Page:Aka v. Jefferson Hospital Association, Inc.pdf/21

Rh   photograph taken during Dr. Peretti's autopsy of Mrs. Aka. Dr. Peretti testified that at the time of his examination, he did not recall seeing any injury, tear, damage, separation, or laceration to the placenta. After being shown the photograph at issue, however, he acknowledged that a laceration was evident in the picture. Appellees objected to Dr. Peretti's testimony and to the photograph's admission on the basis of "surprise."

[25] The trial court granted appellees' motion to exclude both the photograph and Dr. Peretti's testimony, reasoning that the evidence would probably cause prejudice and was just "announced and discovered over the weekend or yesterday between [appellant and his counsel]." Significantly, the objectionable photograph was supplied to all parties prior to Dr. Peretti's testimony at trial. Given that the photograph was capable of authentication and previously supplied to all the parties, we conclude that the trial court abused its discretion by excluding the photograph. We cannot say that the danger of unfair prejudice outweighed the photograph's probative value. However, we agree that the trial court properly struck Dr. Peretti's testimony on the basis of surprise.

B. Exclusion of prior complaints
Appellant argues that he was prejudiced by the trial court's inconsistent rulings regarding the admission of witness testimony of prior complaints about the resident-training program's lack of faculty supervision. Although the trial court admitted the testimony of Nurse Gail Parker, it excluded the proffered testimony of Dr. Sterling Roaf, a local obstetrician, part-time consultant to the residency program, and the chairperson of JRMC's Credentials Committee.

Nurse Parker testified as to the complaints she knew of and that she had made personally, including complaints to Dr. Roaf. She expressed her concerns that the family-practice residents were not getting the necessary guidance from their supervisors and that nurses were left to call for help when the residents would not do so. Dr. Roars proffered testimony corroborated Nurse Parker's account. He offered detailed complaints that he had received, including allegations that residents were "doing things" they were not authorized to do and that they were not adequately supervised.

[26] Appellees objected to the testimony of both witnesses and succeeded in excluding Dr. Roafs on the basis of Ark. R. Evid. 403. When we review the trial court's decision to exclude Dr. Roaf's testimony, we note that in addition to demonstrating an