{ "id": 1898876, "name": "BULL SHOALS COMMUNITY HOSPITAL v. Mark PARTEE", "name_abbreviation": "Bull Shoals Community Hospital v. Partee", "decision_date": "1992-06-29", "docket_number": "92-214", "first_page": "98", "last_page": "104", "citations": [ { "type": "official", "cite": "310 Ark. 98" }, { "type": "parallel", "cite": "832 S.W.2d 829" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "584 S.W.2d 46", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9925352 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/sw2d/584/0046-01" ] }, { "cite": "266 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718693 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0345-01" ] }, { "cite": "304 Ark. 698", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880890 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0698-01" ] }, { "cite": "278 Ark. 578", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748287 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0578-01" ] }, { "cite": "268 Ark. 541", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715420 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0541-01" ] }, { "cite": "279 Ark. 365", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746989 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/279/0365-01" ] }, { "cite": "296 Ark. 571", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892714 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0571-01" ] }, { "cite": "303 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882815 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0045-01" ] } ], "analysis": { "cardinality": 506, "char_count": 9178, "ocr_confidence": 0.882, "pagerank": { "raw": 9.816947711794901e-08, "percentile": 0.5331706597566113 }, "sha256": "0926bcdc90dff6f2c62ca52154ebfe2c0cdc5fd3509fb92b4399cf7314f93cfc", "simhash": "1:b32f89766ba4cfee", "word_count": 1461 }, "last_updated": "2023-07-14T21:02:16.191716+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BULL SHOALS COMMUNITY HOSPITAL v. Mark PARTEE" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant, Bull Shoals Community Hospital urges us to reverse a jury verdict awarded to appellee Mark Partee in a medical malpractice action. Appellant argues that evidence of insurance was improperly admitted at trial, and for this reason the trial court erred in denying appellant\u2019s motion for a mistrial and a new trial. We disagree and affirm.\nOn October 31, 1988, Partee arrived at Bull Shoals Hospital complaining of abdominal pain and constipation. Dr. Louis Delnnocentes examined Partee, and performed exploratory surgery later that afternoon. Partee suffered complications as a result of the surgery and was not discharged from the hospital until November 9, 1988. Upon discharge, Partee was instructed to see Dr. Delnnocentes in four days.\nOn November 13, 1988, Partee went to Baxter County Hospital complaining of pain at the site of his incision. Partee was treated at Baxter County Hospital for a diverticular abscess and for complications resulting from the exploratory surgery performed at Bull Shoals Hospital. Partee spent five days in intensive care, and approximately one week in a private hospital room before being discharged as an outpatient on November 25, 1988.\nAt all times relevant to this action, Partee was a member of United Health Care Plan, a health maintenance organization (HMO) sponsored and promoted by Bull Shoals Hospital. In order to qualify for payment under the Plan, the HMO required its members to use the staff of Bull Shoals Hospital, except in emergency situations or cases for which Bull Shoals Hospital could not provide treatment.\nPartee brought an action against appellant hospital seeking damages for medical malpractice and breach of contract. Partee alleged that Dr. Delnnocentes was the agent and employee of Bull Shoals Hospital, and that the hospital was liable under the doctrine of respondeat superior for the damages sustained as a result of Dr. Delnnocentes alleged malpractice. Partee further alleged that appellant hospital d/b/a United Health Care Plan breached the HMO contract by failing to pay $29,997.69 for Partee\u2019s incurred medical expenses. Prior to trial, the trial court granted Partee\u2019s motion to sever the breach of contract claim from the medical malpractice claim.\nDuring trial on the medical malpractice claim, one of the crucial disputed issues was whether Dr. Delnnocentes acted as the agent or employee of the appellant hospital. See Medi-Stat, Inc. v. Kusturin, 303 Ark. 45, 792 S.W.2d 869 (1990). Accordingly, the trial court allowed appellee to introduce evidence of the HMO contract for the limited purpose of proving that appellant hospital exercised control over Dr. Delnnocentes\u2019 treatment of patients covered by the HMO plan. Pursuant to this ruling, appellee introduced various HMO documents including his group enrollment card, group enrollment application, and group service agreement. After the introduction of each document, the trial court instructed the jury that the document should only be considered for the purpose of determining whether an agency relationship existed between the hospital and Dr. DeInnocentes.\nAppellant does not specifically challenge the introduction of the HMO documents on appeal. Rather, appellant argues that a statement by appellee\u2019s wife elicited on cross-examination, entitled appellant to a mistrial because of the cumulative prejudicial effect of this statement and the previously admitted HMO documents. The following exchange occurred on cross-examination of appellee\u2019s wife:\nQ. What was his temperature when he was taken to Baxter Regional?\nA. About 102 to 103.\nQ. But you didn\u2019t make any of those calls to Bull Shoals or Dr. Delnnocentes?\nA. I didn\u2019t see why I should____I was taking him to the emergency room.