Brown v. Bailey
| Decision Date | 14 November 2006 |
| Docket Number | No. ED 86387.,ED 86387. |
| Parties | Amelia BROWN, Ashley Plummer, Zina Plummer, Oneta Richardson, and Vena St. John, Respondents, v. Greg BAILEY, M.D., Appellant, and Tenet Health System d/b/a Forest Park Hospital, Olexandr Krinochkin, Michael Mandis, Pam Woods, Lee Hanson, Charles Wetherington, Defendants. |
| Court | Missouri Court of Appeals |
Ann Marie Piana, Shanna K. Fulton, Eckenrode-Maupin, St. Louis, MO, for appellants.
Burton M. Greenberg, Leo Newman, Michael A. Gross, Joseph F. Yeckel, Law Office of Michael A. Gross, St. Louis MO, for respondents.
Appellant, Greg Bailey, M.D. ("Dr.Bailey"), appeals from the judgment of the Circuit Court of the City of St. Louis, following a jury trial, entered in favor of Respondents, Amelia Brown, Ashley Plummer, Zina Plummer, Oneta Richardson, and Vena St. John (collectively "Plaintiffs"). Plaintiffs filed a wrongful death action against Dr. Bailey, and Defendants, Tenet Health System d/b/a Forest Park Hospital ("Forest Park"), Olexandr Krinochkin ("Dr.Krinochkin"), Michael Mandis ("Dr.Mandis"), Pam Woods ("Nurse Woods"),1 Lee Hanson ("Dr.Hanson"), and Charles Wetherington ("Dr.Wetherington") (collectively "Defendants"), seeking compensation for damages sustained as a result of the death of their mother, Loyce Plummer ("Decedent"). The jury found Plaintiffs' total damages to be $400,800, and assessed fifty percent of the fault to Dr. Bailey. We affirm.
On July 5, 2002, Decedent, at the age of 69, arrived at the emergency room at Forest Park via ambulance. She had a fever of 101 degrees, shortness of breath, chest pain, and complained of weakness, dizziness, headaches, and nausea. At that time, Decedent was taking the medication Coumadin, a blood thinner.
Dr. Hanson admitted Decedent to Forest Park shortly after midnight on July 6, 2002. When Dr. Hanson examined Decedent at 3:00 p.m. on July 6, 2002, she had pneumonia, complained of headaches, and her fever had increased to 103.4 degrees.
In the early morning hours of July 7, 2002, Decedent attempted to use the bathroom. As she tried to get out of bed, she became tangled in her IV tubing and fell and struck her head. At approximately 1:45 a.m., Nurse Woods paged Dr. Krinochkin, an intern, to inform him about Decedent's fall. Dr. Krinochkin responded to the page. He found Decedent sitting on the edge of the bed with a two to three centimeter laceration on her eyebrow. Decedent appeared confused and complained of a headache. Dr. Krinochkin sutured the laceration and returned every fifteen to thirty minutes to observe Decedent.
At about 2:50 a.m., Dr. Krinochkin became concerned about Decedent's mental status. After conferring with the resident on duty, Dr. Mandis, Dr. Krinochkin ordered a CT scan of Decedent's head. Dr. Krinochkin received the CT scan results about 4:45 a.m., which revealed that Decedent was suffering from an epidural hematoma and a subarachnoid bleed. When Dr. Krinochkin reviewed the results, he realized that Decedent required the urgent attention of a neurosurgeon because hematomas tend to increase in size and compress the brain. Dr. Krinochkin discussed the results with Dr. Mandis, who agreed that Decedent needed to be seen by a neurosurgeon right away.
Thereafter, Dr. Krinochkin contacted Dr. Hanson, the attending physician, to report Decedent's status and to get permission to call a neurosurgeon to examine Decedent. Dr. Hanson approved an urgent neurosurgical consultation. To obtain a neurosurgeon, Dr. Krinochkin contacted Forest Park's operator and told her he "need[ed] a neurosurgeon on-call."
Apparently, Forest Park's operator then attempted to page Dr. Bailey, the neurosurgeon on-call for Forest Park's emergency department. Dr. Bailey had staff privileges at Forest Park. Because Dr. Bailey was going to be unavailable, he had arranged for an associate in his practice group, Dr. Wetherington, to cover for him. Although the on-call schedule noted that the on-call physician was responsible for notifying the medical staff office of any changes, Dr. Bailey did not inform Forest Park of his arrangement with Dr. Wetherington.
Furthermore, when Dr. Bailey asked Dr. Wetherington to cover his calls, he knew Dr. Wetherington did not have staff privileges at Forest Park. Dr. Bailey was also aware that, as a result, if Forest Park contacted Dr. Wetherington to provide emergency neurological services for a patient, Forest Park would have to transfer the patient regardless of the patient's physical condition or the delay associated with the transfer.
