TERESA HARBOTTLE, individually and as Personal Representative of the Estate of JOHN F. HARBOTTLE III, deceased, Appellant,
KEVIN E. BRAUN, M.D. and JANE DOE BRAUN, and their marital community, Respondents.
Harbottle, III became Dr. Kevin Braun's patient. After
Harbottle passed away, his wife, individually and on behalf
of his estate (collectively Estate) filed a lawsuit for
medical negligence and failure to obtain informed consent.
The trial court granted summary judgment to Braun on the
informed consent claim. The medical negligence claim went to
trial and a jury found for Braun. The Estate appeals the
summary judgment order and the trial court's exclusion of
Braun's prior misconduct from evidence at trial.
Estate did not have a claim for failure to obtain informed
consent because Braun failed to diagnose Harbottle's
condition and did not know about it. When a doctor
misdiagnoses a patient's condition, and therefore is
unaware of an appropriate treatment, a claim for failure to
obtain informed consent does not arise. In addition, the
trial court did not abuse its discretion by excluding the
prior misconduct evidence. We affirm.
Harbottle first became Braun's medical patient in January
2010. In June 2011, Harbottle complained to Braun of
"chest burning" he had been experiencing for about
two months. Clerk's Papers (CP) at 263. At first, Braun
believed numerous potential causes for the chest burning
existed, including gastrointestinal and cardiovascular. Braun
performed a physical examination and determined the cause was
likely gastroesophageal reflux disorder (GERD).
ordered a number of tests for Harbottle, including an
electrocardiogram (EKG), a chest x-ray, and a stress test.
Braun's nurse performed the EKG on the same day as the
appointment. Braun and a cardiologist reviewed the EKG and
stated it did not suggest any problems with his
cardiovascular system. Another doctor stated the EKG signaled
the need for a stress test, but agreed the EKG alone was not
a reason to get a stress test. The x-ray came back as normal.
Braun referred Harbottle to a cardiologist to perform a
stress test, which would determine if the source of
Harbottle's pain involved cardiovascular issues.
prescribed a GERD medication. Braun and Harbottle scheduled a
follow-up visit for July to see whether the GERD medication
resolved Harbottle's symptoms and to review the results
of the diagnostic tests.
July follow-up appointment, Harbottle reported that his
symptoms had resolved. Braun felt he had identified the cause
of the chest pain as GERD. The GERD medication would not have
prevented coronary artery disease symptoms other than via
placebo effect. Braun did not believe a cardiovascular cause
of the pain was "ruled out," but thought it was
unlikely because the symptoms had resolved. CP at 266. Braun
did not follow up with Harbottle regarding the stress test,
as he believed the issue had been resolved through GERD
August, Harbottle saw Braun for unrelated issues. He noted
that Harbottle's heartburn was well treated by GERD
medication. A physical examination showed no abnormalities.
Neither Braun nor Harbottle mentioned the stress test. A
cardiologist later stated that Braun should have treated
Harbottle for elevated lipids and cholesterol at this visit.
point, Harbottle cancelled the stress test believing that
Braun had "pinpointed" the problem. CP at 267.
Braun did not tell Harbottle to cancel the test and did not
know why he did so. If Harbottle had followed through with
the stress test, the test would likely have been positive for
coronary artery disease. Braun stated, with regard to the
stress test, "I engaged in shared decision-making with
Mr. Harbottle, with regard to his options for additional
testing. At the time he elected a stress test, and it was
ordered, and the referral was completed, to the best of my
ability." CP at 274.
March 2012, Harbottle complained to Braun of shortness of
breath caused by exertion. After reviewing Harbottle's
symptoms, Braun prescribed him medication for asthma. Braun
did not believe the issues related to Harbottle's
cardiovascular system because Harbottle specifically denied
experiencing chest pain. Braun did not see Harbottle again.
following May, Harbottle died of cardiac arrest at the age of
53. An autopsy report noted his cause of death as
atherosclerotic heart disease.
January 2015, the Estate filed a complaint against Braun
alleging medical negligence and failure to obtain informed
consent, both of which proximately caused Harbottle's
death. Braun moved for summary judgment on the informed
consent claim, arguing that failure to diagnose a condition
is a matter of medical negligence but not informed consent.
The trial court granted Braun's motion, concluding that
no genuine issue of material fact existed.
