Radiology's mammogram technologists are
trained. She also testified that breast positioning has a
bearing on the quality of mammogram films. She characterized
breast positioning as "critical" to obtaining quality films.
The Freitases argue on appeal that Dr. Farleigh's
testimony was expert opinion evidence that was not disclosed
before trial, and that it was consequently an abuse of discretion
to allow Dr. Farleigh to testify about breast positioning for
mammograms. They also claim that the testimony raised a "new
defense," was "far more prejudicial [than] probative," and
"created confusion in the minds of the jurors." They claim that
there was no time to prepare a response. We interpret these
arguments as raising three main grounds why it was error to admit
this testimony into evidence: (1) because Dr. Farleigh testified
at her deposition that she had no other "opinions" about the
lawsuit; (2) because the defendants otherwise failed to disclose
this "expert" testimony before trial; and (3) because this
testimony raised an undisclosed new defense.
Because the ultimate question is whether, under the
circumstances, the trial court abused its discretion, it is
necessary to discuss the facts at some length.
When the Freitases took Dr. Farleigh's deposition
before trial, their attorney asked Dr. Farleigh if she had an
opinion whether Dr. Anderson had met the standard of care. Dr.
Farleigh testified that, based on her own review of the
mammograms and Dr. Anderson's report, Dr. Anderson had met the
standard of care. The Freitases' lawyer then asked Dr. Farleigh
if she had any other opinions about the films or about the
lawsuit that she had not already discussed. Dr. Farleigh said
that she did not. At her deposition Dr. Farleigh did not discuss
breast positioning or the training mammography technologists
receive.
The issue of breast positioning during Donna Freitas's
mammograms was raised at trial by counsel for the Freitases
during her cross-examination of Dr. Anderson, one of the
defendants. Some of the questions concerned the effect of
positioning on the appearance of breast contents from year to
year. Those inquiries seem intended to seek admissions that
positioning differences could affect the ability to compare
annual mammograms. Dr. Farleigh was then called by the
defendants to testify, over the plaintiffs' objections, about
mammogram techniques and procedures. Although Dr. Farleigh had
expressed an opinion at her deposition that Dr. Anderson had
satisfied the applicable standard of care, Dr. Farleigh did not
offer opinions about that topic (or other core liability issues)
at trial.
We first consider whether Dr. Farleigh's deposition
statement that she had no more "opinions" about the films or the
lawsuit required the court to exclude her testimony about
positioning and training. This situation differs from that
presented in Zaverl v. Hanley, in which we held that it was error
to allow a surgeon to offer expert opinions at trial on subjects
that he refused to discuss during his deposition.6 It was
inherently unfair in that case to allow the treating surgeon to
testify about core liability issues that he was unwilling and
unable to discuss at his deposition. His position at trial -
that he was willing and qualified to testify about those topics -
was completely inconsistent with his deposition position, and he
did not otherwise alert the plaintiffs in advance that he
intended to address those topics at trial.7
There is no such inconsistency here. First, Dr.
Farleigh's trial testimony about positioning and training at
Alaska Radiology was primarily about factual matters and
contained little or no evidence that could be characterized as
"opinion" testimony. Certainly she had specialized knowledge
about mammography that a layperson does not possess. It was her
professional expertise that allowed her to testify knowledgeably
about positioning and training. But Dr. Farleigh's trial
testimony contained only a few passages that might be considered
"opinion" evidence in even the broadest sense. As the appellees
correctly observe, "Dr. Farleigh gave no testimony on how
positioning should have been performed for [Donna Freitas's 1996]
mammography or whether Dr. Anderson or the technicians at the
clinic used proper positioning" when taking Freitas's 1996
mammogram. Dr. Farleigh did characterize consistent positioning
as "critical" to generating the maximum amount of information
every time physicians see the patient. Assuming that such a
characterization expresses an "opinion" and that her testimony
about why things are done may have implicitly conveyed other
inferences, these were not the sorts of opinions that she had to
disclose at her deposition in response to counsel's question.
Second, the question asked at the deposition certainly
required disclosure of expert opinions concerning core liability
issues of the sort Dr. Farleigh had already discussed at her
deposition. But breast positioning and training were not core
liability issues in this case. The Freitases disclaimed any
interest in impugning the positioning practices of Alaska
Radiology. The Freitases did not claim the defendants mis-
positioned Donna Freitas or other patients during mammography.
As a result of the Freitases' cross-examination of Dr. Anderson,
positioning (and therefore training) became sufficiently relevant
mid-trial to justify Dr. Farleigh's testimony. Notwithstanding
that relevance, it cannot be said that positioning and training
were so important that Dr. Farleigh's deposition answer obligated
the trial court to preclude her from addressing these ancillary
topics. Under the circumstances, the trial court was not obliged
to exclude this evidence as fundamentally inconsistent with Dr.
