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Hicks v. Zondag

Supreme Court of Wyoming

January 28, 2014

Mark S. HICKS, administrator and personal representative of the ESTATE OF Johnna R. HICKS, Appellant (Plaintiff)
Tuenis D. ZONDAG, M.D., and Central Wyoming Neurosurgery, LLC, Appellees (Defendants).

Representing Appellant: Laurence W. Stinson, Stinson Law Group, P.C., Cody, Wyoming.

Representing Appellees: Jeffrey C. Brinkerhoff, Brinkerhoff Law, Jeffrey C. Brinkerhoff, P.C., Casper, Wyoming.

Before KITE, C.J., and HILL, VOIGT,[*]BURKE, and DAVIS, JJ.

Page 607

DAVIS, Justice.

[¶ 1] The estate of Johnna Hicks sued Dr. Tuenis Zondag for negligently causing Mrs. Hicks' death while he was treating her for severe chronic pain. It also claimed that the doctor's employer, Central Wyoming Neurosurgery, LLC, should be held vicariously liable for his claimed negligence in causing her death. After a nine-day trial, a Natrona County jury found that Zondag was not negligent in his treatment of Hicks and returned a defense verdict. In its timely appeal from the judgment entered on that verdict, the estate poses one question: Did the district court commit reversible error by permitting Zondag and his codefendant to introduce the testimony of two expert witnesses on the doctor's adherence to the appropriate standard of care for practitioners of pain medicine? We affirm.


[¶ 2] Although Appellant characterizes the district court's decision as one involving an abuse of discretion, we believe this appeal is appropriately resolved by answering the following question:

Did Appellant waive objections to cumulative testimony under Wyoming Rule of Evidence 403 by failing to object at trial after the district court denied a motion in limine on that basis?


[¶ 3] Between 2000 and 2006, Mrs. Hicks was plagued by a variety of abdominal ailments, a number of which required surgical intervention. Her primary care physician documented problems with kidney stones, gallstones, appendicitis, colonic obstructions, uterine cysts, and a hysterectomy, many of which were complicated by infections and accompanied by adhesions. During that period she was frequently prescribed opioid analgesics, including Demerol, oxycodone, hydrocodone, and morphine. That mode of treatment became constant as Mrs. Hicks continued to suffer from severe chronic pain in her upper right abdomen. Testing and referrals to specialists proved unsuccessful in uncovering or treating the source of the pain, and she eventually began to experience depression as persistent as her pain. For that condition, her primary care physician prescribed the antidepressant fluoxetine, which is more commonly known by the brand name Prozac.

[¶ 4] Eventually her primary care physician referred Mrs. Hicks to Dr. Zondag, who first met with her on July 20, 2006. Dr. Zondag is board-certified in family medicine, but he maintains a practice that is focused on occupational medicine and also involves pain management. He first referred Mrs. Hicks to a urologist and gastroenterologist and then to a psychologist to obtain an evaluation of her depression. No likely urological, gastrointestinal, or spinal problem could be identified as the source of her pain. Zondag briefly treated her with oxycodone as previous providers had done until she began to experience episodes of both extreme pain and gastric difficulties caused by the oral analgesics. He then began prescribing Actiq.

[¶ 5] Actiq is an ultra-fast-acting form of the opioid fentanyl. It is used to treat the rapid onset of acute intense pain in patients who are already being treated for chronic pain with more common opioids. Originally designed and FDA-approved for cancer patients, it is extremely powerful and is prescribed in dosages measured in micrograms rather than in milligrams. The rapid onset of its analgesic effect is in large part due to the fact that it is administered transmucosally— that is, it is absorbed through the membrane on the inside of the cheek by placing a lozenge on a stick between the patient's cheek and gum. Approximately one-quarter of the drug in an Actiq " lollipop" is delivered in that fashion. Of the remaining three-quarters that are swallowed, only one-quarter is available for pain relief. The rest is absorbed by internal organs and quickly loses its potency.

Page 608

[¶ 6] Dr. Zondag prescribed 800 mcg. Actiq " suckers" and instructed Mrs. Hicks to use half of one at the onset of severe pain and to use the remainder only if the half dosage did not work. For nearly a year she obtained relief by using one-half to a full lollipop per day along with either oxycodone or hydrocodone. A laparoscopic appendectomy during that period did not relieve her chronic pain, and Dr. Zondag began to suspect that her pain was neuropathic, perhaps resulting from nerve damage from a 2005 surgical procedure. Accordingly, he tried a series of nerve root block injections that provided some relief for periods ranging from two to five months. During those periods, ...

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