Adams by Ridgell v. Children's Mercy Hosp., WD

• Decision Date: 23 February 1993
• Docket Number: No. WD,WD
• Citation: 848 S.W.2d 535
• Parties: Nicole ADAMS, a minor by next Friend B. RIDGELL, Respondent-Appellant, v. The CHILDREN'S MERCY HOSPITAL, et al., Appellant-Respondent, and Jane Jelinek, M.D., Respondent. 44857.
• Court: Missouri Court of Appeals

Page 535

848 S.W.2d 535

Nicole ADAMS, a minor by next Friend B. RIDGELL, Respondent-Appellant, v. The CHILDREN'S MERCY HOSPITAL, et al., Appellant-Respondent and Jane Jelinek, M.D., Respondent.

No. WD 44857.

Missouri Court of Appeals Western District.

Feb. 23, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 30, 1993.

Timothy M. Aylward, Sally L. Thieman and Cynthia L. Dillard, Blackwell, Sanders, Matheny, Weary and Lombardi, Kansas City, for appellant-respondent Children's Mercy Hosp.

Reid Holbrook and Janet Simpson, Holbrook & Heaven, P.A., Kansas City, KS, for respondent Jane Jelinek, M.D.

Gary C. Robb and Anita P. Robb, Robb and Robb, Kansas City, for respondent-appellant Adams.

Before ULRICH, P.J., and SPINDEN and SMART, JJ.

SMART, Judge.

This medical malpractice action includes a claim of hospital negligence in failing to provide adequate advance notice of surgery assignments to anaesthesia residents. It also involves claims of vicarious liability for the actions of doctors and residents performing surgery at the hospital, claims of instructional error, and evidentiary questions. The plaintiffs and Children's Mercy Hospital both appeal from the judgment awarding Nicole Adams $3,082,518.16 in economic and non-economic damages, and awarding Julia Adams, Nicole's mother, $95,000.00 in non-economic damages. ¹

This action was brought on behalf of Nicole Adams, who was eight years old at the time of her injury, by her mother, Julia Adams. On March 25, 1988, Ms. Adams was cooking when Nicole accidentally hit the handle of one of the skillets, which spun off the stove, spilling hot grease on her. Ms. Adams took her daughter to Children's Mercy Hospital where she was instructed that her daughter would need skin grafting surgery for her burns. Surgery was scheduled for March 30, 1988. Nicole's skin grafting surgery was to be relatively routine and her burns were not major.

Dr. Ronald Sharp performed the skin grafting surgery on Nicole. During Nicole's surgery she received 7,000 cubic centimeters of crystalloid (a diluted salt water solution) from Dr. Jane Jelinek, ² who was on rotation to Children's Mercy Hospital to fulfill her residency requirements at the University of Kansas. Dr. Jelinek was supervised during a portion of the procedure by Dr. Robert Binda, and during another portion by Dr. Peter Mestad. For part of the procedure, neither Dr. Mestad nor Dr. Binda was present to lend supervision. It is undisputed that 7,000 cc's of crystalloid was in excess of the appropriate amount, causing substantial swelling of bodily tissue. Following the surgery, Dr. Mestad removed Nicole's breathing tube. About six minutes after the extubation, Nicole suffered cardiopulmonary arrest as a result of closure of her airway, due to swelling. When Dr. Mestad finally re-intubated Nicole, the tube was improperly placed, resulting in only one lung being ventilated. This series of events had tragic and irreversible consequences. Nicole is now severely brain damaged, blind, and neurologically impaired. After trial, the jury returned a verdict in favor of plaintiffs. The jury allocated 20% of the fault to the hospital; 18% to Dr. Jelinek; 2% to Dr. Sharp (the surgeon); and 50% and 10% respectively to Drs. Mestad and Binda, supervising anesthetists. After judgment was entered on the jury verdict, plaintiffs and the hospital both appealed, claiming trial court error. The Missouri Supreme Court resolved plaintiffs' constitutional challenges to portions of Chapter 538 RSMo, upholding the statutory scheme, including the non-economic damage caps, and transferred the case to this court for resolution of the remaining issues. Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992). This court will first address the points raised by the plaintiffs, and then the points raised by the hospital on appeal.

Amendment of Pleadings

Plaintiffs contend in their first point before this court that the trial court erred by admitting defendant's evidence of the fault of released parties Drs. Mestad, Binda and Powers. Plaintiffs claim that defendant failed to timely amend its pleading to add claims against Drs. Mestad, Binda and Powers as required by Missouri law, and defendant failed to timely supplement its answers to interrogatories identifying expert witnesses against these released parties.

