{ "id": 1906041, "name": "Lois MONTGOMERY and Bill Montgomery v. Dr. R. C. BUTLER", "name_abbreviation": "Montgomery v. Butler", "decision_date": "1992-06-01", "docket_number": "91-100", "first_page": "491", "last_page": "502", "citations": [ { "type": "official", "cite": "309 Ark. 491" }, { "type": "parallel", "cite": "834 S.W.2d 148" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "302 Ark. 439", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884332 ], "weight": 4, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0439-01" ] }, { "cite": "277 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750255 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "it is the duty of the judge to instruct the jury, and each party to the proceeding has the right to have jury instructed upon the law of the case with clarity and in such a manner as to leave no ground for misrepresentation or mistake." }, { "parenthetical": "it is the duty of the judge to instruct the jury, and each party to the proceeding has the right to have jury instructed upon the law of the case with clarity and in such a manner as to leave no ground for misrepresentation or mistake." } ], "opinion_index": 0, "case_paths": [ "/ark/277/0406-01" ] }, { "cite": "308 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904367 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0154-01" ] }, { "cite": "308 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904358 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0622-01" ] }, { "cite": "291 Ark. 606", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872652 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0606-01" ] }, { "cite": "284 Ark. 65", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878649 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0065-01" ] }, { "cite": "253 Ark. 550", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627452 ], "weight": 2, "year": 1972, "pin_cites": [ { "parenthetical": "case decided under prior Rule 9; although not in compliance with Rule 9(d), the abstract was sufficient to determine the issue on appeal" }, { "parenthetical": "case decided under prior Rule 9; although not in compliance with Rule 9(d), the abstract was sufficient to determine the issue on appeal" } ], "opinion_index": 0, "case_paths": [ "/ark/253/0550-01" ] }, { "cite": "261 Ark. 42", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678934 ], "weight": 2, "year": 1977, "pin_cites": [ { "parenthetical": "case decided under prior Rule 9; the abstract was not so deficient as to call for an affirmance under Rule 9(d)" }, { "parenthetical": "case decided under prior Rule 9; the abstract was not so deficient as to call for an affirmance under Rule 9(d)" } ], "opinion_index": 0, "case_paths": [ "/ark/261/0042-01" ] } ], "analysis": { "cardinality": 841, "char_count": 19158, "ocr_confidence": 0.888, "pagerank": { "raw": 2.9632221598457605e-07, "percentile": 0.849743556477617 }, "sha256": "30f8331cb68e397952ae8db601ab3d61567a440f147ecfbed9c30062a9234649", "simhash": "1:0abbd4bedc0ce9ed", "word_count": 3153 }, "last_updated": "2023-07-14T19:13:54.665869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lois MONTGOMERY and Bill Montgomery v. Dr. R. C. BUTLER" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis is an appeal from a jury verdict in favor of the appellee, Dr. R.C. Butler, on a claim of medical malpractice against him by the appellants, Lois and Bill Montgomery.\nThe underlying facts show that Mrs. Montgomery was referred to Dr. Butler, a gastroenterologist, by her famialy physician, Dr. Howard R. Harris, for tests and treatment of her complaints of recurrent stomach pains, nausea, and diarrhea, including evaluation for possible Crohn\u2019s disease. In February 1987 Dr. Butler performed a colonoscopy, in which he found no evidence of Crohn\u2019s disease, and instituted treatment for inflammatory bowel disease. In June 1987, Mrs. Montgomery entered Baptist Medical Center where another gastroenterologist referred by Dr. Harris, Dr. Bill Morton, performed tests that revealed the presence of Crohn\u2019s disease.\nDr. Morton treated Mrs. Montgomery for six weeks, and she showed temporary signs of improvement. In late July 1987, however, her condition worsened, and she underwent surgery for the removal of a large portion of her small intestine.