Lubing v. Tomlinson

2020 WY 105

JILL LUBING, Appellant (Plaintiff), v. DAVID TOMLINSON, M.D. and GRAND ANESTHESIOLOGY SERVICES, P.C., Appellees (Defendants).

S-19-0067

S-19-0068

SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 2020

August 10, 2020

Appeal from the District Court of Teton County

The Honorable Steven K. Sharpe, Judge

Representing Appellant:

Robert L. Stepans and Ryan R. Shaffer, Meyer, Shaffer & Stepans, PLLP, Missoula, Montana.

Representing Appellees:

Jeffrey C. Brinkerhoff, Jeffrey C. Brinkerhoff, P.C., Casper, Wyoming; Scott P. Klosterman, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

GRAY, Justice.

[¶1] Jill Lubing filed a medical negligence lawsuit against anesthesiologist David Tomlinson, M.D., claiming he negligently performed a regional block¹ procedure in preparation for surgery to repair Mrs. Lubing's broken wrist. She also alleged Dr. Tomlinson's employer, Grand Anesthesiology Services, P.C., was vicariously liable for Dr. Tomlinson's negligence. Following an eight-day trial, the jury unanimously found Dr. Tomlinson was not negligent. Mrs. Lubing appeals. We affirm.

ISSUES

[¶2] The issues are:

1. Did the district court abuse its discretion when it refused to investigate a juror's concerns regarding damages?

2. Did the district court abuse its discretion when it allowed a defense witness to testify to Dr. Tomlinson's character for truthfulness?

FACTS

A. Mrs. Lubing's Accident and Surgeries

[¶3] On the afternoon of March 20, 2015, Mrs. Lubing fell from a horse and went to the emergency room at St. John's Medical Center in Jackson, Wyoming. An x-ray revealed that she had a broken wrist. She discussed her treatment options with Dr. Rafael Williams, an orthopedic surgeon. Mrs. Lubing was given the choice of allowing the break to heal while splinted or to repair the wrist surgically. Mrs. Lubing opted for surgery because the estimated recovery time was significantly shorter. Mrs. Lubing told Dr. Williams that in the past she had experienced negative side effects from general anesthesia, and she decided to receive a local anesthetic (or regional block) in lieu of general anesthesia.²

[¶4] Dr. Tomlinson was called to perform the regional block. His procedure notes, dictated the day after surgery, reflect that he spoke with Mrs. Lubing regarding the regional block and she signed a consent for the procedure. When Dr. Tomlinson began toadminister the anesthetic, he was assisted by nurse Barbara Falk (Nurse Falk) and nurse anesthetist Shawn Wright (CRNA Wright). About half-way into the procedure, Mrs. Lubing "turned her head towards [Dr. Tomlinson] with a strange look." He stopped the procedure, but Mrs. Lubing immediately began to have seizure activity. Dr. Tomlinson asked Nurse Falk to "hit the code button" while CRNA Wright retrieved appropriate medication. Mrs. Lubing lost consciousness and went into respiratory failure. The restorative medications took effect while Dr. Williams, one of several doctors and nurses who had responded to the code, began cardiopulmonary resuscitation. Within minutes, Mrs. Lubing was resuscitated, her color returned, and the surgery was cancelled. Mrs. Lubing was transferred to the intensive care unit where she remained overnight. Her wrist surgery was then completed under general anesthesia without incident. She was discharged the following day.

[¶5] In July 2017, Mrs. Lubing filed a complaint. She alleged Dr. Tomlinson's medical negligence in performing the regional block caused a life-threatening condition known as Local Anesthetic Systemic Toxicity (LAST), which resulted in a permanent neurocognitive disorder. The complaint also alleged Dr. Tomlinson's employer, Grand Anesthesiology Services, P.C., was vicariously liable for her injury. Mrs. Lubing sought damages for, among other things, physical and mental pain and suffering, and loss of enjoyment of life. An eight-day trial began on December 11, 2018.

[¶6] On appeal, Mrs. Lubing first challenges the district court's refusal to interview a juror who spoke with the court bailiff after the jury was empaneled. She next contests the district court's admission of witness testimony regarding Dr. Tomlinson's truthful character.

B. Voir Dire

[¶7] During jury voir dire, Mrs. Lubing's counsel said:

So I think what looks like the last thing that I'll talk to everybody about is that you're going to hear evidence in this case regarding emotional damages and pain and suffering.

