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McPherson-Corder v. Chinkhota11/20/2003
Argued November 14, 2001
The trial court in this medical malpractice case instructed the jury that it could draw an adverse inference from a party's unexplained failure to call a witness if the witness was peculiarly available to that party and could have provided relevant testimony. This court has warned of the dangers of such "missing witness" instructions and discouraged trial courts from giving them too freely. We have cautioned that a missing witness instruction may be given only when certain stringent conditions are met. We recognize, however, that in some cases the instruction serves a legitimate purpose and is justified. This is such a case. On the unusual facts before us, we hold that the trial court did not err in giving a missing witness instruction, and we affirm the judgment on appeal.
I.
On February 1, 1996, fourteen-year-old John Chinkhota slipped on an icy sidewalk. He fell with his legs spread-eagle and began to experience pain in his groin area. The pain subsided that night, enabling Chinkhota to sleep, but it returned the following day. That afternoon, Marieta Harper, Chinkhota's mother, took him to his pediatrician, Dr. Marilyn McPherson-Corder (Dr. Corder). Dr. Corder examined Chinkhota, found no sign of any serious problem, and concluded that Chinkhota had only sustained a minor "muscular strain."
Around 10:00 a.m. the following morning, a Saturday, Chinkhota awoke in pain, which he described as being in his genital area. The pain increased as the morning wore on and became more intense than Chinkhota previously had experienced. Ms. Harper telephoned Dr. Corder's office. The office was closed. An on-call physician (not Dr. Corder) returned the call around 11:45 a.m. and advised Ms. Harper to take Chinkhota to the Children's Hospital emergency room to be seen. Not appreciating that there was any urgency in the situation, Ms. Harper drove her other son to the mall before she took Chinkhota to the hospital emergency room. They arrived at the emergency room in the early afternoon, between 1:30 and 2:00 p.m. By this time Chinkhota's pain had worsened and he needed a cane to walk. Hospital doctors discovered that his right testicle had become abnormally twisted, or "torsed," an extremely painful condition in which the blood supply to the testicle via the spermatic cord is cut off and prompt treatment is required to prevent gangrene and loss of the testicle. In Chinkhota's case too much time had passed to save the testicle, and it had to be removed surgically that evening.
Ms. Harper commenced the present "next friend" action on Chinkhota's behalf in December 1997. (Chinkhota was substituted as the named plaintiff after he attained the age of majority.) The complaint charged that Chinkhota suffered the loss of his testicle as a result of Dr. Corder's professional negligence in two main respects. First, the complaint alleged that Dr. Corder was negligent in failing to discern the serious risk of testicular torsion and in not referring Chinkhota immediately to a urologist. Second, the complaint alleged that Dr. Corder was negligent in failing to warn Chinkhota and his mother of the potential risk of testicle loss or damage and the corresponding imperative need, in the event Chinkhota experienced increased pain in his groin area, to seek emergency treatment without delay.
Reflecting these two theories of negligence, the most important factual disputes at trial concerned what Dr. Corder did when she examined Chinkhota and what Dr. Corder told him and his mother after her examination. Dr. Corder testified that she performed a thorough physical examination that lasted at least ten to fifteen minutes, in the course of which she co
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