Carlson v. Saint Louis Univ.
| Decision Date | 24 May 2016 |
| Docket Number | No. ED 102760,ED 102760 |
| Citation | 495 S.W.3d 777 |
| Parties | Carol Ann Carlson, as Personal Representative of the Estate of James Harris, Plaintiff/Appellant, v. Saint Louis University, Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Leonard P. Cervantes, Jennifer Suttmoeller, 1007 Olive Street, Fourth Floor, St. Louis, MO 63101, for Plaintiff/Appellant.
Robert S. Rosenthal, Christine A. Vaporean, Teresa M. Young, 800 Market Street, Suite 1100, St. Louis, MO 63101, For Defendant/Respondent.
, P.J.
Carol Ann Carlson (Appellant) appeals from the trial court's Judgment entered upon a jury verdict in favor of Saint Louis University (Respondent or SLU Hospital) on a third-amended petition filed March 28, 2011, alleging personal injury to Appellant's father, James Harris (Harris),1 due to Respondent's negligence. We affirm.
Appellant, as the personal representative of her father's estate, pursued the underlying action against Respondent for injuries Harris suffered following a cardiac catheterization
performed on August 30, 2005, by Dr. Richard Stewart (Dr. Stewart)2 and Dr. Jeffrey Ciaramita (Dr. Ciaramita) at SLU Hospital. Appellant alleged Dr. Stewart's use of a Duett closure device (Duett) at the end of the procedure was contraindicated by Harris's peripheral vascular disease
, causing Harris to develop a blood clot that ultimately led to the amputation of his left leg below the knee. After a jury trial, the jury returned a unanimous verdict for Respondent. Appellant filed a Motion for New Trial, which was denied. This appeal follows. Additional facts will be adduced as necessary in discussion of the points on appeal.
In her first point, Appellant claims the trial court erred in admitting Respondent's Exhibit H, Harris's medical record from the Veterans Administration medical center (VA) documenting the use of the Duett on Harris's right leg in 2003 because there was no evidence Dr. Stewart relied on the VA record in deciding to use the Duett in 2005 on Harris's left leg and no reasonable inference could be drawn thereon.
In her second point, Appellant claims the trial court erred in admitting Respondent's Exhibit C, Harris's medical record from SLU Hospital documenting the use of the Duett on Harris's left leg in 2005, because notes in the record post-procedure constituted self-serving hearsay.
We review the trial court's admission or exclusion of evidence under a deferential standard of review for abuse of discretion. Ziolkowski v. Heartland Regional Medical Center, 317 S.W.3d 212, 216 (Mo.App.W.D. 2010)
. An abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances before the court at the time and is so unreasonable and arbitrary that it shocks one's sense of justice and indicates a lack of careful consideration. Gallagher v. DaimlerChrysler Corp., 238 S.W.3d 157, 162 (Mo.App.E.D. 2007). Only if there is a substantial or glaring injustice will we disturb a trial court's ruling. Calzaretta v. Willard, 391 S.W.3d 488, 493 (Mo.App.S.D. 2013).
On February 21, 2003, Harris presented to the VA with chest pain and underwent a cardiac catheterization
via a right groin entry site. A Duett sealing device was used to close the puncture site of the right femoral artery. A Duett sealing device is a single-use, disposable, medical device used during surgery that stops bleeding from the femoral artery puncture site following the passage of the catheter (a thin hollow tube) through the blood vessel. The Duett is made up of two main parts: a thick liquid called a procoagulant that rapidly clots blood upon contact, and a flexible balloon catheter used to access and temporarily seal the puncture site. No complications resulted from this procedure. Exhibit H is the medical record from the VA documenting this procedure, and indicating the right femoral artery puncture site hemostasis was achieved with the Duett.
