Bowls v. Scarborough

• Decision Date: 09 September 1997
• Docket Number: No. WD,WD
• Citation: 950 S.W.2d 691
• Parties: Rhonda BOWLS, et al., Appellants, v. Betty SCARBOROUGH, M.D., et al., Respondents. 51323.
• Court: Missouri Court of Appeals

Page 691

950 S.W.2d 691

Rhonda BOWLS, et al., Appellants, v. Betty SCARBOROUGH, M.D., et al., Respondents.

No. WD 51323.

Missouri Court of Appeals,

Western District.

Sept. 9, 1997.

David T. Greis, Kansas City, for appellants.

Hal D. Meltzer, Kansas City, Turner & Boisseau, for respondents.

Before ELLIS, P.J., and LOWENSTEIN and HOWARD, JJ.

ELLIS, Judge.

On July 17, 1986, at 1:15 p.m., Bobby Bowls entered the Research Medical Center Emergency Department complaining of chest pain. Dr. Betty Scarborough was the only physician staffing the Emergency Department at that time. Within five minutes of his arrival, Dr. Scarborough conducted an initial examination of Mr. Bowls. Mr. Bowls told Dr. Scarborough that he had had chest pain for about an hour and that there was no history of cardiac disease in his family. Mr. Bowls also told her that he felt nauseated and that he had been drinking heavily the day before.

Dr. Scarborough considered a number of possible causes for Mr. Bowls' symptoms including pneumothorax, coronary ischemia, pulmonary embolism, aortic dissection, musculo-skeletal injury, and gastrointestinal disease. Dr. Scarborough ordered morphine to ease Mr. Bowls' stress and pain, in addition to other medication for his nausea. The nursing staff started an intravenous line and oxygen by nasal cannula. Dr. Scarborough ordered an electrocardiogram (EKG), chest x-rays, blood tests, and testing of the arterial blood gases. Mr. Bowls was moved from an intermediate care room to the critical care room. In response to the morphine and oxygen, Mr. Bowls' blood pressure began to decrease.

Mr. Bowls' first EKG was completed at 1:40 p.m. The computer interpreted the EKG as being consistent with pericarditis, but Dr. Scarborough felt that the ST segment elevations demonstrated on the EKG were consistent with an acute injury pattern and possible myocardial infarction (heart attack).

When Mrs. Bowls arrived at the emergency room, she informed the hospital staff that her husband was insured through Total Health Care and that his primary care physician was Dr. Steven Gruenebaum. This information was handwritten onto Mr. Bowls' medical record. Mrs. Bowls believed that under the terms of the Total Health Care plan, Dr. Gruenebaum's approval was required before emergency treatment could be initiated. For this reason, Mrs. Bowls had attempted to contact Dr. Gruenebaum from her office upon learning of her husband's chest pain. After being placed on hold by Dr. Gruenebaum's office for an extended period of time, Mrs. Bowls gave up and proceeded to Research Hospital. Mrs. Bowls again called Dr. Gruenebaum's office from the emergency room and was informed by his office staff that the emergency physician was only authorized to conduct an initial evaluation.

This information was relayed to Dr. Scarborough. By that time, Dr. Scarborough had ordered a second EKG, and Mr. Bowls was responding to the morphine and oxygen. Dr. Scarborough attempted to contact Dr. Gruenebaum directly to arrange for Bowls' admission to the hospital under the care of an internist or cardiologist. Dr. Scarborough was initially unable to reach Dr. Gruenebaum, but Dr. Gruenebaum called her back about ten minutes later at 2:20 p.m. Dr Scarborough told Dr. Gruenebaum that Mr. Bowls had arrived at the emergency room complaining of chest pain and that Dr. Gruenebaum's name appeared on Mr. Bowls' Total Health Care card as his primary care physician. Dr. Scarborough told Dr. Gruenebaum that the computer had interpreted Mr. Bowls' EKG as diagnostic of pericarditis but that she thought the patient might be experiencing a myocardial infarction. Dr. Scarborough discussed Mr. Bowls' condition and possible need for an angioplasty procedure, and she asked Dr. Gruenebaum which internist or cardiologist he would like to have admit Mr. Bowls.

Dr. Gruenebaum told Dr. Scarborough that he did not know Mr. Bowls and that he was "sick of people doing this to him." Dr. Gruenebaum refused to authorize admission and stated that he would only become involved in Mr. Bowls' care if he was sent to Baptist Hospital where he had admitting privileges. Dr. Scarborough informed Dr. Gruenebaum that Mr. Bowls was not stable enough to be transferred to another hospital. Dr. Gruenebaum reiterated his refusal to authorize treatment and told Dr. Scarborough to call Total Health Care to get authorization for a cardiology consult.