Dr. Wetherington responded to the page at approximately 5:45 a.m. Dr. Krinochkin told Dr. Wetherington that Decedent had fallen and reported the results of her CT scan. Dr. Krinochkin asked Dr. Wetherington to "take a look at [Decedent]." Dr. Wetherington "immediately thought that this patient needs to be evaluated by a neurosurgeon." However, because he lacked staff privileges at Forest Park, he could not treat Decedent there. Accordingly, Dr. Wetherington advised Dr. Krinochkin to transfer Decedent to St. Mary's Hospital ("St.Mary's"), where he had staff privileges, or to St. Louis University Hospital ("SLU").
Dr. Krinochkin called Dr. Hanson and told him that Dr. Wetheringon did not have staff privileges at Forest Park and that he recommended transferring Decedent to either St. Mary's or SLU. Dr. Hanson decided to transfer Decedent to SLU because, inter alia, it had neurosurgeons on the premises around the clock.
Dr. Mandis called SLU to arrange for Decedent's transfer. Forest Park's transfer nurse made the final entry on Decedent's chart at 8:30 a.m. Decedent continued to bleed on her brain while awaiting transfer.
Decedent was admitted at SLU at approximately 9:30 a.m. The CT scan taken at Forest Park did not accompany Decedent when she was transferred to SLU. Decedent was taken to the floor and observed. At some point later that morning, Decedent began to deteriorate neurologically. At 11:00 a.m., SLU physicians reversed the anticoagulation effects of Coumadin, a process that had to take place before Decedent would be able to undergo neurosurgery. SLU obtained a second CT scan at 11:57 a.m. Based on the results of the CT scan, a decision was made to take Decedent to surgery. Dr. David Crafts performed an emergency craniotomy at SLU at approximately 2:00 p.m.
Decedent died on July 23, 2002. Decedent's death certificate notes that her cause of death was "pneumonia complicating closed head injury."
Subsequently, Plaintiffs filed a wrongful death action against Dr. Bailey and Defendants. With respect to Dr. Bailey, Plaintiffs alleged, inter alia, that Dr. Bailey acted negligently by: (1) delegating his on-call duties to Dr. Wetherington, and (2) failing to notify Forest Park of his decision to assign his on-call duties to Dr. Wetherington. In Dr. Bailey's answer, he requested that the jury apportion the fault to all of the parties, citing section 538.230, RSMo 2000.23
On December 10, 2004, the trial court entered an order approving a settlement between Plaintiffs and Forest Park. Plaintiffs dismissed Dr. Krinochkin and Dr. Mandis from the suit prior to trial.
A jury trial took place from January 31 to February 10, 2005 against Dr. Bailey, Dr. Hanson, and Dr. Wetherington. Dr. Bailey made motions for directed verdict at the close of Plaintiffs' evidence and at the close of all the evidence, which the trial court denied. Subsequently, the jury returned a verdict in favor of Plaintiffs in the amount of $400,800, and assessed fifty percent of the fault to Dr. Bailey. The trial court then entered a judgment in accordance with the jury's verdict. Thereafter, Dr. Bailey filed a motion for judgment notwithstanding the verdict or, in the alternative for a new trial, which the trial court denied. This appeal by Dr. Bailey followed.
In his first point on appeal, Dr. Bailey contends that the trial court erred in denying his motion for judgment notwithstanding the verdict because Plaintiffs failed to establish that Dr. Bailey owed a duty of care to Decedent.
In reviewing a trial court's denial of a motion for judgment notwithstanding the verdict, we must determine whether the plaintiff made a submissible case. Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 286 (Mo.App. E.D. 2002). "To make a submissible case, a plaintiff must present substantial evidence for every fact essential to liability." Id. We view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff, and disregard all contrary evidence. Steele v. Evenflo Co., Inc., 178 S.W.3d 715, 717 (Mo.App. E.D. 2005). When reasonable minds can disagree on the questions before the jury, our court may not disturb the jury's verdict. Id. We will reverse a jury's verdict only when we find there is a complete absence of probative facts to support it. Id. at 717.
Whether a duty exists is a question of law. Hallquist v. Midden, 196 S.W.3d 601, 604 (Mo.App. E.D.2006).
In order for a plaintiff to make a submissible negligence claim, he must prove the following: (1) the existence of a duty to be performed by the defendant; (2) a breach of that duty; and (3) a resulting injury caused by the breach. Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo.App. W.D.1994). A plaintiff can pursue a negligence cause of action against a defendant-physician in two ways: (1) a claim based on medical negligence, also referred to as "medical malpractice," and/or (2) a claim based on general negligence. See generally Millard v. Corrado, 14 S.W.3d 42, 49, 52 (Mo.App. E.D.1999) (...
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