\nThe Montgomerys filed suit against Dr. Butler on the basis that he was negligent in not having diagnosed or treated Mrs. Montgomery for her Crohn\u2019s disease. After trial, the jury returned a verdict in favor of Dr. Butler, and the Montgomerys now assert four points of error on appeal: 1) the trial court erred in failing to grant a mistrial when Dr. Butler presented inadmissible and prejudicial evidence to the jury, 2) the trial court abused its discretion in allowing certain surgeons to testify as experts on Dr. Butler\u2019s behalf concerning the treatment of Crohn\u2019s disease by medication as distinguished from treatment by surgery, 3) the trial court erred in allowing and condoning the use of the phrase \u201cguilty of medical malpractice\u201d to be stated as law before the jury, and 4) the trial court erred in unduly limiting their examination of witnesses.\nDr. Butler argues that the Montgomerys\u2019 appendix is defective under Ark. Sup. Ct. R. 9 because they failed to include in their appendix the trial court\u2019s final judgment, their motion for judgment notwithstanding the verdict or, in the alternative, for new trial, and their notice of appeal.\nRule (9) (d) at the time the Montgomerys filed their appendix provided in pertinent part:\n(d) Appendix. \u2014 Following the argument portion of the appellant\u2019s brief, the appellant shall include an appendix, consisting of those portions of the designated record . . . the appellant deems dispositive of or directly relevant to the issue or issues on appeal. . . . The appendix shall include, in the following order:\n* * *\n(ii) relevant pleadings;\n* * *\n(v) the verdict or findings of fact, conclusions of law and judgment or decree;\n(vi) relevant post trial motions and orders;\n* * *\n(ix) the notice of appeal, as well as the petition for review if the case has been decided by the Arkansas Court of Appeals.\nFailure to place a copy of a part of the record in the appendix will not preclude the court from referring to it, but the court will not consider itself obligated to go beyond reading the briefs and included or separate appendices to decide a case.\nFrom examination of the Montgomerys\u2019 appendix, it is obvious that they have failed to comply with Rule 9(d) by not including any pleadings, the verdict, notice of appeal, or any post-trial motions as required by the rule. The question then arises as to whether we can decide the points of error raised by the Montgomerys in their arguments by reading their briefs. The quick answer is that we find from a reading of the briefs and the appendices that sufficient material parts as are necessary for an understanding of the questions at issue have been presented to us, and we can and should render our decision on the merits. In doing so, we affirm. See generally Harrison Civil Serv. Comm\u2019n v. Reid, 261 Ark. 42, 546 S.W.2d 413 (1977) (case decided under prior Rule 9; the abstract was not so deficient as to call for an affirmance under Rule 9(d)); Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972) (case decided under prior Rule 9; although not in compliance with Rule 9(d), the abstract was sufficient to determine the issue on appeal).\nI. MISTRIAL\nInitially, the Montgomerys contend that the trial court erred in failing to grant a mistrial when Dr. Butler presented inadmissible and prejudicial evidence to the jury. Specifically, the Montgomerys allude to Exhibit 11, which is not contained in the transcript, and to Court Exhibit 2, which is in the transcript but which is not part of their appendix or Dr. Butler\u2019s supplemental abstract.\nArkansas Sup. Ct. R. 9(d) provided that the failure to place a copy of a part of the record in the appendix will not preclude the court from referring to it, but the court will not consider itself obligated to go beyond reading the briefs and included or separate appendices to decide a case. In examining the parties\u2019 briefs and appendices, we find that the only reference to these materials that the Montgomerys claim is objectionable is their inclusion in their briefs of the following exchange between counsel and the trial judge in an in-chambers hearing:\nMR. OHM: It was Defendant\u2019s Exhibit 11, page 2 containing the reference to insurance at the bottom of the page, your Honor.\nTHE COURT: Yes, I see it. I was just trying to figure out what kind of document it is.\nMR. BRAMHALL: This was one of Dr. Butler\u2019s records. The only thing of significance on there is the. . . .\nTHE COURT: Is the name United Employers\u2019 Federation?\nMR. BRAMHALL: Yes, sir. Where it says \u201cInsurance,\u201d it is printed, \u201cInsurance,\u201d and then \u201cUnited Employers\u2019 Federation, Post Office Box, Searcy, Arkansas. Name of Policy Holder: Employers\u2019 Group.