Jerrold Glassman, a cardiologist, testified in a deposition
that every male patient with chest pressure consistent with
heart disease should be referred to a cardiologist for a
stress test. Glassman and Dr. Howard Miller, another expert
witness, believed that Harbottle suffered from two heart
disease risk factors: he was a male and he had a history of
elevated lipids. Glassman said that referral to a
cardiologist for a stress test would have been appropriate,
despite the results of the tests Braun performed and the
resolution of his symptoms via the GERD medication. Glassman
also stated he believed the failure to refer Harbottle to a
cardiologist led to his death. Miller stated Braun should
have followed up with the stress test to rule out coronary
artery disease, even though the GERD medication resolved
Harbottle's symptoms. Miller stated that the standard of
care should have required Braun to "rule out"
coronary artery disease with a stress test. CP at 330.
to the diagnostic process generally, Braun said,
"I'm not sure ruling out is ever what we do. What we
do is risk stratify and try and do a responsible history,
physical examination, data gathering, like labs and EKG, and
subsequent risk stratification as to how high a risk you have
rather than ruling out." CP at 274. Throughout his
deposition, Braun used terminology reflecting relative
likelihood that Braun suffered from various conditions. While
he refused to say he felt a cardiac cause was "ruled
out," he stated that after the GERD medication resolved
Harbottle's symptoms, that "what had been a very
unlikely potential cause of his symptoms was even less
likely, given that his symptoms had completely
resolved." CP at 266.
discovery, the Estate submitted an interrogatory asking
whether Braun had "ever been the subject an [sic]
allegation, claim, complaint, or lawsuit (including any civil
claims, criminal claims, and/or professional complaints)
alleging inappropriate conduct or improper and/or negligent
or substandard treatment." CP at 716. Braun responded,
"[o]ther than this case, no." CPat716.
Braun's subsequent deposition, the Estate asked why he
had left his job at a clinic in 2005. Braun said he left to
practice on his own and for more direct control over his care
and stated that his departure was "favorable." CP
at 275. He said he would "have to speculate"
whether the clinic would know of additional reasons for his
departure. CP at 275-76. Braun listed reasons he wanted to
leave the clinic, including complaints about the clinic staff
"among other things." CP at 276. When asked whether
he was subject to complaints during his time at the clinic,
Braun said "[t]here's always complaints" such
as by patients who didn't receive prescriptions they
wanted. CP at 276. When asked about other complaints, Braun
said he would "have to go back and look through"
but did not know what he would look through. CP at 276. Braun
maintained that his departure from the clinic had been
Estate subpoenaed Braun's employment file and various
other documents relating to his employment at the clinic,
including "any and all complaints, grievances, or
investigations, and the like pertaining" to Braun. CP at
590-91. Records produced by the clinic indicated that three
female patients had complained of inappropriate flirtatious
behavior and untoward touching. The clinic placed Braun on
administrative leave as a result of the complaints and
considered terminating his employment. Braun resigned five
Medical Quality Assurance Commission (MQAC) conducted an
investigation and described the allegations of misconduct in
detail. The MQAC case summary described three incidents
between 2003 and 2005 in which Braun allegedly
inappropriately touched and made sexual innuendo comments to
female patients. Braun denied any wrongdoing. The MQAC
dismissed the complaints and closed the file based on
insufficient evidence. It determined no disciplinary action
moved to exclude evidence of past grievances filed against
him, arguing they were irrelevant, overly prejudicial under
ER 403, and not germane to his treatment of Harbottle. The
Estate responded that Braun's professional misconduct and
untrustworthiness during discovery were "highly relevant
to his veracity" at trial. CP at 820.
arguments on the motion to exclude, the trial court stated
that "[t]here would never, in this case, be a reveal to
the jury as to what the underlying issues were, sexual
misconduct, there'd be no way that I would allow that
in," as it would be "way too prejudicial."
Report of Proceedings (RP) (Sept. 8, 2017) at 26. The
Estate's attorney agreed. The court said it was concerned
that the facts of the underlying misconduct were "so
prejudicial that [it was] concerned about whether it takes
over the case as opposed to what needs to be the issue, which
is did he violate the standard of care." RP (Sept. 8,
2017) at 27-28. The parties primarily argued about whether
the Estate could impeach Braun's credibility with his
dishonest discovery responses. The court granted Braun's
motion to exclude.
trial, the jury returned a verdict for Braun on the medical
negligence claim and the trial court entered judgment for
Braun. The Estate appeals, arguing the court erred by
granting summary judgment on the informed consent claim and
excluding evidence of Braun's prior instances of