\nQ. Did you not enter an agreement with the doctor that discharged him that you would do that?\nA. Well, the way I understood the insurance, if it was an emergency, we could take him to the nearest emergency room, so that\u2019s what I did.\nAt that point, appellant moved for a mistrial on the grounds that Mrs. Partee\u2019s mention of \u201cinsurance,\u201d combined with the medical bills and HMO documents in evidence, prejudiced appellant by improperly injecting insurance evidence and the severed contractual claim regarding the nonpayment of the insurance claim.\nThe court conducted an in-chambers hearing where it denied appellant\u2019s motion for mistrial, stating that the issue of coverage had not been brought to the jury\u2019s attention. The court further noted that Mrs. Partee\u2019s statement was a response to probing by appellant\u2019s counsel, and the court offered to consider issuing a cautionary instruction at the close of the case if one was provided. Counsel for appellant then stated, \u201cI will be requesting the cautionary instruction at the close of the case.... [O]therwise I waive my objection.\u201d At the close of the case, appellant failed to proffer a cautionary instruction.\nWe do not find an abuse of discretion in the trial court\u2019s refusal to grant a mistrial. First, it is hard to see how the mention of the word \u201cinsurance\u201d prejudiced appellant. The reason insurance evidence is generally prohibited is to exclude evidence of a \u201cdeep pocket\u201d from the jury. Hacker v. Hall, 296 Ark. 571, 759 S.W.2d 32 (1988). This concern was not implicated in the present case because the \u201cinsurance\u201d to which appellee\u2019s wife referred was not the hospital\u2019s liability insurance but Partee\u2019s own health coverage under the HMO policy. In this context, no danger existed that the jury verdict would be influenced by evidence suggesting that a \u201cdeep pocket\u201d would be responsible for any liability on the part of the hospital. Second, counsel for appellant explicitly stated that he waived his objection with the unfulfilled stipulation that he would later request a cautionary instruction. We do not consider on appeal objections specifically waived at trial. See Powell v. Bishop, 279 Ark. 365, 652 S.W.2d 9 (1983); see also Nicholas v. State, 268 Ark. 541, 595 S.W.2d 237 (Ark. App. 1980).\nAppellant also argues that Mrs. Partee\u2019s response improperly injected the severed contractual claim regarding the nonpayment of Partee\u2019s hospital bills. Again, appellant specifically waived his objection at the in-chambers hearing on his mistrial motion. Furthermore, Mrs. Partee\u2019s statement did not refer to the non-payment of medical bills, but to the guidelines of the HMO contract regarding emergency situations. The trial court correctly noted that appellant\u2019s counsel invited mention of the HMO guidelines by cross-examining Mrs. Partee as to why she did not take her husband back to Bull Shoals Hospital. One who opens up a line of questioning or is responsible for error cannot be heard to complain of that for which he was responsible. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). In this case, appellant questioned Mrs. Partee as to why she did not return her husband to Bull Shoals Hospital for treatment, and Mrs. Partee\u2019s response indicated her belief that the HMO contract allowed for other facilities to provide care in emergency situations.\nA mistrial is an extreme remedy to be taken only when it is apparent that justice cannot be served by continuing the trial. Powell v. Burnett, 304 Ark. 698, 805 S.W.2d 50 (1991). The trial judge has considerable discretion in deciding whether to grant a motion for mistrial, and we will not reverse in the absence of manifest abuse. Dickerson Constr. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 46 (1979). In this case, we find no manifest abuse of discretion.\nAppellant\u2019s second argument for reversal is that the trial court erred in denying its motion for new trial. Appellant incorporates the arguments regarding the denial of the mistrial motion, and also asserts entitlement to a new trial based on the testimony of Abija Hughes, administrator of the appellant hospital. On direct examination by appellee\u2019s counsel, Hughes testified as to the hospital\u2019s obligations under the HMO plan. Hughes\u2019 testimony included an admission that the policy required the hospital to provide or arrange for hospital services. Hughes further testified that the HMO plan covered hospital stays regardless of the length of the stay.\nWhile appellant argues that the testimony prejudiced the jury by improperly injecting the contractual claim, we agree with appellee that Hughes\u2019 testimony was necessary to show the extent of the hospital\u2019s control of the treatment of HMO patients. The line of questioning pursued by appellee\u2019s attorney illustrated the hospital\u2019s economic incentive to discharge such patients, and this economic incentive, coupled with the HMO obligation to provide care, was relevant to prove the extent of the hospital\u2019s control over the doctors\u2019 determinations as to when the HMO patients should be discharged. See Medi-Stat, supra. As the agency issue was in dispute, we discern no abuse of discretion in the denial of the motion for new trial.\nAffirmed.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "Tatum Law Firm, by: Tom Tatum, for appellant.", "Frank H. Bailey and H. David Blair, for appellee." ], "corrections": "", "head_matter": "BULL SHOALS COMMUNITY HOSPITAL v. Mark PARTEE\n92-214\n832 S.W.2d 829\nSupreme Court of Arkansas\nOpinion delivered June 29, 1992\nTatum Law Firm, by: Tom Tatum, for appellant.\nFrank H. Bailey and H. David Blair, for appellee." }, "file_name": "0098-01", "first_page_order": 126, "last_page_order": 132 }