Barr v. Plastic Surgery Consultants, Ltd.

• Citation: 760 S.W.2d 585
• Decision Date: 15 November 1988
• Docket Number: No. 53572,53572
• Parties: Joyce BARR, Appellant/Cross-Respondent, v. PLASTIC SURGERY CONSULTANTS, LTD. and Boatmen's National Bank, Personal Representative of the Estate of Dr. Bart Lissner, M.D., Respondent/Cross- Appellant.
• Court: Missouri Court of Appeals

Page 585

760 S.W.2d 585

Joyce BARR, Appellant/Cross-Respondent, v. PLASTIC SURGERY CONSULTANTS, LTD. and Boatmen's National

Bank, Personal Representative of the Estate of Dr.

Bart Lissner, M.D., Respondent/Cross- Appellant.

No. 53572.

Missouri Court of Appeals,

Eastern District,

Division Three.

Nov. 15, 1988.

Isaac Ernest Young, Maplewood, William M. Wunderlich, High Ridge, for appellant/cross-respondent.

Roberta Rene Hogan, St. Louis, for respondent/cross-appellant.

DOWD, Presiding Judge.

This is a consolidated appeal from a jury verdict in a suit claiming medical malpractice in favor of plaintiff, Joyce Barr, for $75,000. We deny the points raised in both the appeal and cross-appeal and affirm the judgment of the trial court.

Appellant, Joyce Barr (hereinafter plaintiff), consulted with Dr. Bart Lissner, M.D., now deceased, in reference to a desire for breast reduction surgery in November of 1982. She was concerned about the weight of her chest creating a strain on her back and also wanting to improve her appearance. Dr. Lissner diagnosed plaintiff as having bilateral mammary-hyperplasia. ¹

Plaintiff was later admitted to the hospital and Dr. Lissner performed breast reduction surgery on December 10, 1982. Following the surgery, plaintiff examined herself and concluded she was flat chested. Dr. Lissner then performed a second surgery injecting implants into plaintiff's breast area.

Plaintiff brought suit for medical malpractice in the St. Louis City Circuit Court against Plastic Surgery Consultants, Limited and Boatmen's National Bank, as personal representative for the estate of Dr. Lissner (hereinafter defendants). The damages plaintiff seeks stem from an aggravation of a pre-existing illness and for disfigurement.

The jury awarded her $75,000 upon which the trial court entered a judgment. Plaintiff now appeals this judgment claiming the improper exclusion of evidence of other suits filed against Dr. Lissner was error and also that the verdict was grossly inadequate in view of the exclusion of this evidence.

Defendants' cross-appeal raises four points. First, that the plaintiff failed to make a submissible case. Second, that the judgment should be reversed and remanded to dismiss since the St. Louis City Circuit Court did not have proper venue. Third, that the trial court erred in permitting plaintiff to introduce certain evidence that is irrelevant and immaterial to any issue submitted to the jury. Finally, that the trial court erred in allowing a future damage instruction be submitted to the jury where there was no evidence of future damage. We deny all points and affirm the judgment of the trial court.

Plaintiff's first point on appeal contends that the trial court erred by excluding evidence of seven other lawsuits against defendants as irrelevant and immaterial. We disagree.

The decision to admit or exclude evidence rests within the broad discretion of the trial court. Karashin v. Haggard Hauling and Rigging, Inc., 653 S.W.2d 203, 205 (Mo. banc 1983). Plaintiff's assertion of relevancy is two pronged. First, that such evidence is relevant to the issue of whether Dr. Lissner was incompetent, and second, whether defendant Plastics Surgery Consultants, Limited and/or its directors, officers and employees had actual or constructive notice of any such incompetency.

The incompetency claim is premised on whether a cancer illness which inflicted Dr. Lissner had affected his performance as a physician. What plaintiff suggests is that these seven lawsuits that were filed show "that the cancer did have a negative effect on Dr. Lissner's general competence."

Of the seven lawsuits sought to be admitted, only five of them were in reference to surgeries that occurred before plaintiff's. As such, these five would be the only suits that would help determine whether Dr. Lissner was competent at the time of plaintiff's surgery. Of the five, only two resulted in a plaintiff's verdict. Another two were dismissed without prejudice at plaintiff's cost, and the other one resulted in a defendant's verdict. Therefore, any probative value towards the issue of competency is at best slight and the potential for prejudice and confusion for the jury is large. Thus, we fail to find error in the trial court's refusal of allowing said evidence on the issue of Dr. Lissner's competency.