Farleigh's deposition answer.
We next consider whether the court abused its
discretion by failing to exclude the evidence on the ground it
was expert testimony defendants otherwise failed to disclose
before trial. These circumstances convince us that there was no
abuse of discretion: defendants' expert witness list stated that
Dr. Farleigh would "testify with regard to the procedures
utilized by Alaska Radiology Associates, Inc. with respect to the
techniques for taking films and reading those"; even after the
topic of positioning and training became relevant during trial,
it was of ancillary importance; Dr. Farleigh's trial testimony
contained no overt opinions on critical issues; the plaintiffs
were free to object that specific questions called for
impermissible opinion evidence; and the Freitases have not
identified any particular testimony that overstepped the bounds
the trial court - correctly, we think - imposed. Indeed, they
have not even cogently explained how this evidence prejudiced
them.
We also consider whether, as appellants assert, this
testimony unfairly raised an undisclosed "new defense." It did
not. It was not a defense. It was relevant to a topic raised at
trial by the Freitases. There was no discovery violation. There
was no need (or opportunity, given the topic's mid-trial
relevance) to supplement pre-trial disclosures. Nor, to the
extent appellants may imply that the prejudicial value of the
evidence outweighed its relevance, have they demonstrated that
they suffered undue prejudice. They do not even mention Alaska
Rule of Evidence 403, the logical rule to discuss if a party
wishes to make a plausible claim that the prejudicial value of
evidence outweighs its probative value.8 Plaintiffs did not ask
for an opportunity to conduct a short mid-trial deposition of Dr.
Farleigh to discover what she would say about positioning or
training. And the trial court permitted the plaintiffs to offer
rebuttal evidence on the positioning topic with their own
experts. They then recalled Dr. Marianne Drucker as a rebuttal
expert to discuss the effect of positioning. Further, given the
plaintiffs' litigation position that there was nothing wrong with
the positioning, there is no reason the trial court should have
thought that admitting the testimony would be unduly prejudicial.
Indeed, plaintiffs' lawyer asserted in closing argument that
positioning was "another non-issue. We're not criticizing the
positioning at all, the positioning was fine on the films." Nor
does it appear positioning was critical to the defense. Defense
counsel's discussion of positioning comprised only a small part
of his argument to the jury.
This case does not require us to distinguish between a
lay witness and an expert witness, or decide whether Dr. Farleigh
was a hybrid witness eligible to express opinions about core
liability issues.9 The question here is whether under the
circumstances the trial court abused its discretion by failing to
exclude this evidence. We hold that it did not.
C. It Was Not Plain Error To Give Jury Instruction No. 18.
The superior court gave the jury Instruction No. 18,
which set out a potential basis for finding medical malpractice.10
You must resolve any conflict in the testimony of witnesses by
weighing each of the opinions expressed against the others,
taking into consideration the reasons given for the opinion, the
facts relied upon by the witness, and the relative credibility,
special knowledge, skill, experience, training and education of
the witness. The Freitases argue that the instruction was
incomplete because it failed to identify one possible basis for
finding negligence under AS 09.55.540, which specifies what is
needed to prove medical malpractice, and therefore did not
conform to the statute.11 They claim that Instruction No. 18
required the jury to find for the defendants unless it found both
that Dr. Anderson did not possess the training and experience of
a physician practicing in her field, and also that she did not
exercise that training and experience. They therefore claim that
Instruction No. 18 was "incomplete," because it did not inform
the jurors that they could find Dr. Anderson negligent "if she
had the necessary knowledge and skill but simply acted in the
wrong way."
The Freitases did not raise this objection in the
superior court. They advanced other objections to Instruction
No. 18 before trial, and the superior court made changes to the
instruction in response to those objections. The court gave the
parties a final opportunity to object to the instructions, and
the Freitases did not make the objection that they now raise.12
The Freitases consequently did not preserve this objection.13
Plain error is therefore the applicable standard for
reviewing this instruction.14
We perceive no plain error here. Instruction No. 18
could have been clearer, but it was not misleading. Moreover,
Instructions No. 16 and 17, which also discussed negligence, were
very clear. Instruction No. 16 submitted the statutory standard
set out in AS 09.55.540(a).15 Instruction No. 17 made it clear to
the jury that it could find Dr. Anderson negligent if she failed
to exercise expertise that she possessed.16 And in this case
there was no dispute about whether Dr. Anderson had the training
and experience to practice her specialty. Therefore the
instructions as a whole properly instructed the jury. It was
consequently not plain error to submit Instruction No. 18 to the
jury.
IV. CONCLUSION
Concluding that the trial court did not err in allowing
Dr. Farleigh to testify or in giving Instruction No. 18, we
AFFIRM the judgment below.
_______________________________
1 Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003).
