Callahan v. Cardinal Glennon Hosp.

• Decision Date: 26 October 1993
• Docket Number: No. 75403,75403
• Citation: 863 S.W.2d 852
• Parties: Daniel CALLAHAN, Respondent, v. CARDINAL GLENNON HOSPITAL, Defendant, and St. Louis University, Appellant.
• Court: Missouri Supreme Court

Page 852

863 S.W.2d 852

Daniel CALLAHAN, Respondent, v. CARDINAL GLENNON HOSPITAL, Defendant and St. Louis University, Appellant.

No. 75403.

Supreme Court of Missouri En Banc.

Oct. 26, 1993.

William L. Davis, Michael J. McDonnell, Robyn G. Fox, St. Louis, for appellant.

Godfrey P. Padberg, James P. Leonard, William Nolan, St. Louis, for respondent.

Morris E. Stokes, Kevin F. O'Malley, Debra J. Stachowski, St. Louis, for amicus curiae MMIC.

Mary D. Winter, Richard S. Brownlee II, Jefferson City, for amicus curiae MSMA.

Ron Simon, Washington, DC, for amicus curiae Doctors.

J. Kent Emison, Lexington, for amicus curiae MATA.

THOMAS, Judge.

Daniel Callahan ("Danny") was born on August 7, 1978. For the first three and one-half months of his life, Danny was basically healthy and normal. On November 4, 1978, Danny received Orimune, a live polio vaccine. This vaccine is an attenuated polio virus, which means it is a weakened strain of polio. Until the end of November, Danny remained basically in good health. On November 30, 1978, Danny's mother noticed a red area between Danny's anus and scrotum. The resulting events, which will be discussed below, eventually led a jury to find that Danny was a victim of medical malpractice, which caused him to be a permanent triplegic. The jury returned a $16 million verdict in Danny's favor.

On Saturday, December 2, 1978, Danny had a fever and the red area had developed into a "boil" the size of a nickel with a white center. Danny's parents originally gave Danny some Tylenol, but when the fever persisted, they took him to Cardinal Glennon Hospital ("Cardinal Glennon"). At Cardinal Glennon, Danny's condition was initially assessed by a nurse, Ercell Williams. Williams weighed Danny and took his temperature. It was noted in the hospital records that Danny had previously received "one immunization." Danny and his mother were then directed to an examining room in the acute care unit. In the acute care unit Danny was examined by Debra Schwarz, a pediatric nurse practitioner ("PNP"). PNP's are registered nurses with additional training in pediatrics. Schwarz diagnosed the "boil" as a perirectal abscess and determined that the fever was caused by this abscess. Schwarz then left the room and subsequently returned with a list of instructions for treating Danny and a prescription for Oxycillin, an antibiotic.

The instructions provided that the abscess be soaked in warm water, that any fever be treated with Tylenol, and that Danny should see Dr. Fetick, his pediatrician, on Monday, December 4, 1978. At the time of this examination, no cultures were taken to determine whether the abscess contained gram positive or gram negative bacteria. Oxycillin is an effective antibiotic for gram positive but not gram negative bacteria. After receiving these instructions and the prescription, Danny was released from the hospital.

The hospital records indicate that Schwarz examined Danny and that Dr. John Venglarcik was the supervising physician. Danny's mother testified that she thought Schwarz was a physician and that no one except Nurse Williams and Schwarz examined Danny. Dr. Venglarcik testified that he did not recall examining Danny but admitted that his signature appeared on the chart. At this time, Dr. Venglarcik was employed as a resident by St. Louis University ("SLU"). SLU and Cardinal Glennon have an affiliation agreement where doctors employed by SLU are authorized to treat patients in Cardinal Glennon's acute care unit. Danny's parents began to administer the Oxycillin as instructed. The next day Danny remained in essentially the same condition except that he began to vomit that evening. On December 4, 1978, Danny was examined by Dr. Fetick. Dr. Fetick told Danny's mother to continue soaking the abscess in warm water and to continue giving Danny Oxycillin. On December 5, 1978, Danny's parents noticed that his legs appeared to be floppy. Danny's father called Cardinal Glennon and explained Danny's condition. Cardinal Glennon told Danny's father that babies are less active when they have a fever and that Danny did not need to be brought to the hospital.

The next morning, Danny's legs were still floppy and his eyes were rolling back into his head. That morning Danny's mother took him back to Cardinal Glennon. Doctors determined that Danny's legs and left arm were paralyzed. In the emergency room, a physician incised and drained the abscess. Cultures of the abscess revealed four types of gram negative bacteria. At this time, Danny received a different antibiotic which, unlike Oxycillin, was effective against gram negative organisms. Danny's condition did not improve and his legs and left arm remain paralyzed. After 18 days at Cardinal Glennon, Danny was released.