Dr. Scarborough told the emergency room nurse to call Total Health Care and a cardiologist. She also ordered another EKG. At 2:30 p.m., Dr. Scarborough talked to Dr. James Eynon, a cardiologist with admitting privileges at Research Medical Center. Dr. Scarborough told Dr. Eynon that she needed an emergency cardiology consult on a thirty year old patient with chest pain. She also told him that the computer analysis of the EKG suggested pericarditis but that she thought Mr. Bowls was sicker and might be experiencing a myocardial infarction. After Dr. Scarborough told Dr. Eynon that Dr. Gruenebaum had refused to authorize a cardiology consult, Dr. Eynon told her that he would not come down to the emergency room until Total Health Care gave its approval for cardiology services.

Dr. Scarborough next spoke with a representative from Total Health Care. The representative told her that approval for a cardiology consult and hospital admission would need to come from a supervisor who was unavailable at the moment.

Dr. Scarborough then told Mrs. Bowls of her belief that Mr. Bowls needed treatment by an internist or cardiologist and potentially needed an angioplasty. Dr. Scarborough also explained to Mrs. Bowls that the cardiologist, Dr. Eynon, was insisting on Total Health Care's authorization before performing any procedure.

Shortly after 3:00 p.m., Dr. Scarborough called Total Health Care back and was told that the supervisor had not yet returned. Dr. Scarborough told the representative that Total Health Care was delaying treatment of a man with a possible myocardial infarction. The representative then told Dr. Scarborough that her supervisor had just walked in and promised to call back.

Also about 3:00 p.m., Dr. Eynon arrived in the emergency room and examined Mr. Bowls' EKGs. Dr. Eynon felt that the pattern shown in the EKGs was consistent with myocardial infarction. Dr. Eynon entered Mr. Bowls' room and told Mrs. Bowls that he would "get things moving" once he received approval from Total Health Care.

While Dr. Eynon was talking with Mrs. Bowls, at about 3:15 p.m., Total Health Care called back, authorizing Mr. Bowls' admission and evaluation by a cardiologist. Dr. Scarborough relayed this information to Dr. Eynon.

Dr. Eynon ordered more morphine and sublingual nitroglycerin for Mr. Bowls. He then left the emergency room to prepare for an angioplasty procedure on Mr. Bowls. After Dr. Eynon left the emergency room, Mr. Bowls experienced an intractable arrhythmia. Dr. Scarborough was unable to resuscitate Mr. Bowls, who was pronounced dead at 4:58 p.m.

An autopsy later revealed that Mr. Bowls suffered from left ventricular hypertrophy and that his left anterior descending coronary artery was 95% occluded. The occlusion resulted in a lack of oxygen to the heart, making Mr. Bowls susceptible to arrhythmia.

On July 14, 1989, Mrs. Bowls and her children filed a petition for damages in the Circuit Court of Jackson County. Mrs. Bowls and her children eventually entered settlement agreements with Dr. Gruenebaum and Dr. Eynon, and on April 13, 1992, voluntarily dismissed the petition as to other defendants without prejudice. On April 12, 1993, Mrs. Bowls and her children filed a second petition for damages in the Circuit Court of Jackson County alleging negligence on the part of Dr. Scarborough and claiming that Spectrum Emergency Care, Inc. was vicariously liable for that negligence. Trial began on March 27, 1995, and ended with a jury verdict in favor of Dr. Scarborough and Spectrum Emergency Care ("Respondents") on April 7, 1995. Mrs. Bowls and her children ("Appellants") bring seven points on appeal.

In their first point, Appellants claim the trial court erred in not granting a mistrial after Respondents argued and presented evidence suggesting comparative fault on the part of Mr. and Mrs. Bowls. Appellants argue that Respondents were improperly allowed to comment on Mr. Bowls' failure to go to a doctor while suffering chest pain for two months prior to his death and on Mrs. Bowls' attempts to call Dr. Gruenebaum rather than 911. In presenting this point, Appellants attempt to claim error through a combination of different rulings by the trial court.

Appellants' initial complaints relate to Respondents' opening statements. Early in those statements, Respondents commented:

Now, [Mr. Bowls] didn't have ... that 95 percent occlusion for just that day of July 7, 1986. He had had it for a long time. He'd had chest pains in that regard for a long time and he had not gone to see a doctor about it.

Appellants objected to the comment that Mr. Bowls had not gone to see a doctor about his chest pains, and moved for a mistrial. Prior to trial, the court had granted a motion in limine stating that Respondents could "talk about his chest pain, but not talk about anything other than the fact that he'd had chest pains prior to this particular occurrence." ¹ The trial court denied the motion for mistrial.

The court then allowed Respondents to state that, if admitted, the evidence would show that had Mr. Bowls gone to a doctor during the two month period prior to his date of death, the 95 percent occlusion of his left anterior descending coronary artery would in all probability have been discovered and an angioplasty would have been performed. Appellants objected to these statements as irrelevant. The trial court overruled that objection.

Respondents next began to describe the events of the morning of July 17, 1986:

That morning Bobbie Bowls had gone to the unemployment...