\u201d\nAs we do not have either Defendant\u2019s Exhibit 11 or Court\u2019s Exhibit 2 properly before us, we are unable to determine from this exchange the exact nature of the documents in question or their contents. Although we find, in examining the record, Court\u2019s Exhibit 2, we are not obliged to consider it because we do not go to the record to reverse. Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984). Consequently, we are unable to decide this issue on the merits.\nII. EXPERT TESTIMONY\nNext, the Montgomerys argue that the trial court abused its discretion in allowing certain surgeons to testify as experts on Dr. Butler\u2019s behalf concerning the treatment of Crohn\u2019s disease by medication as distinguished from treatment by surgery.\nWith regard to the admissibility of expert testimony, we reiterated in Hardy v. Bates, 291 Ark. 606, 727 S.W.2d 373 (1987), that whether a witness may give expert testimony rests largely within the sound discretion of the trial court and that determination will not be reversed unless an abuse of discretion is found. Additionally, we have noted that expert testimony is admissible if it will aid the trier of fact in understanding the evidence or in determining a fact in issue. An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier to understand and draw its own conclusions. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Finally, we have consistently held that a jury is not bound to accept opinion testimony of experts as conclusive or to believe the testimony of experts any more than the testimony of other witnesses; the jury alone determines the weight to be given the evidence, and it may accept or reject all or any part of it that its members believe to be true. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).\nIn this case,, the Montgomerys presented the expert testimony of Dr. Harris, a family practitioner, and Dr. Morton, a gastroenterologist, as to Mrs. Montgomery\u2019s tests, treatments, diagnoses, and surgery. Dr. Butler presented the expert testimony of three witnesses: 1) Dr. Mark Gibbs, a surgeon specializing in the surgical treatment of Crohn\u2019s disease who was trained to understand its pathophysiology, etiology, epidemiology, and medical treatment, 2) Dr. Everett Tucker, Jr., a surgeon, who was frequently called to see patients with Crohn\u2019s disease, and 3) Dr. Ralph Lig\u00f3n, a surgeon, who was familiar with the different types of medical regimens prescribed for patients with Crohn\u2019s disease.\nSimply put, the record reflects that the trial court was extremely evenhanded in qualifying both party\u2019s witnesses as experts for the treatment of Crohn\u2019s disease. All of the witnesses were qualified to discuss Crohn\u2019s disease, their testimony aided the jury in understanding the evidence, and the jury was free to weigh the testimony based upon the particular qualifications of the individual doctor. Accordingly, the trial court did not abuse its discretion.\nIII. PHRASE \u201cGUILTY OF MEDICAL MALPRACTICE\u201d\nIn their third point of error, the Montgomerys claim that the trial court erred in allowing and condoning the use of the phrase \u201cguilty of medical malpractice\u201d to be stated as law before the jury. During the cross-examination of Dr. Harris by counsel for Dr. Butler, the following exchange occurred:\nMR. BEARD: Does that mean that the aggressive doctors are guilty of medical malpractice, or the conservative doctors are guilty of malpractice?\nMR. BRAMHALL: Your Honor, we object to the term, guilty of medical malpractice. The test in this case is whether the physician acted below the standard of care for his particular specialty in an area. There is nothing in the law in the case or anything else that says anything about somebody being guilty of malpractice.\nMR. BEARD: AMI 1501 uses that specific language.\nMR. BRAMHALL: Uses that phrase?\nMR. BEARD: Yes. I\u2019m sorry; AMI 1501 talks about guilty of medical malpractice, your Honor.\nTHE COURT: Overrule the objection.\nMR. BEARD: Thank you.\nAMI 1501 addresses negligence of a medical professional and provides as follows:\nIn [diagnosing the condition of] [treating] [operating upon] a patient, a [physician] [surgeon] [dentist] must possess, and, using his best judgment, apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same [type of practice] [specialty] in the locality in which he practices, or in a similar locality. A failure to meet this standard is negligence.