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McDowell v. Our Lady of Bellefonte Hospital2/14/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Appellant, Ricky McDowell, appeals from a judgment entered after the circuit court directed verdict entered in favor of the Appellee, Our Lady of Bellefonte Hospital ("the hospital") and a jury returned a verdict in favor of Manuel Garcia, M.D., in this medical negligence case.
McDowell first contends that the trial court erred in excluding evidence that he lacked medical insurance as motive for Dr. Garcia's alleged failure to order tests to rule out appendicitis. The standard of review of a trial court's evidentiary rulings is abuse of discretion. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."
McDowell's reliance upon Kentucky Rules of Evidence 411 is misplaced. The rule deals with the admissibility of evidence of insurance against liability of the person who acted negligently or otherwise wrongfully. Equally misplaced is McDowell's reliance upon Wallace v. Leedhanachoke, which dealt with evidence of liability insurance in a medical negligence case. This Court held that the "trial court did not abuse its discretion by ruling inadmissible evidence that the defendant-physician and his expert shared the same liability carrier.... ts arguable relevance or probative value is insufficient to outweigh the well-established rule as to the inadmissibility of evidence as to the existence of insurance...."
McDowell has provided no authority to convince us that the trial court erred in excluding evidence that he had no medical insurance. We find no abuse of discretion.
Next, McDowell asserts that the trial court erred in refusing to permit him to treat Dr. Bailey as a "hostile witness." McDowell's complaint appears to be that the trial court refused to allow Dr. Bailey, a treating physician, to offer opinion about standard of care. At trial, defense counsel objected to Dr. Bailey's opinion, on grounds that he had never been identified as an expert on the issue. McDowell maintained that Dr. Bailey had been identified as an expert in correspondence stating that he was the treating physician. Although Dr. Bailey's deposition had been taken, objection was made to the standard of care questions and no opinion was ever given. The trial court sustained the objection to Dr. Bailey's standard of care testimony:
I've looked at this deposition of Dr. Bailey, and that – there was an objection placed on the record. He was never asked that. I think it would be unfair at this point to allow you to use this witness to go to the ultimate issue. I mean, you can ask him in his expert opinion whether or not he thought that he had a ruptured appendix, and I thought that was what you were going to do. But, as far as the ultimate issue,... you've got somebody for that as your witness, and...I think that's the one that you should use. So, I'm going to sustain the objection on this issue. Dr. Garcia responds, and we agree, that the issue was not preserved for review, because McDowell did not offer the excluded testimony by avowal. Nevertheless, we find no abuse of discretion in the trial court's exclusion of Dr. Bailey's opinion testimony.
Next, McDowell asserts that the trial court erred directing a verdict in the hospital's favor. Upon motion for directed verdict, "the trial court must consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable intendment that the evidence can justify. On appeal the appellate court considers the evidence in the same light."
McDowell contends that Dr. Heis
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