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Otzenberger v. Park-Hwang5/10/2005
In this medical malpractice case, Dr. Esther Park-Hwang, Dr. Judy Ungerleider, and Multicare Health System (collectively, Park-Hwang) appeal a trial court order granting Kirsten and Daniel Otzenberger's motion for a new trial following a jury verdict in Park-Hwang's favor. The court granted a new trial based on (1) Park- Hwang's violation of its 'golden rule' order in limine in closing argument and (2) the trial court's refusal to permit the Otzenbergers to take a perpetuation deposition of rebuttal witnesses who were apparently unable to testify at trial.
We hold that the trial court properly denied the Otzenbergers' request for a perpetuation deposition because they did not make the showing necessary for such a deposition. There was no legal ground for the trial court to reverse its initial decision to deny the deposition. Moreover, the Otzenbergers did not object to Park-Hwang's 'golden rule'-type statement and, when considered in context, it was not 'flagrant and prejudicial.' Thus, error, if any, was waived. We reinstate the jury's verdict for Park-Hwang and remand for entry of judgment on that verdict.
FACTS
Kirsten Otzenberger was first prescribed the topical cream Efudex, also known as 5-fluorouracil, in the early 1990s after being diagnosed with human papillomavirus (HPV) and experiencing pain and irritation of the vulva or labia majora. Application of this cream causes abnormal skin cells to die and slough off, allowing normal skin cells to develop. Otzenberger had good results using the cream once a week for several weeks at a time.
In 1997, Otzenberger saw her Colorado gynecologist, Dr. Voss, complaining of symptoms of itching and dryness. Dr. Voss performed a biopsy of Otzenberger's vulva and concluded that she had developed vulvar intraepithelial neoplasia ('VIN') 1. VIN is an abnormality of the skin cells in the vulva that can be graded as 1, 2, or 3. VIN 3 denotes the worst cell abnormality and is the stage that occurs before development of cancer. VIN 1 may progress to VIN 3, and eventually cancer, but this only occurs in a small percentage of cases. Dr. Voss recommended Efudex to treat Otzenberger's condition, but Dr. Voss and Otzenberger determined Otzenberger would wait to start treatment until after she saw a doctor in Washington State, where she was planning to move.
After Otzenberger moved to Puyallup, Washington, she saw gynecologist Dr. Park-Hwang on August 28, 1998. Otzenberger told Dr. Park-Hwang that she had a long history of HPV with chronic vulvar irritation and gave Dr. Park-Hwang records of her treatment with Dr. Voss. Otzenberger told Dr. Park-Hwang that Dr. Voss had recommended that she be treated with Efudex, and she showed Dr. Park-Hwang a tube of the medication.
Dr. Park-Hwang performed pelvic examinations on Otzenberger on August 28, and again on September 14; these confirmed Dr. Voss's diagnosis of VIN 1. Between Otzenberger's August and September appointments, Dr. Park-Hwang reviewed the available medical literature on Efudex treatment and consulted a gynecologic oncologist.
At Otzenberger's September 14 follow-up appointment, Dr. Park-Hwang discussed Otzenberger's treatment options and explained that the Efudex treatment would cause the skin to slough off and make the area raw and painful. But Otzenberger wanted to try Efudex, and Dr. Park-Hwang prescribed topical application to Otzenberger's vulva once a day for 14 consecutive days. After six days of application, Otzenberger called Dr. Park-Hwang and reported painful urination, but Dr. Park-Hwang told her that this was normal and Otzenberger should continue treatment. Four days later, Otzenberger saw Dr. Park-Hwang's partner
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