Next, plaintiff argues that the seven lawsuits are relevant to the issue of whether Plastic Surgery Consultants, Limited and/or its board, officers and employees had actual or constructive notice of any incompetency. Of the seven lawsuits excluded, only three were filed prior to plaintiff's surgery. For the purposes of notice, these three are the only suits we are concerned with. Of these three, one resulted in a defendant's verdict and the other two were dismissed without prejudice at plaintiff's cost. Such suits filed are no indication of Dr. Lissner's incompetency, thus would not provide any notice thereof. Irrelevant and immaterial evidence is excluded because its admission has a tendency to draw the jury's attention away from the issues it has been called to resolve. Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646 (1945). We fail to find error from the exclusion of this evidence. Point denied.

Plaintiff's final point on appeal states that the trial court erred by overruling plaintiff's motion for a new trial because the evidence of her damages supported a much larger sum than the $75,000 awarded by the jury and was therefore inadequate and against the greater weight of the evidence.

Appellate review of a trial court's order denying a motion for new trial on the grounds of a verdict's inadequacy is limited to whether the trial court abused its discretion. Summers v. Fuller, 729 S.W.2d 32, 33 (Mo.App.1987). Also, this court is limited to consideration of the evidence which supports the trial court's action since the trial court denied the motion. Summers at 33.

In a medical malpractice action, the determination of the amount to be awarded for injuries rests with the jury, since it is to assess the credibility of the witnesses in addition to the weight and value of their testimony. Summers at 34, 35. Therefore, the trial court has wide discretion in ruling on motion for a new trial since it too had an opportunity to view the witnesses giving their testimony.

Thus, where a verdict is approved by the trial court, "it is conclusive on appeal unless it is so shocking and grossly inadequate as to indicate that the amount of the verdict was due to passion and prejudice." Long v. Hooker, 443 S.W.2d 178, 182 (Mo. 1969).

We have reviewed the entire record and conclude that the verdict was not shocking and grossly inadequate, thus no abuse of discretion appears. Point denied.

Now we turn to defendants' cross-appeal. Defendants' first point on cross-appeal contends that plaintiff failed to make a submissible case in that 1) there was no evidence that Dr. Lissner violated the standard of care of the medical profession at large and 2) there was no substantial evidence that Dr. Lissner committed medical malpractice.

The defendants' first subcontention is that plaintiff's only expert, Dr. Gutek, offered testimony that is so equivocal and contradictory that there was no evidence that Dr. Lissner violated that standard of care of the medical profession at large as brought out on cross-examination.

In determining whether a submissible case is made, all the evidence must be viewed in the light most favorable to the plaintiff, giving her the benefit of all inferences and disregarding defendants' evidence except insofar as it might be favorable to plaintiff. Yoos v. Jewish Hospital of St. Louis, 645 S.W.2d 177, 183 (Mo.App.1982). Plaintiff's sole theory of negligence as submitted to the jury was that Dr. Lissner was negligent in performing the breast reduction surgery by removing too much tissue and by failing to inform plaintiff of such possible results. The testimony of plaintiff's expert, Dr. Gutek, was played to the jury on video tape and is as follows in pertinent part on direct exam:

Q. [Dr. Gutek], based on these facts, and based on reasonable medical certainty, do you have an opinion as to whether Bart Lissner, in his December 10, 1982 breast reduction surgery on Joyce Barr, failed to use that degree of skill and learning ordinarily used by plastic surgeons in this circumstance:

A. (By Dr. Gutek) Yes.

Q. (By Mr. Miller) And, what is that opinion, Doctor?

A. The opinion is that Joyce Barr had an over resection of tissue of breast tissue, which resulted in lack of projection to her nipples, or to her breasts following surgery.

Q. Now, my question, Doctor, was: Based on these facts which I ask you to assume, and based on reasonable medical certainty, do you have an opinion as to whether Bart Lissner in his December 10, 1982 breast reduction surgery on Joyce Barr failed to use that degree of skill and learning ordinarily used by plastic surgeons in this circumstance?

A. Yes.

Q. (By Mr. Miller) And, you said you do have such an opinion?

A. Yes, I do.

* * *

Q. (By Mr. Miller) All right. And, what is your opinion?

A. My opinion is that he failed to use the expertise that is usually taken by a plastic and reconstructive surgeon in doing a reduction mammoplasty.

Q. And, in what aspects?

A. The aspects which, I think, were deficient were the pre-operative informed consent to the patient, and secondly inadequate planning for the surgery, and then over resection the breast tissue.

Q. And, can you state more specifically what you mean by over resection of breast tissue?

A. Taking out too much breast tissue which resulted in breasts that did not have any projection, or resulting in breasts which were flatter than what they should have been.

* * *

Q. (By Mr. Miller) Really, I'm interested in your opinion as to why the communication was deficient and what reasons you have for that?

A. Based on his--Okay. A patient such as Joyce Barr who has loose...