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Mizell v. Glover9/3/2002
see an orthopaedist in Charlotte, Dr. Gill. Dr. Glover sent a letter and all his records to Dr. Gill.
On July 29, 1993, Mrs. Mizell visited Dr. Gill. He diagnosed "possible early [Reflex Sympathetic Dystrophy]," gave her a prescription for a custom-made orthopaedic shoe, and advised her to walk on her foot as much as possible. Dr. Gill scheduled Mrs. Mizell to return in two months. When she returned, Dr. Gill believed her condition had deteriorated, and he referred her to the Southeastern Pain Clinic for further diagnosis and treatment.
Mrs. Mizell received some treatment at the pain clinic for RSD (including sympathetic blocks), but testified she received no lasting relief from it. She stated the last treatment option the pain clinic gave her was to attach a stimulator box to a wire along her spine through which she might be able to control the pain. She and Mr. Mizell testified they declined the treatment because they were told it carried a risk of paralysis. Dr. Romanoff, an anesthesiologist at the Southeastern Pain Clinic, testified in his deposition (read at trial) that he believed Mrs. Mizell was totally disabled, but that she could have received some relief from the stimulator which she chose not to pursue.
In February 1996, the Mizells brought this medical malpractice and loss of consortium action against Dr. Glover. The Mizells alleged Dr. Glover committed malpractice, breaching the podiatrists' duty of care, by failing to diagnose Mrs. Mizell with RSD during his treatment of Mrs. Mizell. Mrs. Mizell claims she is totally disabled as a result of Dr. Glover's failure to diagnose the RSD. Dr. Glover denied the malpractice allegations and the case went to trial in December of 1997. The jury returned a verdict for Dr. Glover and the Mizells appealed. The Court of Appeals affirmed, and this Court granted certiorari. The following evidentiary issues are before this Court:
I. Are the Mizells entitled to a new trial because Dr. Glover's counsel cross-examined the Mizells' expert witness, Dr. Marne, extensively regarding a jury interrogatory from a separate civil suit against Dr. Marne, and then misstated that jury's finding in his closing statement?
II. Are the Mizells entitled to a new trial because the trial court refused to admit an article written by Dr. Glover's testifying expert, Dr. Buckholz, as an exhibit, but allowed the Mizells' counsel to publish portions of the article during cross-examination?
III. Are the Mizells entitled to a new trial because the trial court permitted a podiatrist, testifying as an expert for Dr. Glover, to comment on the treatment of a medical doctor at the Southeastern Pain Clinic?
Law/Analysis
I. Jury Interrogatory
The Mizells argue that Dr. Glover's attorney improperly questioned their expert, Dr. Marne, about a jury interrogatory from a separate civil suit against Dr. Marne. The Mizells contend the evidence of the jury's finding was extrinsic evidence prohibited under Rule 608(b) of the South Carolina Rules of Evidence ("SCRE"). The Mizells also argue that questions regarding the jury interrogatory were improper because the case was settled and the interrogatory did not represent a final judgment. We agree that the evidence of the jury's finding was improperly admitted.
The interrogatory in question arose out of a suit by Minnesota Mutual Life Insurance Company ("Minnesota Life") against Dr. Marne for making allegedly false statements regarding a personal disability claim he filed. At trial, a Florida jury was asked by interrogatory if Dr. Marne had made misrepresentations to his insurance company. The jury answered that he had. The jury was th
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