On August 30, 2005, Harris presented to the VA with chest pain, was transferred to SLU Hospital and underwent a cardiac catheterization
via a left groin entry site. Dr. Stewart used a Duett to close the puncture site of the left femoral artery. Ten minutes later, Harris began complaining of lower left extremity pain. A repeat arteriogram (x-ray with dye) showed a blood clot and compromised blood flow in the left deep femoral artery. There was also evidence of a totally occluded left superficial femoral artery. Dr. Stewart noted that a “thrombus (blood clot ) was identified at what appeared to be the site of the closure device with thrombus extending into the Profunda artery.” He attempted to remove the blood clot
using an angiojet catheter and tPa.3 Dr. Gary Peterson (Dr. Peterson), a vascular surgeon, then performed thrombectomy surgery to remove the blood clot. Following the surgery, Dr. Peterson expressed concern Harris could lose his leg. Harris was admitted to the ICU after the thrombectomy surgery. On September 12, 2005, Mr. Harris underwent a below-the-knee amputation due to persistent pain and gangrene of his lower left leg.
Exhibit H, Harris's medical record from the VA documenting the use of the Duett on Harris's right leg in 2003 was presented and referred to at trial during opening argument by Respondent and during the testimony of Dr. Ciaramita and Dr. Patricia Cole (Dr. Cole). Dr. Ciaramita testified the 2003 VA medical records were ordered and reviewed by the cardiology team at SLU Hospital prior to Harris's 2005 cardiac catheterization
. Respondent argued Exhibit H was reviewed by Dr. Stewart and relied on in his decision to use the Duett as a closure device after the 2005 procedure. Dr. Cole also testified regarding the use of the Duett in the 2003 VA procedure on Harris.
Appellant maintains the trial court should have excluded Exhibit H and Dr. Cole's supporting testimony because it created a misimpression that Dr. Stewart relied on the VA record when there was no evidence of such reliance. Appellant also asserts such a reliance would be misplaced because the Duett was used at the VA on the right leg and at SLU Hospital on the left, and there was no evidence what the condition of the right femoral artery was in 2003, or that it was similar to the left femoral artery in 2005, or why a decision was made to use the Duett at the VA in 2003.
Although there was no direct testimony from Dr. Stewart that he relied in part on Exhibit H in determining to use the Duett as a closure device in the 2005 cardiac catheterization
, Respondent presented credible evidence Dr. Stewart had access to and reviewed Exhibit H prior to the procedure as well as expert opinion that it was common practice to do so. Dr. Stewart's notes specifically reference a comparison he made between the results of the two procedures indicating he looked at the 2003 catheterization report from the VA. Dr. Cole testified it is standard practice to look at previous procedures on direct examination:
Appellant objected to the admission and discussion of Exhibit H and Dr. Cole's testimony it would be standard procedure for a cardiologist like Dr. Stewart to review records from a prior procedure such as Exhibit H. The trial court allowed the evidence and ruled Appellant was free to cross-examine on the issue, which Appellant did.
Dr. Cole's opinion was not based upon assumptions unsupported in the evidence. Rather, her opinion was supported by competent evidence and had sufficient probative force to be substantial evidence. Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615–616 (Mo.banc 1995)
. Dr. Stewart's own notes in the cardiac catheterization report and his resident Dr. Abdul Moiz's notes indicate consideration of the 2003 procedure and its comparison to the 2005 procedure. Accordingly, although Dr. Stewart was not available to personally testify he relied in part on Exhibit H in making his decision to use the Duett closure device, there was sufficient evidence that he did. Further, there was expert testimony it was common practice to look at a patient's previous records and especially so in this particular instance of a second cardiac catheterization. From this evidence, the jury could have reasonably inferred Dr. Stewart looked at and considered Harris's 2003 VA records prior to performing the 2005 procedure in determining the best method for closure. Townsend v. Eastern Chemical Waste Systems, 234 S.W.3d 452, 464–65 (Mo.App.W.D.2007). The trial court did not abuse its discretion in allowing Exhibit H into evidence, as part of Harris's medical records. Ziolkowski, 317 S.W.3d at 216. Point I is denied.
Appellant also claims the trial court erred in admitting Exhibit C, Dr. Stewart's addendum to the 2005 cardiac catheterization
report on Harris, indicating:
After the catheterization
was completed a left femoral angiogram was performed for consideration for vascular closure.... The common femoral was felt to be appropriate for some vascular closure.... He also was noted to be moving around and could compromise a manual pull to his left femoral artery. He was noted to have...
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