Doe v. Fisher

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

John Doe,       
Appellant,

v.

Courtney M. Fisher, M.D.,       
Respondent.

Appeal From Charleston County

Daniel  F.  Pieper, Circuit Court Judge

Unpublished Opinion No. 2003-UP-745

Heard November 6, 2003 – Filed December
17, 2003

AFFIRMED

Gary Lane Cartee, of N. Charleston,
for Appellant.

Elliott T. Halio, of Charleston, for Respondent.

BEATTY, J.:  Former patient sued his operating
physician for negligence in connection with a failed surgery.  The jury found
for the physician.  The patient appeals, arguing that the circuit court judge
erred in preventing him from making the closing argument that the physician
falsified the medical records.  We affirm. 

FACTS

John Doe had a PSA blood-screening test
for prostate cancer at his family health center.  Because the PSA level was
elevated, he was referred to Dr. Courtney Fisher, a urologist, for further evaluation. 
Doe’s medical records from the health center stated that Doe had complained
of “painful intercourse.” 

During their third visit, Fisher informed Doe that
Doe did not have prostate cancer, but the two discussed other problems Doe was
having. Fisher’s notes indicate that Doe was suffering from erectile dysfunction
and curvature of the penis. After their discussion, Fisher and Doe decided that
Doe would have penile implant surgery. Doe signed a release indicating that
he understood the nature and extent of the surgery to be performed. After the
surgery, Doe did not heal properly, the implant did not work, and Doe was rendered
completely impotent after the implant was removed. Doe sued Fisher for negligence. 

Doe testified at trial that he had had
an active sex life with his wife prior to the implant surgery. He denied ever
informing Fisher that he was impotent. Doe stated that he discussed occasional
premature ejaculation with Fisher and that he believed that the surgery was
necessary to correct that problem. Doe admitted signing a release form prior
to his surgery, but he claims that the form was blank when he signed it and
that the procedures to be performed were not listed on the document until after
it was signed. Doe claimed that he did not know what the surgery entailed and
that he would not have proceeded with the surgery had he been properly informed
of the risks. 

Fisher testified that Doe complained of impotence
at their consultation before they discussed the possibility of implant surgery.
Fisher stated that he informed Doe of the risks and complications associated
with implant surgery. Fisher testified at his deposition that he discussed using
Viagra with Doe prior to surgery, but admitted at trial that Viagra was not
available for public consumption in 1996. Fisher testified at trial that he
actually discussed Viagra-like drugs with Doe and misspoke when he used the
term “Viagra” in his deposition. Doe’s medical records in Fisher’s handwriting
were transcribed, and Doe submitted Fisher’s transcribed notes to the court. 
Fisher’s notes from tests performed on Doe described Doe’s symptoms as impotence
and an inability to achieve an erection. 

The jury found for Fisher. Doe appeals. 

STANDARD
OF REVIEW

On appeal in an action at law tried by a jury,
the jurisdiction of the appellate court extends merely to correction of errors
of law. Rogers v. Norfolk S. Corp., 343 S.C. 52, 59, 538 S.E.2d 664,
668 (Ct. App. 2001) (citing Townes Assocs. v. City of Greenville, 266
S.C. 81, 85, 221 S.E.2d 773, 775 (1976)).

I.  FALSIFICATION
CLAIM

Doe asserts that the trial judge erred by refusing
to allow him to argue in his closing that Fisher falsified Doe’s medical records.
We disagree. 

“It has long been settled that closing arguments
and objections thereto are left largely to the sound discretion of the trial
judge ‘who is on the scene and in much better position than an appellate court
to judge as to what is improper argument under the circumstances.’” Wall
v. Keels, 331 S.C. 310, 321, 501 S.E.2d 754, 760 (Ct. App. 1998)
(citing Howle v. PYA/Monarch, Inc., 288 S.C. 586, 599, 433 S.E.2d 157,
164 (Ct. App. 1986)).  Such decisions will not be disturbed “absent clear abuse
of discretion amounting to an error of law.” Carlyle v. Tuomey Hosp.,
305 S.C. 187, 192, 407 S.E.2d 630, 632 (1991) (citing Hofer v. St. Clair,
298 S.C. 503, 513, 381 S.E.2d 736, 742 (1989). Moreover, “[p]roof that an error
caused the appellant prejudice is a prerequisite to reversal based on error
where the trial court’s discretion is involved.” Id.

Doe maintains that the evidence supports his argument
that Fisher falsified the medical records because Fisher’s notes indicated that
Doe was impotent, while other medical records and Doe’s testimony contradicted
that assessment. The trial judge ruled that Doe was free to attack Fisher’s
credibility in the reply argument, but could not say to the jury that Fisher
had “knowingly testified falsely or altered records.” The trial judge explained
that Doe was “trying to interject issues at closing that [he] didn’t even raise
during the trial.”

Doe himself, without reservation or qualification,
introduced a typed copy of Fisher’s handwritten notes into evidence. Doe raised
no objection. Neither did Doe cross-examine Fisher about the possible falsification
of Doe’s medical records while Fisher was on the stand.  Thus, we cannot say
that the trial judge erred as a matter of law in excluding the falsification
claim.

Moreover, Doe has failed to demonstrate how the
exclusion of the falsification claim has harmed him. Admittedly, a plaintiff
has the right to respond in full in the reply closing, but he may not, in general,
introduce any new matter in that reply. Rule 43 (j), SCRCP. Here, Doe first
raised the falsification claim during his reply argument but in no apparent
response to Fisher’s closing. Doe contends that the trial court should have
allowed him to argue falsification to the jury because the evidence supported
the claim. Doe argues that (1) his testimony of an active sex life prior to
the surgery; (2) his testimony that he signed a blank consent form that did
not list correction of his curvature as a reason for surgery; (3) other medical
records indicating Doe was having intercourse; (4) the contradiction in Fisher’s
testimony at trial and his testimony at his deposition that he discussed Viagra
with Doe, all support the falsification claim. While all of this evidence contradicts
Fisher’s notes and testimony, it merely raises a question of credibility.

Because Doe first raised the falsification claim
during his reply argument and not earlier, and because Doe failed to show how
he was harmed, we decline to reverse the verdict. The trial judge did not abuse
his discretion in not allowing Doe to argue the falsification claim to the jury. 

II.  RECORD OF CLOSING ARGUMENTS

The trial transcripts did not contain the opening and
closing arguments of either party. Instead, there was a notation that both parties
had waived the recording of those portions. Doe admits that he waived the recording
of opening statements, but he does not recall waiving the recording of closing
statements.  He argues that despite the lack of an exact transcript of closing
arguments, the record is adequate for the determination of his issue on appeal. 
Doe requests that the Court remand the matter to be supplemented, should we
find that the record inadequate.

We agree that the record is adequate for
a determination of the issue on appeal.  The recorded bench conference fully
apprises us of Fisher’s objection to Doe’s reply closing, of the grounds for
the objection, and of the trial judge’s ruling on the objection. Doe does not
argue that his falsification claim was in response to anything Fisher argued
in closing arguments.  Therefore, it is not necessary to see a full transcript
of the closing arguments. This Court declines to remand the case for supplementation
since the record contains a full discussion of the issue. 

CONCLUSION

Based on the foregoing, the jury’s verdict
for Fisher is

AFFIRMED.

Goolsby and Huff, JJ., concur.