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MCGEE v. BRUCE HOSPITAL SYSTEM3/18/1996
Gees had not presented any expert testimony from a cardiologist regarding the standard of care for performing a pericardiocentesis. The McGees contend the trial court erred. We agree. The trial court had previously ruled the McGees' expert, Dr. Podgorny, could not testify as to the standard of care for a cardiologist. Dr. Podgorny testified he performs pericardiocenteses and is familiar with the standard of care required in performing them. As with the placement of the catheters, although pericardiocenteses are performed by many different specialists, the standard is the same. Gooding, supra. Thus, we hold the trial court erred by failing to qualify Dr. Podgorny. The McGees did not have an expert because the trial court erroneously refused to qualify Dr. Podgorny as an expert in cardiology.
The trial court then refused to allow the McGees to call Dr. Warren Holland, an expert cardiologist, who was listed as an expert by Dr. Blaker. The McGees also stated in their pre-trial brief they "may call two of the Defendant's expert witnesses: Steven Schable , M.D., and Warren F. Holland, Jr., M.D. . . ." Dr. Holland was expected to be called at trial by the defense.
Generally, the decision whether to exclude an expert witness is within the trial court's discretion. Creed, supra. The right to compel an expert to testify is subject to the traditional limitations which exclude prejudicial, misleading, or cumulative evidence. "`An important consideration in determining whether one employed as an expert by one party may or should be required to testify as such at the
Here, we find the trial court abused his discretion by excluding Dr. Holland. The McGees' rights were substantially affected when the trial court excluded Dr. Holland. The McGees had retained an expert, Dr. Podgorny, who was disqualified by the trial court. The McGees had listed Dr. Holland. He had been deposed and was expected to be called at trial by Dr. Blaker. Under these particular circumstances, we hold in fairness the McGees should have been allowed to call Dr. Holland and the trial court abused his discretion by precluding him from testifying.
The trial court erred by not qualifying Dr. Podgorny and directing a verdict for Dr. Blaker. Therefore, we reverse the trial court's decision and remand for a new trial as to Dr. Blaker.
5) Dr. Schabel
The McGees contend the trial court also erred by precluding them from calling Dr. Warren Schabel, the defendant's expert radiologist. Upon learning the McGees wanted to call Dr. Schabel, Dr. Lee withdrew Dr. Schabel as an expert. Dr. Lee contended this precluded the McGees from calling him. The trial court refused to allow Dr. Schabel to be called.
In his deposition, Dr. Schabel stated at least three times Dr. Lee's actions were not the proximate cause of Donna's death. Dr. Schabel's testimony would not have established proximate cause. The McGees have not shown any prejudice from the trial court's decision to preclude the testimony of Dr. Schabel. Thus, we hold the trial judge did not err in denying the McGees' new trial motion.
Affirmed in part; reversed in part; and remanded.
FINNEY, C.J., TOAL, BURNETT, JJ., GEORGE T. GREGORY, JR., and Acting Associate Justice, concur.
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