2 Zaverl v. Hanley, 64 P.3d 809, 812 n.6 (Alaska 2003)
(quoting Walden v. Dep't of Transp., 27 P.3d 297, 301 (Alaska
2001)).
3 Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001).
4 Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997).
5 Jaso v. McCarthy, 923 P.2d 795, 800 (Alaska 1996) (quoting
Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska
1992)).
6 Zaverl v. Hanley, 64 P.3d 809, 813-15 (Alaska 2003).
7 Id. at 814 & n.10, 815.
8 Evidence Rule 403 states: "Although relevant, evidence may
be excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
9 Cf. Getchell v. Lodge, 65 P.3d 50 (Alaska 2003); see also
Miller v. Phillips, 959 P.2d 1247, 1250-51 (Alaska 1998).
10 Instruction No. 18 provided:
You must determine the standard of
professional learning, skill and care
required of Defendant Dr. Anderson only from
the opinions of the radiologists who have
testified as witnesses as to such standard.
If you are not able, based on the expert
testimony, to decide what level of knowledge,
skill and care other reputable radiologists
would more likely than not have possessed and
used, you must return a verdict for the
defendant.
If you are able, based on the expert
testimony, to decide what level of knowledge,
skill and care other reputable radiologists
would more likely than not have used, you
must then determine whether the defendant
possessed and used such level of knowledge,
skill and care or whether she failed to do so
and therefore was negligent. Again, you
shall make this decision only on the basis of
opinions offered by the radiologists who have
testified as experts on the applicable
standard of care.
You should consider each such opinion
and should weigh the qualifications of the
witness and the reasons given for his
opinion. Give each opinion the weight to
which you deem it is entitled.
11 AS 09.55.540 provides in part:
(a) In a malpractice action based on the
negligence or willful misconduct of a health
care provider, the plaintiff has the burden
of proving by a preponderance of the
evidence:
(1) the degree of knowledge or skill
possessed or the degree of care ordinarily
exercised under the circumstances, at the
time of the act complained of, by health care
providers in the field or specialty in which
the defendant is practicing;
(2) that the defendant either lacked this
degree of knowledge or skill or failed to
exercise this degree of care; and
(3) that as a proximate result of this lack
of knowledge or skill or the failure to
exercise this degree of care the plaintiff
suffered injuries that would not otherwise
have been incurred.
12 The Court: This is the time set
to put objections to proposed jury
instructions on the record. . . .
I'm going to ask counsel
essentially to state their
objections to the instructions they
have for the record, please.
. . . .
The Court: I just want to note for the
record, we have agreed to edit some
of these jury instructions.
Counsel will present a package, and
other objections that we have
talked about, they have all been
withdrawn except these two that
remain in Court's Exhibit 1. Is
that right?
[Freitas]: Yes, sir.
[Anderson and Alaska
Radiology]: That's
right.
The Court: All right.
[Anderson and Alaska Radiology]: What I'll
do is have my secretary retype
these ones we're editing. I think,
if it's okay, I'll bring them to
court first thing in the morning, .
. .
The Court: Sure.
[Anderson and Alaska Radiology]: . . . [A]nd
you'd better look at them in case
there's typos or a wrong word or
something, before they go final,
and then we can change it if need
be.
The Court: Okay.
[Anderson and Alaska Radiology]: But it's
correct, we've agreed - the packet
we have in front of us, as far as I
understand, we've agreed to that,
and we each only had the one
objection on each side, so . . .
The Court: Okay, great.
[Freitas]: And you have them all.
The Court: All right.
13 Alaska Civil Rule 51(a) provides in part: "No party may
assign as error the giving or the failure to give an instruction
unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which the
party objects and the grounds for the objection." See also Jaso
v. McCarthy, 923 P.2d 795, 799-800 (Alaska 1996) (explaining that
if party fails to object to jury instructions at trial, court
will only review instructions for plain error); Conam Alaska v.
Bell Lavalin, Inc., 842 P.2d 148, 152-53 (Alaska 1992) (same).
14 Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997).
15 Instruction No. 16 provided:
In a malpractice action against a health
care provider, the plaintiff has the burden
of proving by a preponderance of the
evidence:
1. the degree of knowledge or skill
possessed or the degree of care
ordinarily exercised under the
circumstances, at the time of the act
complained of, by health care providers
in the field or specialty in which the
defendant is practicing;
2. that the defendant either lacked this
degree of knowledge or skill, or failed
to exercise this degree of care; and
3. that as a proximate result of this lack
of knowledge or skill, or the failure to
exercise this degree of care, the
plaintiff suffered harm that she would
not otherwise have incurred.
In malpractice actions, the fact of the
injury, standing alone, does not raise a
presumption of malpractice.
16 Instruction No. 17 provided:
A physician has a duty to exercise the
degree of skill and care expected of a
reasonably prudent physician acting in the
same or similar circumstances at the time of
the care in question. Failure to exercise
such skill and care is negligence.
