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MacDonald v. Bishop11/30/2000
Grafton
The plaintiff, David MacDonald, administrator of the estate of Ian MacDonald, appeals from a jury verdict for the defendant, David Bishop, M.D., in the decedent's medical malpractice action. The plaintiff argues that the Superior Court (Morrill, J.) erroneously excluded testimony of the decedent's son and brother regarding statements he made to them about his medical condition. We affirm.
I.
The following facts were adduced at trial. In December 1993, Ian MacDonald (MacDonald), the decedent, noticed a sore on the right, rear portion of his tongue. In late December or early January, he observed a small, smooth spot on his tongue that was a different color than the rest of his tongue. In late January, he saw the defendant, who had been his treating physician for more than a decade. MacDonald told the defendant that he likely had an infected canker sore, which had persisted for several weeks and made it difficult for him to swallow. The defendant diagnosed a vitamin deficiency and recommended a multi-vitamin. He did not tell MacDonald that his tongue condition could be associated with cancer or that he had a high risk for developing oral cancer. The defendant testified that he advised MacDonald to contact him if his symptoms persisted and to consult with a dentist to determine whether his dentures were causing his problems. MacDonald, however, denied this.
During the following months, MacDonald's tongue pain resolved but was replaced with numbness. Because he was having difficulty swallowing and began slurring his speech, he sought the advice of a specialist in March 1995. The specialist discovered a lump in the exact area of MacDonald's tongue where he believed he had a canker sore. A biopsy was positive for cancer. Subsequently, a portion of MacDonald's tongue, along with lymph nodes in his neck, were removed. Following surgery, he underwent chemotherapy and radiation therapy, which caused permanent side effects, including "leathery" neck muscles, difficulty swallowing, dry mouth, and complete elimination of the sense of taste.
MacDonald brought a medical malpractice action, alleging that the defendant failed to properly diagnose and treat him for the tongue condition that ultimately was diagnosed as cancer. The jury returned a verdict for the defendant, and this appeal followed.
II.
The plaintiff argues that the trial court erroneously excluded testimony from MacDonald's son and brother establishing that following his appointment with the defendant in January 1994, MacDonald told them that he had a vitamin deficiency and planned to take a multi-vitamin. The plaintiff argues that such testimony would have permitted the jury to infer that the defendant never told MacDonald that his tongue condition could be a precursor to cancer, that he should consult a dentist, or that he required any follow-up care. While MacDonald testified to what he told his brother, the plaintiff contends that the excluded testimony from the son and brother was critical corroborative evidence necessary to prove malpractice.
The plaintiff first argues that the excluded testimony was not hearsay under New Hampshire Rule of Evidence 801(c). This argument, however, was not contained in the plaintiff's notice of appeal and is, therefore, waived. See Sup. Ct. R. 16(3)(b); Unit Owners Assoc. of Summit Vista v. Miller, 141 N.H. 39, 43, 677 A.2d 138, 141 (1996).
The plaintiff alternatively contends that the excluded testimony was admissible under the state of mind exception to the hearsay rule. See N.H. R. Ev. 803(3). We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Si
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