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Khokha v. Shahin

June 22, 2009

INDER V. KHOKHA, PLAINTIFF, APPELLANT AND CROSS-APPELLEE
v.
SALEM S. SHAHIN, AND SALEM S. SHAHIN, M.D., P.C., A NORTH DAKOTA PROFESSIONAL CORPORATION, DEFENDANTS, APPELLEES CROSS-APPELLANTS



Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Gary H. Lee, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

AFFIRMED.

[¶1] Dr. Inder V. Khokha appealed and Dr. Salem S. Shahin and Salem S. Shahin, M.D., P.C., a North Dakota Professional Corporation, cross- appealed from a judgment dismissing Khokha's defamation action against Shahin after a jury found statements made by Shahin to a patient's family did not defame Khokha. We hold the district court did not abuse its discretion in its evidentiary rulings and did not err in instructing the jury on qualified privilege. We affirm.

I.

[¶2] Shahin is a urologist who has practiced independently in Williston for nearly 30 years. Khokha is a general surgeon with vascular training specializing in surgery on blood vessels. Khokha had been a surgeon for nearly 25 years when he was recruited to Mercy Medical Center in Williston in October 2003 under an employment contract with the hospital. At the time, Williston had two other surgeons, but neither of those surgeons had training in vascular surgery, and a community need profile projected that Williston could support three surgeons. Shahin agreed to proctor and provide a written evaluation for Khokha's first ten surgeries at Mercy Medical Center, and according to the hospital president, there were "no issues or concerns identified" by Shahin during that period, which was completed within three months after Khokha arrived in Williston in October 2003.

[¶3] Rosie Chamley had been Shahin's patient for more than 20 years, and during that time, Shahin had performed five operations on her kidneys, including four percutaneous procedures to remove kidney stones. Shahin described a percutaneous procedure as a surgical procedure in which no incision is made; rather, a needle with a guide wire, a sheath, and a nephroscope are inserted through the skin into the kidney to remove the kidney stones. Shahin explained that after the kidney stones are removed, a catheter is inserted into the hole in the kidney to drain into a bag outside the body.

[¶4] On February 2, 2004, Shahin admitted Chamley to Mercy Medical Center for a percutaneous procedure to remove kidney stones from her right kidney. Following the percutaneous procedure, Chamley experienced excessive bleeding from the catheter, and she was returned to the operating room to stop the bleeding. Dr. Wayne Anderson initially assisted Shahin in attempting to control Chamley's bleeding with a second surgical procedure requiring an incision. According to Shahin, he tried to suture the hole in the kidney where the catheter had been located, but Chamley's condition deteriorated, and he eventually decided to remove her kidney. Because of scar tissue around Chamley's kidney and blood vessels, Shahin asked Khokha, who was waiting in the doctors' lounge to perform a scheduled surgery on another patient, to help remove the kidney. After Chamley's kidney was removed, it was discovered that her vena cava was torn and was bleeding. Khokha repaired the vena cava with a graft. Chamley's condition stabilized, and she was sent to the recovery room, but the following day she was transferred to a Bismarck hospital where she later died from complications from bleeding.

[¶5] After Chamley died, her family contacted Shahin on February 15, 2004, with questions about the surgical procedures, and he met with the family at his home that evening to explain the procedures to them. Accordingly to Khokha, Shahin falsely told the family that Khokha "ripped and tore the kidney out," and he "grabbed ahold of the kidney and just pulled it out . . . without severing any vessels, without cutting anything just pulled it out." However, Shahin claimed he told the family that Chamley's vena cava was ripped or torn while Khokha removed the kidney. According to Khokha, Shahin tore Chamley's vena cava while applying a surgical clamp to the area near the kidney before Khokha entered the operating room.

[¶6] In April 2004, Shahin talked with the Chamley family's attorneys by telephone, and in October 2004, Shahin provided the attorneys with a sworn statement about the surgery. In February 2005, Chamley's family sued Khokha for malpractice, alleging Khokha "was careless and negligent in the manner in which he performed the dissection of Rosie Chamley's kidney in that . . . he negligently ripped and tore the vena cava and failed to appropriately suture, graft, and repair the vena cava." Chamley's family later added Shahin as a defendant in that lawsuit. See Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864.

