Anderson v. Weinsweig , 34 F. App'x 916 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CONSTANCE ANDERSON; STEPHEN D. 
PIGG,
Plaintiffs-Appellants,
v.
DAVID L. WEINSWEIG, M.D.; TRI-
STATE NEUROSCIENCE CENTER,
INCORPORATED,
Defendants-Appellees,
 No. 01-1918
and
CABELL HUNTINGTON HOSPITAL,
INCORPORATED; STEPHEN L. WILSON,
M.D.; HUNTINGTON SURGICAL
ASSOCIATES, INCORPORATED; VENKATA
RAMAN, M.D.; MARCIA BOYD, a/k/a
Marcia Doe, R.N.,
Defendants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CA-99-166-3)
Argued: April 3, 2002
Decided: May 14, 2002
Before WILKINS and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 ANDERSON v. WEINSWEIG
COUNSEL
ARGUED: John Henry Metz, Cincinnati, Ohio, for Appellants. Fred
B. Westfall, Jr., FLAHERTY, SENSABAUGH & BONASSO,
P.L.L.C., Charleston, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Constance Anderson appeals a judgment in favor of Dr. David L.
Weinsweig in her medical malpractice suit.* She contends that the
district court erred in allowing Weinsweig to impeach her expert wit-
ness, Dr. Donald Austin, with findings by the American Association
of Neurological Surgeons (AANS) concerning alleged defects in Aus-
tin’s expert testimony in another case. We affirm.
I.
In 1997, Anderson checked into a hospital for treatment of severe
headaches. After two weeks of testing and observation, a medical
team headed by Weinsweig determined that Anderson needed brain
surgery. On March 3, 1997, Weinsweig arranged to perform this sur-
gery on March 5.
On March 4, Anderson began experiencing problems with her right
foot. The problems persisted overnight; when Anderson arrived at the
operating room the next morning, her foot was swollen and no pulse
*Several other parties were involved in this litigation in the district
court, and two of them are also parties to this appeal. For convenience,
we will refer to the Appellants as "Anderson" and the Appellees as
"Weinsweig."
ANDERSON v. WEINSWEIG 3
could be detected. Although Weinsweig was aware of these problems,
and although treatment of peripheral vasculature is outside his area of
expertise, he did not request advice from a vascular specialist.
Instead, he determined for himself that the problems arose from con-
stricted blood flow; that this constriction could not be treated without
administering blood thinners; that these blood thinners, combined
with inevitable delays in performing the brain surgery, might exacer-
bate the problems in Anderson’s brain; and that it was therefore
appropriate to proceed with the brain surgery even though doing so
might have adverse consequences for Anderson’s foot. Accordingly,
Weinsweig performed the brain surgery as scheduled.
The surgery was successful in treating Anderson’s headaches. It
was not possible to attend to Anderson’s foot for a few days after the
operation, however. As a result of this delay in treatment, two of
Anderson’s toes were amputated.
Anderson sued Weinsweig for malpractice, alleging that he should
have consulted a specialist for her foot before operating on her brain.
She supported this claim at trial with expert testimony from Dr. Aus-
tin. On cross-examination, Weinsweig’s counsel questioned Austin
about a six-month suspension Austin received from the AANS. This
questioning included references to specific findings regarding Aus-
tin’s testimony in another malpractice case, including findings that
Austin had violated AANS ethical standards by not preparing ade-
quately before testifying. Anderson objected to questions incorporat-
ing AANS findings, but these objections were overruled. Austin then
admitted that the AANS had made such findings but asserted that they
were false and that the real motivation for the AANS sanction was to
punish him for testifying against another neurosurgeon.
The jury returned a verdict in favor of Weinsweig. After the district
court denied Anderson’s post-trial motions, Anderson initiated this
appeal.
II.
Anderson’s primary claim is that the district court erred in permit-
ting Weinsweig to introduce evidence of the AANS findings against
Austin. We hold that there was no error warranting reversal.
4 ANDERSON v. WEINSWEIG
Anderson initially asserts that it violates public policy to allow pro-
fessional organizations to discipline members who provide expert tes-
timony against other members. According to Anderson, such
disciplinary actions deter professionals from testifying against their
colleagues. We decline to consider this argument; if the problem
described by Anderson exists, it should be solved legislatively, not
judicially.
The question that remains is whether evidence of findings by the
AANS was properly admitted under the Federal Rules of Evidence.
We need not resolve this question because we hold that, even if the
evidence was inadmissible, the error was harmless.
In a civil case, an error will be deemed harmless if the appellate
court can "say with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the judg-
ment was not substantially swayed by the error[s]." Taylor v. Va.
Union Univ., 193 F.3d 219, 235 (4th Cir. 1999) (en banc) (alteration
in original) (internal quotation marks omitted). This standard is met
here. It was undisputed at trial that there were risks inherent in either
performing the surgery immediately or postponing the surgery to con-
sult a vascular specialist, that Weinsweig was aware of these risks,
and that he made the choice that he believed would have the greatest
benefits for Anderson. This left very little room for liability; in
essence, Anderson was required to show that Weinsweig should have
requested a vascular consult even though he already had a basic
understanding of the situation and delaying the surgery might have
resulted in death or severe brain damage. Introduction of the AANS
findings did not significantly impair Anderson’s ability to make this
showing because Austin effectively "impeached" the findings by
accusing the AANS of punishing doctors who assist malpractice
plaintiffs. By contrast, far more damage was inflicted through skilled
cross-examination of Austin (on issues unrelated to the AANS find-
ings) and through the forceful testimony of Weinsweig and his expert
witness. We therefore conclude that the introduction of the AANS
findings did not "substantially sway[ ]" the judgment.
III.
For the foregoing reasons, we hold that the introduction of AANS
findings during cross-examination of Dr. Austin was, at worst, harm-
ANDERSON v. WEINSWEIG 5
less error. In addition, having reviewed the briefs and the joint appen-
dix and having had the benefit of oral argument, we hold that
Anderson’s remaining claims do not warrant relief. We therefore
affirm the judgment of the district court.
AFFIRMED