The Callahans filed a medical malpractice claim against SLU, Cardinal Glennon, Dr. Fetick, and American Cyanamide Co., the manufacturer of Orimune. At the time of trial, SLU and Cardinal Glennon remained as defendants.

Two expert witnesses, testifying on Danny's behalf at trial, stated that Danny's paralysis was caused by SLU and Cardinal Glennon's negligence in failing to treat the abscess properly. The theory of these two witnesses was that because the abscess contained four gram negative organisms, which release endotoxins, Danny's immune system was suppressed and susceptible to the live polio virus in the vaccine (Orimune). According to these two experts, endotoxins suppress the immune system by decreasing the number of T cells in the body. T cells are an important part of the immune system because they help identify organisms and cause the body to produce antibodies. By decreasing the production of T cells the immune system is slowed down. Because Danny received Orimune at the beginning of November, the virus was still replicating in Danny's gastrointestinal tract when he had the abscess. The plaintiff's expert witnesses, Dr. Malone and Dr. Burmeister, testified that if the abscess had been incised and drained on December 2, 1978, as required by the standard of care, and had Danny been treated with an appropriate antibiotic, the endotoxins would not have been released and the immune system would not have been suppressed. Because Danny's system was compromised, the attenuated polio virus was able to replicate fast enough to overcome the suppressed immune system, resulting in poliomyelitis. Thus, these two expert witnesses testified that if Danny had been treated properly, he would not now be paralyzed.

On the other hand, at least some of the expert witnesses for SLU and Cardinal Glennon testified that Danny's paralysis was caused by the attenuated polio virus mutating to a virulent form after it had been ingested and had no connection to the abscess. Dr. Schwartz, one of the defense's experts, testified that in the 1980's approximately one in four hundred thousand people receiving the vaccine for the first time developed polio. At least two of the experts would not concede that Danny's paralysis was caused by polio. Some of the defense's experts asserted that the theory that endotoxins result in an immune suppression making a host more susceptible to vaccine-induced poliomyelitis was not supported by any known research or writing in the forty year history of the vaccine's use. At least one of the defense's experts conceded that if the immune system was suppressed due to the production of endotoxins the risk of contracting polio from the vaccine could occur but only if the immune system was suppressed at or near the time the vaccine was given. In addition, some of the defense experts asserted that the presence of endotoxins would actually stimulate the immune system.

After a three week trial, the jury returned a verdict against SLU and Cardinal Glennon. Danny received a judgment of $16 million in compensatory damages. After the trial, Cardinal Glennon entered into a settlement agreement with the Callahans. SLU appealed.

SLU asserts eight points of error on appeal: (1) the jury instructions were erroneous; (2) plaintiff failed to present sufficient evidence of causation; (3) the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10 et seq. (1988) mandates dismissal of the action; (4) the trial court mishandled questions from jurors during the trial; (5) the trial judge failed to maintain impartiality; (6) a new trial should have been granted because of misconduct by the plaintiff's attorney; (7) the trial court improperly allowed an insurance question during voir dire; and (8) the evidence did not support the $16 million judgment. We affirm the judgment of the trial court.

I. JURY INSTRUCTIONS

Defendant SLU raises three issues with respect to jury instructions, all directed to Instruction No. 8, the verdict director submitted against SLU. That instruction reads as follows:

INSTRUCTION NO. 8

Your verdict must be for the plaintiff, Danny Callahan, and against the defendant, St. Louis University, if you believe:

First, plaintiff Danny Callahan had an abscess on December 2, 1978, and

Second, either:

Defendant St. Louis University failed to have plaintiff Danny Callahan examined by a physician on December 2, 1978, or

Defendant St. Louis University failed to incise and drain Danny Callahan's abscess on December 2, 1978, and

Third, defendant St. Louis University in any one or more of the respects submitted in paragraph Second was thereby negligent, and

Fourth, such negligence directly caused or directly contributed to cause damage to plaintiff.

The verdict director against defendant Cardinal Glennon (Instruction No. 6) was identical except that the name of Cardinal Glennon was inserted at each place where Instruction No. 8 names defendant SLU.

SLU claims in its first point of error concerning jury instructions that the court erred by giving instructions that allowed the jury to return verdicts which required inconsistent, mutually exclusive findings of fact. SLU argues that the submission against defendant...