THE STATE OF SOUTH CAROLINA
In The Court of Appeals
John Doe, Appellant,
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Unpublished Opinion No. 2003-UP-745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
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.
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.
Based on the foregoing, the jury’s verdict for Fisher is
Goolsby and Huff, JJ., concur.