At the pretrial conference on February 8, the trial court granted defendant leave to amend its answers to apportion fault and to supplement its interrogatory answers allowing defendant to call some of plaintiffs' expert witnesses, which plaintiffs had decided not to call. Plaintiffs now claim the amendments were severely prejudicial to their claim requiring them to substantially alter their proof at the last minute in order to prepare for the allegations in the amendments.

Plaintiffs correctly argue that comparative fault is an affirmative defense which must be pleaded. The reason for such a rule is to give notice to the opposing parties so they may adequately prepare the issues. Schimmel Fur Co. v. American Indem. Co., 440 S.W.2d 932, 939 (Mo.1969). Children's Mercy moved to amend its pleadings to enable it to apportion fault to the non-party physicians. Although allocation of fault to non-parties is generally not permitted, Chapter 538 permits allocation of fault to those who have already been released from liability by virtue of settlement. Section 538.230. The fault of the non-parties had already been extensively developed through deposition testimony. Plaintiffs' extensive discovery illustrated that they were adequately prepared on this issue. See C.B.C. Realty, Inc. v. Fisher, 621 S.W.2d 100, 103 (Mo.App.1981) (where the trial court held that it was not an abuse of discretion to allow party to file a second amended petition on the morning of trial). The amendment presented nothing new to plaintiffs.

Plaintiffs also claim they were prejudiced when the trial court allowed defendant hospital to amend answers to interrogatories allowing it to designate additional expert witnesses. Plaintiffs argue that they did not have time to adequately prepare for the witnesses. However, the witnesses that the hospital sought to add were originally designated as plaintiffs' expert witnesses. Plaintiffs' argument that they were somehow unprepared as to the testimony of these experts is unconvincing considering the extensive deposition testimony previously given by each witness.

Trial courts generally are liberal in allowing or disallowing parties to amend pleadings, and such a determination is "primarily within the sound judicial discretion of the trial judge, whose action will not be disturbed where ... there is no showing that such discretion has been palpably and obviously abused." Parsons Constr. Co. v. Mo. Pub. Serv., 425 S.W.2d 166, 174 (Mo.1968). The trial court did not abuse its discretion in allowing defendant's amendments because plaintiffs were not surprised or prejudiced by the amendments. This court finds no abuse of discretion on the trial court's part. Point is denied.

Periodic Payments Provision

Plaintiffs' other point on appeal is that the trial court erred by overruling plaintiffs' motion to modify the judgment in that the trial court did not properly determine periodic payments pursuant to § 538.220, RSMo 1986. That section dictates that past damages are presently due and payable, but that payments for future damages may be made in periodic installments. The trial court did not distinguish past damages from future damages, and instead applied the periodic payment provision to the entire award. This contention was not preserved in plaintiffs' motion for new trial, and plaintiffs have not offered guidance to either the trial court or this court as to how to determine the pro-rated amount of the past damages in view of the application of the non-economic damages caps. Nevertheless, because the case will be remanded on other grounds, the trial court is directed on remand to determine, after consideration of suggestions from counsel, a division of the award between past damages and future damages, if the court intends to provide for periodic payments.

Agency Relationship Between Dr. Jelinek and Children's Mercy

This court now turns to a consideration of the points on appeal asserted by Children's Mercy Hospital. The hospital contends that the trial court erred in overruling the hospital's motions for directed verdict with respect to the issue of Dr. Jelinek's agency relationship with the hospital. The hospital argues that plaintiffs failed to meet their burden of proof that Dr. Jelinek's actions were within the scope and course of any agency relationship with the hospital. The hospital contends that no agency agreement existed between Dr. Jelinek and Children's Mercy hospital, and that the hospital had no right to control the details of Dr. Jelinek's work.

Testimony presented by Dr. Binda, an anesthetist, revealed that there were six different departments in the hospital: surgery, anesthesiology, pediatrics, radiology, pathology, and dentistry. Dr. Binda testified that all the departments were components of the hospital and not separate entities. Dr. Binda also stated that although the Department of Anesthesiology at Children's Mercy consisted of a professional corporation known as Anesthesia Associates of Kansas City, Inc., the department did not operate as a separate professional corporation distinct from the hospital. Anesthesia Associates had a written contract with Children's Mercy Hospital which recited that the professional corporation was responsible for the Department of Anesthesiology at Children's Mercy. The contract also provided that "[t]he standards of medical practice and professional duties of Anesthesia Associates shall be determined by the Medical Staff of Children's Mercy." A second contractual relationship existed between "The University of Kansas College of Health Sciences and...