Cline v. William H. Friedman & Associates, Inc.

• Decision Date: 30 August 1994
• Docket Number: No. 64481,64481
• Citation: 882 S.W.2d 754
• Court: Missouri Court of Appeals
• Parties: Peggy L. CLINE, Respondent, v. WILLIAM H. FRIEDMAN & ASSOCIATES, INC., d/b/a Park Central Institute, Appellant.

Page 754

882 S.W.2d 754

Peggy L. CLINE, Respondent, v. WILLIAM H. FRIEDMAN & ASSOCIATES, INC., d/b/a Park Central

Institute, Appellant.

No. 64481.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 30, 1994.

Robert C. Seibel, Jr., Curtis R. Bailey, Clayton, for appellant.

Morris Chapman, Granite City, IL, Mellissa Chapman, Clarence Harrison, St. Louis, for respondent.

CARL R. GAERTNER, Judge.

Defendant, William H. Friedman & Associates, Inc., d/b/a Park Central Institute, appeals from a judgment in favor of plaintiff, Peggy Cline, in the amount of $536,750 in a medical malpractice action. We reverse and remand.

On February 1, 1988, plaintiff consulted with William H. Friedman at the Park Central Institute ¹ about her desire for corrective eyelid surgery. Plaintiff was concerned that her eyelids were sagging, making her look old and tired. After conducting a physical examination, Dr. Friedman recommended that plaintiff undergo bilateral blepharoplasty, a surgical procedure in which excess skin, tissue and fat is removed from both the upper and lower eyelids. Plaintiff consented, and Dr. Friedman scheduled the surgery for February 15, 1988. Dr. Friedman claims he also explained to plaintiff that blepharoplasty involves the risks of blindness, infections, allergic reactions to anesthesia, and temporary lagophthalmus. ² Plaintiff, however, testified that the doctor did not inform her of the risk of lagophthalmus.

Dr. Friedman performed the blepharoplasty without any complications. After a brief stay in the recovery room, plaintiff returned home. Later that evening, plaintiff discovered that she could not completely close her eyelids and that her upper lids would spasm when she attempted to close them, forcing her to tape shut the lids in order to sleep.

Plaintiff returned the next day for a follow-up visit. She claims she told Dr. Friedman she could not completely close her eyelids. Dr. Friedman, however, testified that plaintiff never expressed a complaint and that he noted no problems after examining her. Dr. Friedman again examined plaintiff on February 22, 1988, and noted no problems. Plaintiff, however, testified that she complained she still could not close her eyes and her vision was blurred. On February 29, 1988, an ophthalmologist examined plaintiff and prescribed a lubricating ointment to treat her symptoms. On March 7, 1988, plaintiff returned to see Dr. Friedman and expressed a number of complaints, including an inability to close her eyelids, blurred vision, eye dryness, near blindness and depression. The doctor examined her, noted that her eyes were inflamed and diagnosed plaintiff as having bilateral lagophthalmus. Concerned that she might have corneal exposure, ³ he referred plaintiff to an ophthalmologist, Dr. Frank O'Donnell.

Plaintiff went to O'Donnell's office, and Dr. Byron Santos examined her. He recommended that she continue patching her eyes at night and that she apply lubricating drops and a prescribed lubricating ointment on her eyes. Plaintiff went to another ophthalmologist, Dr. Michael Beatty, on March 10, 1988. Beatty examined plaintiff, concurred with Santos' recommendations and also advised that she massage cocoa butter on her upper eyelids.

Dr. Friedman examined plaintiff for the last time on March 14, 1988. During this visit, plaintiff complained of retro-orbital pain, blurred vision, and scratchiness in her eyes. When plaintiff attempted to close her eyes, the upper lids would flutter. The doctor noted that her eyelids appeared to be healing properly, her eyes were tearing properly, she could achieve almost total eyelid closure, and he could achieve total closure by exerting gentle pressure on her brow.