[¶7] While defending the Chamley family's malpractice action against him, Khokha learned that Shahin had discussed the surgical procedures with the family on February 15, 2004, and had given a sworn statement to the family's attorneys in October 2004. Khokha sued Shahin and his professional corporation for defamation, alleging Shahin made false statements to Chamley's family about the quality of Khokha's surgical assistance. Khokha alleged that in February 2004, Shahin falsely told Chamley's family that Khokha had "pulled, ripped, and tore . . . Chamley's right kidney out of her and part of the vena cava came out with the kidney and was torn and ragged." Shahin denied making any false and defamatory statements to Chamley's family.

[¶8] At trial, Khokha presented evidence that Chamley's kidney was not ripped or torn out of her body in the manner that Shahin allegedly described to Chamley's family and that Khokha was harmed as a result of Shahin's defamatory statements to the family. Khokha also presented evidence that his surgical practice became stagnant after Chamley's death and Mercy Medical Center terminated his employment contract in March 2006 because of "declining volumes." Shahin presented evidence to support his explanation that Khokha tore Chamley's vena cava when Khokha removed the kidney and that Khokha's reputation was not harmed as a result of Shahin's statements to the family. As relevant to the issues in this appeal, the jury also heard evidence that Khokha was arrested for DUI in February 2005; that he had a bad result in a surgical procedure on a young boy in November 2003; and that his surgical practice was subject to high rates of complications. The district court decided Shahin's statements to Chamley's family on February 15, 2004, were subject to a qualified privilege, and the jury returned a special verdict, finding those statements were not defamatory.

II.

[¶9] Khokha argues the jury verdict is perverse and contrary to the evidence, because the jury was misled and improperly influenced by irrelevant and inadmissible evidence about his reputation. He argues Shahin incontrovertibly made false statements to Chamley's family and the verdict can only be explained by irrelevant, inadmissible, and substantially prejudicial evidence that Shahin did not harm Khokha's reputation, because Khokha was "a surgeon with an alcohol problem" who had "extremely bad results" and "higher complication rates," whose practice was the subject of "complaints" and an "investigation" and who left Williston because of an "unresolved DUI." Khokha argues that reputation evidence was not admissible because it did not relate to the aspect of his reputation that was defamed and the evidence did not pertain to a reputation that was generally known in the community before Shahin made the defamatory statements. Khokha claims inadmissible reputation evidence tainted the trial and affected his substantial rights. Shahin responds that this Court cannot review Khokha's request for a new trial, because he failed to move for a new trial or for judgment as a matter of law in the district court. Shahin further argues substantial evidence supports the verdict and the district court did not abuse its discretion in ruling on the admissibility of reputation evidence.

[¶10] Although Khokha's arguments implicate the sufficiency of the evidence, they are made in the context of his arguments about the admissibility of reputation evidence and the effect of that evidence on the verdict and his substantial rights. We therefore consider his arguments in the context of the admissibility of the reputation evidence.

[¶11] In Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶¶ 40, 42, 689 N.W.2d 366 (citations omitted), we described standards for the admissibility of reputation evidence in the context of a defamation action and the effect of the evidence on the substantial rights of the parties:

A district court has broad discretion on evidentiary matters, and we will not overturn its admission or exclusion of evidence on appeal unless that discretion has been abused. Under N.D.R.Civ.P. 61, "[n]o error in either the admission or the exclusion of evidence . . . is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice." See also N.D.R.Ev. 103(a) (providing "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected").

Because the "gravamen of the tort of defamation is the injury to the plaintiff's reputation," evidence of a plaintiff's general bad reputation or bad character is admissible in a defamation action. However, specific instances of a plaintiff's conduct or a plaintiff's particular character traits are not relevant unless they were generally known by others in the community. Moreover, reputation evidence is permissible only if it affects the aspects of reputation that were defamed.

[¶12] Khokha claims evidence that he was arrested for DUI in 2005 had no relationship to his reputation as a vascular surgeon. He asserts there was no evidence that he had an alcohol problem, or that the 2005 DUI had any role in him leaving Williston, and the admission of that evidence prejudiced him.

