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Kelley v. Abdo1/28/2005
Appellant Lona Kelley sued appellee Dr. Joseph Abdo for medical malpractice and appellee Cobre Valley Community Hospital (CVCH) for negligent supervision and privileging after the breast reduction surgery Abdo performed on Kelley at CVCH led to Abdo removing both of Kelley's breasts. Kelley raises eight issues on appeal, one of which we conclude requires us to reverse the judgment in favor of the defendants.
The following facts are not in dispute. After the breast reduction surgery, Kelley experienced complications that led Abdo to believe Kelley had developed necrotizing fasciitis in both breasts, a potentially fatal infection. Kelley was taken back to surgery and Abdo opened the incisions and removed all tissue he determined was necrotic-essentially all of her breast tissue. Later laboratory analysis, however, revealed no necrotizing infection.
One of the issues at trial was Kelley's claimed emotional distress and its cause. On direct examination Kelley's counsel asked her about her former husband. Kelley testified: " n the beginning everything was wonderful, then he began to drink and the more time that passed, the more that he drank, to the point of the marriage being unbearable."
When Kelley's counsel asked if " he drinking cause problems," she responded: "I was taking my children to the Mormon Church and, . . . his drinking just simply was a total embarrassment. Very difficult to have children in a religious setting with an alcoholic husband." Neither defendant objected to Kelley's comments. On cross-examination by CVCH the following transpired over Kelley's objection:
Q: . . . You had mentioned yesterday about the Mormon religion. You recall that testimony?
A: Yes, I do.
Q: And I don't mean in any way to criticize any religion, but have you changed or left the Mormon church?
A: Yes. I lost my faith in God.
Q: And you went to what faith, ma'am?
A: The Wicca religion.
JUROR: We can't hear.
[DEFENSE COUNSEL]: I'm sorry. Let me ask it again. They couldn't hear what I said.
[DEFENSE CO-COUNSEL]: Or her.
Q: [DEFENSE COUNSEL]: Did you change from the Mormon religion and go to another one?
A: Yes. I lost my faith in God.
Q: What was the next religion you went to?
A: Wicca.
Q: Wicca. When did you change religions?
A: I started investigating Wicca in 1998.
Q: Okay. And could you tell us what Wicca is, please?
A: Wicca predates Christianity, and the main belief in the Wicca faith is do no harm.
Q: And you actually took the Wicca pledge; is that correct?
A: Correct.
Q: For the court reporter, please, would you spell that Wicca?
A: W-I-C-C-A.
Q: There is a religion within Wicca called "paganism," or is it one and the same?
A: I believe that Wicca is referred to as a pagan religion because it-they do not believe-we do not believe in God.
Q: I'm going to show you Exhibit Number 60, which is a record from-there's a tab-Desert Samaritan Hospital. Do you see the tab?
A: Yes, I do.
Q: And this is dated January of 2000; correct?
A: Correct.
Q: And, again, and I'm just going to the place that says, "Belief system." And it says, "Mother Earth, fire, rain, wind, reincarnation, pagan"?
A: Correct, that's what it says.
Q: I just wasn't sure that was accurate. And it was around this time, January of 2000, you changed religions; is that right?
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