\nWhile it is clearly apparent that the instruction does not use the phrase \u201cguilty of medical malpractice,\u201d Dr. Butler\u2019s counsel\u2019s misstatement in this context is at most an abstract statement of counsel that was cured when the trial court properly instructed the jury at the conclusion of the trial as to the content of AMI 1501. See generally W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982) (it is the duty of the judge to instruct the jury, and each party to the proceeding has the right to have jury instructed upon the law of the case with clarity and in such a manner as to leave no ground for misrepresentation or mistake.) Furthermore, statements of counsel are not to be considered as evidence, and the trial court instructed the jury with AMI 101, which states, \u201cYou should not consider any rule of law with which you may be familiar unless it is included in my instructions. . . . You are to apply the law as contained in these instructions to the facts . . . .\u2019\u2019Asa result, we cannot say that this statement was prejudicial.\nIV. LIMITATION OF WITNESSES\nFinally, the Montgomerys assert that the trial court erred in unduly limiting their examination of witnesses. They specifically enumerate four instances that they claim to be error.\nA. Impeachment and Cross-examination of Dr. Tucker\nDuring cross-examination of Dr. Gibbs, counsel for the Montgomerys asked him about a letter he had written on February 27, 1989, and about a second letter report in which he had changed his opinion. Dr. Gibbs explained that he felt that he did not have all of the necessary information when he wrote the first letter and that he subsequently wrote a second letter explaining his position when he was made aware of the medical treatment rendered to Mrs. Montgomery by Dr. Morton.\nLater, during the cross-examination of Dr. Tucker, counsel for the Montgomerys handed him a copy of Dr. Gibbs\u2019s first letter and asked him about the letter\u2019s stated opinion that if medical treatment had been instituted at an earlier date then Mrs. Montgomery\u2019s condition would have been less severe and there would have been less removal of intestine. Dr. Butler\u2019s counsel objected, which objection was sustained by the trial court unless the Montgomery\u2019s counsel was willing to give Dr. Tucker both of Dr. Gibbs\u2019s reports. Counsel for the Montgomerys consequently gave both reports to the witness without objecting to the trial court\u2019s requirement.\nNow, the Montgomerys argue that the trial court erred in requiring both reports to be used for cross-examination since the first report was used in an attempt to impeach or test the basis for the expert witness\u2019 opinions. However, as the Montgomerys failed to make this objection at trial, they are now precluded from raising it for the first time on appeal. Stotts v. Johnson, 302 Ark. 439, 791 S.W.2d 351 (1990).\nB. Trial Court\u2019s Comment on Testimony\nDuring Dr. Gibbs\u2019s cross-examination by the Montgomerys\u2019 counsel, Dr. Gibbs was questioned at length about his two letter reports and the reason for the change in his opinion. Dr. Gibbs stated that when he wrote his first letter that he had met with the Montgomerys\u2019 counsel \u201cin good faith\u201d with the understanding that he had been provided with all of Mrs. Montgomery\u2019s medical records. After a further lengthy period of cross-examination, Dr. Gibbs stated that he suspected that he had not been provided with the second page of Dr. Woodard\u2019s report. At this point, the following exchange occurred between the trial court and Mrs. Montgomery\u2019s counsel:\nTRIAL COURT: If there\u2019s some information missing the doctor should be able to say what it is; you should be able to get over this question.\nMR. DUNCAN: Your Honor, he\u2019s ....\nTRIAL COURT: Y\u2019all are just bantering back and forth with one another.\nMR. DUNCAN: It\u2019s a very important point, though. He\u2019s at least, implying ....\nTRIAL COURT: Well, I assume that I \u2014 we. . . .\nMR. DUNCAN: . . . that we . . .\nTRIAL COURT: I think we need to move on in this case . . .\nMR. DUNCAN: Your Honor, your Honor . . .\nTRIAL COURT: . . . somehow.\nMR. DUNCAN: . . . I\u2019m going to tie this up, but if I understand his testimony, he\u2019s implying Mr. Bramhall and myself withheld that second page of that report from him.\nTRIAL COURT: He\u2019s not implying it. He said he didn\u2019t have it and y\u2019all didn\u2019t furnish it to him. That\u2019s not an implication. That\u2019s what he states as a fact.\nMR. DUNCAN: Okay . . .\nTRIAL COURT: I didn\u2019t misunderstand that.\nMR. DUNCAN: . . . then I am going to probe into that, your Honor, because I don\u2019t believe that he has the recall to be able to state that, and that\u2019s what I\u2019m doing right now.\nTRIAL COURT: He doesn\u2019t have the recall to state that.