[¶13] During opening statements to the jury, Shahin said:

Dr. Khokha is going to bring in an expert that is going to claim he was damaged in the amount of $800,000 because he didn't develop a practice here and had to leave here and go to Jamestown and he is going to blame that on Dr. Shahin. There is going to be evidence that that isn't the only reason-that isn't in my opinion the reason why Dr. Khokha left the town of Williston. In February of 2005 Dr. Khokha was arrested for DUI. And that DUI remained open, nothing was done about it until after Dr. Khokha had already been advised that he was-had to leave Williston because in fact he wasn't producing. He started out being paid $300,000 by Williston to be here as a vascular surgeon. That didn't work out. He had to leave here and go to Jamestown. And it isn't because of anything Dr. Shahin did that Dr. Khokha had to leave Williston. That will be our position on that.

[¶14] At trial, Khokha attributed the decline in his surgical practice and his termination from Mercy Medical Center to Shahin's February 2004 statements to Chamley's family. According to Khokha, he began looking for a new job the summer after his February 2005 DUI arrest. Nearly one year later, in March 2006, Mercy Medical Center informed Khokha that his contract with the hospital would terminate because of his lack of surgical volume. Shahin argued Khokha's February 2005 DUI arrest could have impacted his decision to leave Mercy Medical Center and also could have contributed to the decrease in his production as a surgeon. The district court ruled that Shahin could question Khokha about his DUI arrest for the limited purpose of determining how it impacted his decision to leave Williston. On this record, we conclude the district court did not abuse its discretion in ruling that Shahin could present limited evidence that Khokha's decline in surgical production could have been caused by something other than Shahin's statements to Chamley's family and that Khokha's decision to leave Williston was influenced by his DUI arrest.

[¶15] Khokha nevertheless asserts Shahin misled the district court because Shahin repeatedly told the court the DUI arrest was relevant to damages and to the reason Khokha left Williston, but Shahin asked Khokha:

Q: [Mr. Durick] Do you think an incident such as [the DUI arrest] would have an effect on people in the community whether or not they want to go to you as a surgeon?

MR. SCHREINER: Objection, Your Honor.

THE COURT: Basis.

MR. SCHREINER: Be speculation, I guess.

THE COURT: Overruled. You may answer, Doctor.

THE WITNESS: Whether-actually I really don't know an answer to that question because for the simple reason-and it wasn't as if I was drunk in the operating room or anything like that. I was upset about quite a few things which were going on in my life and I overdid it and I-I was smoking very heavily at that time and I-the only thing I did that night was that I ran out of cigarettes and I drove over to pick up a pack of cigarettes. On my way back, 20 yards away from my home I got stopped.

MR. DURICK: And I'm not arguing-

THE WITNESS: No, I'm giving you the facts. That's the way it happened.

BY MR. DURICK: (Continuing)

Q: And the facts are, though, that somebody that sees their surgeon with alcohol-with a problem with alcohol, it doesn't do your reputation any good as far as people coming to you in the community?

A: My practice wasn't really going very well at that time. This was in February of 2005. As far as I remember it happened after I was served papers for Chamley lawsuit.

[¶16] Khokha did not object to those questions on the grounds now asserted on appeal, nor did he request a curative or limiting instruction. A party must make a specific objection to evidence when it is offered for admission to give the opposing party an opportunity to argue the objection and to cure any claimed deficiencies, and to give the trial court an opportunity to appropriately rule on the admissibility of the evidence. May v. Sprynczynatyk, 2005 ND 76, ¶ 26, 695 N.W.2d 196. A party must object when the alleged error occurs so the trial court may take appropriate action, if possible, to remedy any prejudice that may have resulted. Id. at ¶ 25. To the extent Khokha argues that Shahin misled the district court about the admissibility of the DUI evidence, we conclude Khokha's failure to further object when that testimony was admitted constitutes a waiver of that argument. We conclude the district court did not abuse its discretion in its ruling on the admissibility of Khokha's 2005 DUI arrest.

[¶17] Khokha argues the district court erred in admitting evidence that he had a bad result in a surgery involving a young boy. The district court decided the parent of that young boy could not testify, because Shahin had not disclosed the parent during discovery. During Shahin's opening statement to the jury, counsel said:

MR. DURICK: . . . There has been an allegation as you heard that Dr. Khokha's reputation has been injured. It is not my intention to stand up and try to run somebody down but I have to defend a client and there has been a suggestion that Dr. Khokha's reputation has been injured so I have to go out and look at what Dr. Khokha's reputation was at this point in time. There is going to be evidence to that effect. Dr. Khokha came to Williston to be a vascular surgeon in October of 2003. Within a month after Dr. Khokha arrived he was called into the ...


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