And what I would ask is if there is anyone here who would have trouble, even just a little bit, of giving money or of allowing money for pain and suffering or emotional damages? Is there anybody who would have trouble with that?

One of the prospective jurors expressed some reservation with that concept, explaining he was unsure how to quantify such damages. After some discussion, that juror said, "I would have to do some soul searching to award something like that on a pain andsuffering, you know." Several jurors agreed with this statement. In particular, Juror E.G. responded:

I don't necessarily have anything to add, just that I agree with what they already said, that I would have to do some soul searching for sure to think about awarding something for pain and suffering.

. . .

. . . I think the thing I find hardest about it is not that I don't think it exists as much as in court with the restrictions that you place on the evidence. And looking at these things, you know, they are cut and dry. And then all of a sudden they're asking the jurors to make a distinction that doesn't have boundaries is hard because -- for an individual to make a decision. Make sense?

[PLAINTIFF'S COUNSEL]: Yes. Thank you. I appreciate that. Anyone else?

Mrs. Lubing's counsel did not ask further questions of Juror E.G. or the other jurors who expressed reservations on this topic. The party's counsel then passed the jury—including Juror E.G.—for cause.

[¶8] After opening statements and the partial testimony of Mrs. Lubing's first witness, the court bailiff told the district court that Juror E.G. had approached the bailiff during the break. The bailiff said Juror E.G. "had a question . . . about medical expense damages." The district court allowed both parties to question the bailiff about Juror E.G.'s communication.

[¶9] The following day, the court held an in-chambers conference with counsel. Mrs. Lubing's counsel stated: "We don't know the contours of what [the juror's] concerns are. But it sounded like it is potentially some sort of prejudice that she's very concerned about, and also that she would come forward and ask that a message be delivered to Your Honor." Counsel asked that the court hear from the juror "[a]nd then if we need to voir dire [the juror] further, we do."³ Dr. Tomlinson's counsel asserted that the bailiff told him that the juror did not ask to relay a message to the district court or for further action. He argued that reopening voir dire any time a juror has a question would set a dangerous precedent. He contended that if the juror was confused, any confusion would be clarifiedwhen the jury was instructed on damages. The district court ruled it would not reopen the voir dire. It reasoned: (1) there was no indication by the juror that she could not be fair and impartial; (2) the jury was questioned on the issue of damages during voir dire; (3) the jury panel had been passed for cause; (4) the juror had not asked to speak to the court; and (5) the jury would later be instructed on the law as to the measure of damages.

C. Testimony Regarding Dr. Tomlinson's Truthful Character

[¶10] At trial, Mrs. Lubing claimed Dr. Tomlinson negligently injected anesthetic into her blood stream, causing LAST. If anesthetic is introduced into the bloodstream, it can numb the heart and the brain. When this occurs, the patient may experience seizures, cardiac arrest, and cardiopulmonary collapse. Mrs. Lubing alleged Dr. Tomlinson failed to follow basic safety protocols to prevent or minimize the damage caused by an intravascular injection. Specifically, Mrs. Lubing alleged Dr. Tomlinson did not use sufficient preprocedural oxygen and sedative medication to reduce seizure activity; did not include epinephrine in the anesthetic mixture to provide a check against the anesthetic travelling to the heart or brain; did not use ultrasound and doppler color to properly monitor the placement of the needle;⁴ and Dr. Tomlinson's notes indicated he continued to inject anesthetic despite the "relatively negative" aspiration results.⁵ The aspiration must be completely negative to avoid an intravascular injection.

[¶11] Dr. Shari Peach, Mrs. Lubing's expert anesthesiologist, testified that, in her opinion, Dr. Tomlinson failed to meet the standard of care. She based her testimony on her review of Mrs. Lubing's medical records and deposition testimony of other witnesses. Dr. Peach testified Dr. Tomlinson's notes failed to reference several protective protocols. Based on these omissions, Dr. Peach assumed the protocols were not performed. While Dr. Peach initially questioned whether Mrs. Lubing was appropriately monitored—Dr. Tomlinson's notes did not mention monitoring—at trial she stated she no longer had those misgivings because "everyone seems to say that [Mrs. Lubing] was in fact monitored, though it's not documented."⁶ Next, Dr. Peach opined that Dr. Tomlinson's actions fell below the standard of care in failing to give Mrs. Lubing a preprocedural sedative to decrease the severity of any potential seizure. Dr. Peach further concluded Dr. Tomlinson should have used an oxygen mask to provide enough oxygen to "prevent immediate desaturation"...