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Mitzell v. Glover3/20/2000
03(18), SCRE, provides that a published treatise on medicine established as a reliable authority does not constitute hearsay. The rule also states that, "if admitted, the statements may be read into evidence but may not be received as exhibits."() The Mizells concede that relevant portions of the chapter were read into evidence, but argue the jury was left to rely upon its "imperfect memory" of the contents of the chapter because the treatise itself was not admitted.
We find no prejudicial error. The trial court allowed the Mizells to cross-examine Dr. Buckholz extensively about the article, and the substance of the matter was before the jury. Accordingly, the Mizells are not entitled to a new trial as they have exhibited no prejudice.
III. Qualification of Dr. Martin as an Expert Witness
The Mizells contend the trial court erred in allowing Dr. Dennis Martin, a podiatrist retained by Dr. Glover, to testify concerning the treatment provided by the Pain Center and his interpretation of the treating physician's notes because he "was a podiatrist whose training and license ended at the ankle." The Mizells contend Dr. Martin is not an expert on RSD, and should not have been permitted to testify that Mizell failed to follow through with treatment.
To be qualified as an expert witness, "a witness must have acquired by reason of study or experience or both such knowledge and skill in a business, profession, or science that he is better qualified than the jury to form an opinion on the particular subject of his [or her] testimony."() The qualification of an expert witness and the admissibility of his or her testimony are matters left to the sound discretion of the trial court, whose decision will not be reversed on appeal absent an abuse of that discretion and prejudice to the opposing party.() An abuse of discretion occurs when there is an error of law or a factual conclusion that is without evidentiary support.()
Dr. Martin is a South Carolina podiatrist retained as an expert by Dr. Glover. He practices in Charleston, and his practice deals with the treatment of and surgery for foot and ankle pathology. He attended a four-year podiatry school, Pennsylvania College of Podiatric Medicine, and he served a three-year residency program in Georgia. He is certified by the American Board of Podiatric Surgery. Dr. Martin has published scholarly articles in journals and textbooks, and he is one of three editors of what he called the leading text on foot surgery by McGlamry, The Comprehensive Textbook of Foot Surgery. Dr. Martin also has hospital privileges at several hospitals in the Charleston area.
Dr. Martin first testified that Dr. Glover did not breach the standard of care for the podiatric profession. He then stated he reviewed the notes of other physicians, including those of the Pain Center. When questioned on direct examination about his understanding of what took place at the Pain Center, Dr. Martin stated:
In reviewing and seeing the Clinic's notes, the initial diagnosis . . . was early RSD and I believe one of the first things they did was use a sympathetic block to see if she would get any relief from that sympathetic block. That to the pain management specialists gives them an idea whether this is a true sympathetic pain or whether there might be another cause for it. There was an immediate relief, but it was not a complete relief. There was a very confusing picture to the pain management doctors to the point where the next several visits concentrated more on the local problem in the foot, which was the site of the neuroma incision . . . .
The Mizells objected, stating Dr. Martin was not qualified to comment on wha
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