Brooks v. Ssm Health Care

• Decision Date: 28 May 2002
• Docket Number: No. 23697.,No. 23664.,23664.,23697.
• Citation: 73 S.W.3d 686
• Parties: Sally BROOKS, Plaintiff-Appellant, v. SSM HEALTH CARE, Central Region f/k/a SSM Health Care II d/b/a Arcadia Valley Hospital, and Fernando Decastro, M.D., Defendants-Respondents.
• Court: Missouri Court of Appeals

73 S.W.3d 686

Sally BROOKS, Plaintiff-Appellant, v.SSM HEALTH CARE, Central Region f/k/a SSM Health Care II d/b/a Arcadia Valley Hospital, and Fernando Decastro, M.D., Defendants-Respondents.

No. 23664.

No. 23697.

Missouri Court of Appeals, Southern District, Division Two.

February 6, 2002.

Motion for Rehearing and Transfer to Supreme Court Denied February 28, 2002.

Application for Transfer Denied

May 28, 2002.

Matthew J. Padberg, The Padberg Law Firm, St. Louis, for Appellant.

David G. Ott, Thomas B. Weaver, Jeffery T. McPherson, Armstrong Teasdale LLP, St. Louis, for Respondent SSM Health Care, Central Region.

John L. Oliver, Jr., Oliver, Oliver & Waltz, P.C., Cape Girardeau, for RespondentFernando DeCastro, M.D.

NANCY STEFFEN RAHMEYER, Judge.

Sally Brooks("Appellant") was awarded $315,000 for medical negligence against defendants SSM Health Care, Central Region ("SSM") and Fernando DeCastro("Dr. DeCastro").The trial court granted defendants' motions for a new trial, which Appellant appealed in case number 23664.The trial court then amended its order by specifying the grounds for the prior ruling, and Appellant appealed from the amended judgment in case number 23697.The appeals were consolidated.We reverse and remand for reinstatement of the jury verdict.

Initially, we must address SSM's arguments challenging this court's jurisdiction of both appeals and the jurisdiction of the trial court to enter an amended order.¹The trial court's acceptance of the jury's verdict in favor of Appellant is recorded in a docket entry made the same day as the verdict, January 14, 2000.SSM contends that this docket entry was entered without the signature of the trial judge and therefore no judgment was entered in favor of Appellant because, according to Rule 74.01(a),² a judgment can be entered only when a writing signed by the judge and denominated "judgment" is filed.That may be true, but it is not dispositive in this case as we have jurisdiction to view the judgment granting a new trial, not the judgment approving the jury's verdict.SeeDuckett v. Troester,996 S.W.2d 641, 646(Mo.App. W.D.1999).Appellant is appealing from the decision granting a new trial, not from the approval of the jury's verdict.SSM and Dr. De-Castro admit that both of the signed orders granting a new trial qualify under Rule 74.01(a) as judgments.

SSM also argues that Appellant cannot appeal the order granting a new trial because that order did not deprive Appellant of a judgment in that the verdict of January 14th was not a judgment.According to SSM, if Appellant has not been deprived of a judgment, then Appellant has not been "aggrieved" pursuant to § 512.020, RSMo 2000, and cannot appeal.³SSM provides no cases to support its theory, nor has it offered an explanation why precedent is unavailable.As such, with no authority and no explanation why precedent is unavailable, we consider the argument waived or abandoned.SeeJordan v. City of Kansas City,972 S.W.2d 319, 322(Mo.App. W.D.1998).

The judgment appealed from is reviewable.The trial court signed a document titled "Judgment & Order" that granted a new trial.We have jurisdiction to review that judgment.SeeDuckett,996 S.W.2d at 646.We also find the trial court had the authority to amend that judgment.SeeTaylor v. United Parcel Service, Inc.,854 S.W.2d 390, 392(Mo. banc 1993)(wherein the trial court retained the authority to vacate, reopen, correct, amend or modify its judgment within thirty days as provided by Rule 75.01 and the timely filing of a notice of appeal did not shorten the thirty days granted to the trial court to do so).

We are further persuaded to review the second amended judgment by the words of the trial court indicating it intended its amended judgment to have a meaningful appeal on its rulings concerning the admission of testimony.When the court made its ruling concerning the granting of a new trial, it made the following statement:

THE COURT: I want to give all the reasons, and I want [the defense attorneys] to address this....The court certainly understands [Plaintiff's attorney's] position in this case and he has an absolute right to appeal this ruling and I want to do this [formally] .... but what I want to do is put it in writing and sign it, so [Plaintiff's attorney] can appeal and you can appeal each point and address each point.I think courts sometimes are a little lax in giving our reasons why we're doing things and I think if we're going to do something we ought to be able to explain it so you can address each point with the appellate court.

