Circuit Judge Daniel Stack

Richard Hunsaker

Mary Jo Kuca

Attorney Morris Chapman is asking Circuit Judge Daniel Stack for a new trial in a medical malpractice case he lost in May claiming his clients were deprived of a fair trial.

Chapman says the attorneys for Troy family doctor Dolores Cantrell, M.D., the defendant, violated Supreme Court Rule 213 regarding written interrogatories. Stack "erroneously overruled" plaintiffs' questions and then allowed defense counsel to use the questions to elicit testimony on direct from his expert witnesses, Chapman claims.

"To allow either side to ignore the plain language of Rule 213 defeats its purpose and encourages tactical gamesmanship," Chapman's motion states.

The estate of William Hoppe II filed suit against Cantrell on Feb. 27, 2004, claiming she misdiagnosed Hoppe's unstable angina on July 18, 2003, which caused his death the next day.

On May 11, after a nine-day trial, a Madison County jury delivered a defense verdict ruling that Cantrell met the standard of care in treating Hoppe.

The jury deliberated nearly four hours after hearing three hours of closing arguments earlier in the day.

Hoppe's estate claimed that Cantrell failed to adequately and promptly treat the angina and failed to send him to a cardiologist for immediate help.

Chapman claims that during trial he presented substantial evidence, "much more probable than not," that Cantrell failed to follow standard of care established guidelines for evaluation of acute coronary syndrome (ACS).

Chapman contends that the question before the court and the jury was which group of health care providers apply these standards.

He claims American College of Cardiology (ACC) 2002 guidelines outline the standard of care for the treatment of ACS.

At trial, defense attorney Richard Hunsaker of Heyl Royster, told the jury during opening arguments that Cantrell did meet the standard of care and that his expert witnesses would also tell them the same story.

William Hoppe was seen by Cantrell on July 18, 2003, with chest pains, elbow pain, sweating and shortness of breath.

According to Hunsaker, Cantrell ordered an EKG on the spot, which came back normal and then scheduled a stress test, urine test, lipid profile, CBC, Chem 12, and ultra-sound and x-rays for the next week at a local hospital.

William Hoppe never made the appointment, according to the testimony of his son, William Hoppe III, age 19. He said he found his father on the bathroom floor the next morning and called 911, but that it was too late, his father had already died.

Chapman claims Cantrell did not have an opinion at the time of her interrogatories about the 2002 ACC guidelines, but at trial she had an opinion.

"During the re-direct examination of the defendant, defense counsel elicited a new opinion that the American College of Cardiology article or the ACC guidelines had not been adopted by the American Academy of Family Practitioners," Chapman wrote.

"The opinion was elicited after the court overruled plaintiff's Rule 213 objection to the question when it was first posed," Chapman added.

Chapman claims Stack's ruling was in error and warrants a new trial.

He claims he prepared his case relying on Cantrell's disclosures in her interrogatories.

"However, defense counsel improperly elicited the undisclosed opinion over plaintiff's objection," Chapman wrote.

"When the defendant testified in her deposition that she never saw the ACC guidelines before, logically it follows that she could not have had an opinion one way or another as to whether or not those guidelines had been adopted by the Academy," he wrote.

"The testimony was not a permissible elaboration or logical extension of any previously disclosed opinion of this expert and instead constituted an improper undisclosed opinion."

Chapman claims his clients were prejudiced when Cantrell commented on the ACC guidelines during trial.

"The opinion rested at the heart of the plaintiffs' case; and no other defense expert could state affirmatively, as did the defendant, an opinion that the ACC guidelines had not been adopted by the Academy," Chapman wrote.

Chapman claims defense expert, Benico Barzilai, M.D., a cardiologist, testified that he "did not believe" the ACC guidelines were endorsed by the American Academy of Family Practitioners.

Chapman concedes that even though Barzilai testified within a reasonable degree of medical certainty and cardiology certainty that the ACC guidelines did not apply in the case with respect to the standard of care, Dr. Barzilai also testified that he never practiced family medicine and that the standard of care is not the same for all first responder health care providers.

"Plaintiffs were prejudiced because the defendant doctor- the last witness and, really, the most important defense witness-was allowed to give the most important opinion in the case that the ACC 2002 guidelines did not apply to family practice," Chapman wrote.

Chapman contends there was no other competent testimony or opinion in support of Cantrell's opinion and the evidence shows that Cantrell did not follow the ACC guidelines in this case resulting in Hoppe's death.

"Cantrell's opinion about the ACC guidelines surprised plaintiffs, and plaintiffs timely objected to its admission for consideration by the jury," he wrote.

Chapman and his co-counsel Rocco Marrese claim Stack also allowed Hunsaker to use leading questions on direct examination that was highly prejudicial to their case.

Cantrell also was represented by Mary Jo Kuca of Heyl Royster.

"Throughout the direct examination of defendant's expert witnesses, defense counsel improperly used leading questions to elicit testimony from his own witnesses," Chapman wrote.

Chapman claims Stack "uniformly overruled" objections.

He claims the following were leading questions asked by Hunsaker:

  • "So if you were to look at this case and felt that there was a deviation of the standard of care would you have told me?"

  • "Did we put any parameter on your review of this case? In other words, did we tell you this is the opinion we need or we want you to stay away from this opinion?"

  • Now in this case would you have told us if you had concluded that Dr. Cantrell violated the standard of care?"

    "The repeated use of leading questions on issues in controversy and the over-ruling of plaintiffs' counsel objections allowed defense counsel to feed the answers to his witness," Chapman claims.

    "The repeated overruling of plaintiffs objections grossly interfered with counsel's ability to controvert the defense within the rules."

    Chapman claims that the expert witnesses for the defense never testified within the rules of direct examination that Cantrell met the standard of care.

    "This and any court had broad discretion to overrule objections to leading questions," Chapman wrote. "However, the use of leading questions to completely lay-out the defense case was so pervasive that it deprived plaintiffs' of a fair trial."

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