\nMR. DUNCAN: Your Honor, we could have given him that report . . .\nTRIAL COURT: Okay, argue . . .\nMR. DUNCAN: We can\u2019t be called as witnesses in our own case, and that\u2019s the whole point.\nTRIAL COURT: I didn\u2019t figure you would . . .\nMR. DUNCAN: We didn\u2019t know . . .\nTRIAL COURT: I apologize for interrupting. I didn\u2019t want to take up any more time, so go ahead.\nMR. DUNCAN: Okay.\n(Emphasis added.)\nAlthough the Montgomerys now claim that the emphasized language of the trial court was in fact a comment on the testimony, they again failed to make an objection during trial in order to preserve this issue for appeal. We therefore decline to discuss it. See Stotts v. Johnson, supra.\nC. National Cooperative Crohn\u2019s Disease Study\nNext, the Montgomerys argue that the trial court erred in refusing to allow them the opportunity to question Dr. Gibbs about a study referred to as the National Cooperative Crohn\u2019s Disease Study (NCCDS). During the cross-examination of Dr. Gibbs about the NCCDS, counsel for Dr. Butler objected on the grounds that the witness had not established the authoritativeness of the study and because opposing counsel wanted to read particular sentences from the lengthy study. The trial court sustained the objection because Dr. Gibbs had not acknowledged that the study was authoritative.\nCounsel for the Montgomerys then immediately proceeded to ask Dr. Gibbs similar questions regarding the study to which he gave detailed answers. The Montgomerys\u2019 counsel also utilized the NCCDS during their examination of Dr. Tucker, Dr. Lig\u00f3n, and Dr. Butler; this extensive use of the NCCDS by the Montgomerys in their examination of Dr. Butler\u2019s witnesses negates any claim that they were prejudiced by the trial court\u2019s ruling.\nD. Legal Standard\nFinally, the Montgomerys claim that the trial court applied an incorrect legal standard regarding the form of the opinions expressed by their expert medical witness, Dr. Harris. The trial court sustained Dr. Butler\u2019s objections to Dr. Harris\u2019s testimony when he was unable to state that Mrs. Montgomery might or might not have had Crohn\u2019s disease in January 1987 and that she might or might not have ultimately had surgery if steroid treatment had commenced earlier.\nThe Montgomerys\u2019 counsel asked Dr. Harris on direct examination whether Mrs. Montgomery had Crohn\u2019s disease in January 1987, to which Dr. Harris replied that \u201c[s]he probably did.\u201d Dr. Butler\u2019s counsel objected on the ground that the question and the answer were not stated \u201cto a reasonable degree of certainty or probability.\u201d The trial court sustained the objection, and counsel for the Montgomerys did not object to the ruling. Instead, the Montgomerys\u2019 counsel simply rephrased the question, and Dr. Butler\u2019s counsel again raised the same objection.\nThe trial court stated, without objection by the Montgomerys\u2019 counsel, \u201cI would interpret the response \u2018probable\u2019 to be synonymous to \u2018possible,\u2019 and that\u2019s the objectionable part of the doctor\u2019s response . . . .\u201d The Montgomerys\u2019 counsel accepted the trial court\u2019s statement and merely proceeded to ask the question as follows:\nQ: Dr. Harris, within a reasonable degree of medical certainty, did Ms. Montgomery have or did she not have Crohn\u2019s Disease in January of \u201887?\nA: I can\u2019t answer that absolute.\nQ: We are not asking for an absolute answer. We are saying within a reasonable degree of medical certainty.\nA: I still can\u2019t answer it except possible or probably. In my opinion she had it, but possibly.\nDr. Harris\u2019s final response came in without objection from Dr. Butler, and the Montgomerys\u2019 counsel continued with other questions. Once again, the Montgomerys failed to object to this point of error and are consequently precluded from raising it on appeal. See Stotts v. Johnson, supra.\nAccordingly, the judgment of the trial court is affirmed.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Bramhall, Duncan, & Ohm, by: Phillip H. Duncan, for appellants.", "Mitchell, Williams, Selig & Tucker, by: Coleen M. Barger, for appellee." ], "corrections": "", "head_matter": "Lois MONTGOMERY and Bill Montgomery v. Dr. R. C. BUTLER\n91-100\n834 S.W.2d 148\nSupreme Court of Arkansas\nOpinion delivered June 1, 1992\nBramhall, Duncan, & Ohm, by: Phillip H. Duncan, for appellants.\nMitchell, Williams, Selig & Tucker, by: Coleen M. Barger, for appellee." }, "file_name": "0491-01", "first_page_order": 515, "last_page_order": 526 }