The comments show that all the parties and the court were aware of the standard of review regarding whether an appeal was a discretionary appeal⁴ or an appeal as to whether a submissible case had been made.⁵The amended judgment sets forth the specific grounds for the granting of a new trial and indicates that Appellant did not make a submissible case because of the lack of expert testimony.An examination of the original order and the amended order indicates two differences between the orders.The sixth finding as stated in the original order is, "the Court ... is of the opinion that the verdict is against the manifold weight of the evidence."That paragraph was changed in the amended order and the following was added, "because Plaintiff's experts should not have been permitted to testify as described in paragraphs `Third' and `Fourth', supra."Additionally, the amended order states that the verdict director was "barred by the Court's ruling on the admissibility of certain opinion evidence as hereinafter set forth."

The amended language clarifies the trial court's intention as to whether the order is final so it could be appealed, and comports with the requirements of Rule 78.03.Rule 78.03 provides, "Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted."Rule 84.05(c) states in part, "When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent."The purpose of requiring specificity in motions for new trial is to define the reason for granting the new trial, thereby limiting the issues cognizable on appeal and promoting judicial economy.Dixon v. Bi-State Development Agency,636 S.W.2d 696, 698(Mo.App. E.D.1982);Hightower v. Hightower,590 S.W.2d 99, 103(Mo.App. W.D.1979).The above-noted comments of the trial court and the fact that the order was amended at all indicates the trial court intended some effect to be given to the added language.

Finding there is an appealable judgment, we now turn to Appellant's arguments.Appellant's argue that the trial court erred in granting defendants' motion for new trial because Appellant's expert testimony was properly admitted.Appellant also argues that the court was incorrect in finding instructional error and in finding insufficient evidence to support Appellant's claim for future damages.

The underlying basis for granting a new trial was that Appellant's experts were unqualified to testify.If Appellant's experts are disqualified, there is no expert testimony that Dr. DeCastro breached the standard of care and that the breach caused injury to Appellant.To have made a submissible case of medical malpractice, Appellant must have established by expert opinion that Dr. DeCastro failed to use that degree of skill and learning ordinarily used by doctors under the same or similar circumstances and Dr. DeCastro's negligence caused the injury to Appellant.SeeWashington v. Barnes Hospital,897 S.W.2d 611, 615(Mo. banc 1995).

In determining whether the plaintiff has made a submissible case, we view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff.Coon v. Dryden,46 S.W.3d 81, 88-89(Mo.App. W.D.2001).It is improper to withdraw a case from the jury unless there is no room for reasonable minds to differ.Id. at 89.There must be a "complete absence of probative fact" supporting the jury's conclusion before we can reverse the jury's verdict for insufficient evidence.Id.;Seitz v. Lemay Bank and Trust Company,959 S.W.2d 458, 461(Mo. banc 1998).On the other hand, if any one of Appellant's experts was qualified to testify to the standard of care and that the breach caused injury to the Appellant then Appellant has made a submissible case and it was error to set aside the judgment.

The issue tried in this case was whether Appellant was inappropriately given a medication known as tissue plasminogen activator ("tPA").The jury found in Appellant's favor against Dr. DeCastro as the person who administered the tPA and against SSM on the basis of respondeat superior.An inappropriate administration of the drug allegedly caused a bleed into Appellant's spinal canal and neurological problems that required two subsequent surgeries to remove blood clots on the spinal cord.After the operations Appellant was seriously debilitated; her head was wobbly like a newborn baby's, she was unable to control her bladder or bowel movements, she had to be retaught how to write and had to learn to walk with a walker.The imbalance, incontinence, and weakness continued up to the time of trial.

Dr. DeCastro's⁶ complaints concern all three of Appellant's experts.Specifically, Dr. DeCastro complains, and the trial court so found, that there was:

[N]o evidence as to whether or not the Plaintiff's experts' theories could be proven objectively, and Plaintiff's experts each admitted that there was no scientific study which proved their theory.The Plaintiff's experts did not demonstrate that their methodology had been subject to peer review, and in fact, they admitted that there were no peer review articles substantiating or supporting...