From March 15, 1988, until January 1993, plaintiff was examined by a number of eye specialists. These specialists did not change her treatment, and they all observed varying degrees of lagophthalmus and corneal exposure in the lower portion of plaintiff's corneas.

After a five-day jury trial, the jury returned a verdict in favor of plaintiff for $674,750. The trial court remitted $138,000 as being in excess of the maximum recovery allowable for non-economic damages in a medical malpractice case, § 538.215 RSMo.1986, and denied defendant's motions for new trial, for judgment notwithstanding the verdict and for further remittitur. This appeal followed.

I. Submissible Case

In its first point, defendant claims the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict because plaintiff failed to make a submissible case of negligence.

In determining whether plaintiff made a submissible case, we must consider the evidence and all reasonable inferences therefrom in the light most favorable to plaintiff, disregarding all evidence contrary to her claim. Adams v. Children's Mercy Hospital, 848 S.W.2d 535, 547 (Mo.App.1993). If it may be fairly inferred that defendant was negligent, the evidence is sufficient. However, if the jury can only determine the question of negligence by resorting to conjecture and surmise, plaintiff has failed to make a submissible case. Pettet v. Bieterman, 718 S.W.2d 188, 189-90 (Mo.App.1986).

To make a submissible claim of medical malpractice, plaintiff must establish that defendant's acts or omissions: (1) failed to meet the requisite standard of care; (2) were performed negligently; and (3) caused her alleged injuries. MacDonald v. Sheets, 867 S.W.2d 627, 630 (Mo.App.1993). Generally, in a medical malpractice case, plaintiff must introduce expert testimony to prove that defendant failed to exercise the degree of skill and care ordinarily used under the same or similar circumstances by members of his or her profession. Id.

In the present case, plaintiff offered the expert testimony of Dr. Martin Feurman, an ophthalmologist, to establish Dr. Friedman's deviation from the standard of care. Feurman testified that virtually every eye specialist that examined plaintiff after the blepharoplasty noted that: (1) plaintiff was unable to close her eyelids completely because her upper lids were too short to cover her corneas; (2) too much skin had been removed from plaintiff's upper lids; (3) plaintiff had corneal exposure in the lower portion of her eyes; and (4) the lower portion of plaintiff's corneas had a similar pattern of fissures, cracks and scratches.

Feurman testified that according to some medical publications excessive removal of eyelid skin may result in inadequate eyelid closure with corneal exposure. After examining plaintiff prior to trial, Feurman noted that plaintiff had corneal exposure in the lower portion of her corneas with the same pattern of cracks and breaks that her treating physicians had observed. Feurman pointed out that the pattern and location of plaintiff's corneal exposure indicated that the cause was not medication but excessive resection of the upper lids. Feurman then concluded that Dr. Friedman's performance of the blepharoplasty fell below the standard of care "[b]ecause the lid is too short, the cornea's been exposed and this is an indication that too much tissue was removed."

Defendant argues that plaintiff failed to offer evidence that Dr. Friedman breached the standard of care because Feurman's opinion was based solely on the adverse result of the blepharoplasty. Defendant claims this failure to establish a breach of the standard of care was exhibited in the following exchange during the cross-examination of Feurman Q: [by defendant's attorney] Now sir, can you quantify for me how much skin, tissue and fat Mrs. Cline needed to have removed from her right eyelid?

A: You can't quantify that. It's a judgment call and you're using forceps and lifting up tissue to make a pleat. You mark that and then you excise that, and each person is different. And in fact probably both eyelids would be a different exact amount. There is no rule or formula you can use.

Q: So as you sit here today, you can't tell me how much skin needed to be removed from either the right eye or left eye of Mrs. Cline during her blepharoplasty?

A: I can only tell you a month later if too much skin was taken out or a year later. I couldn't tell you at the time of surgery. That's the judgment of the person doing the surgery.

Q: And sir, as you sit here today you cannot tell me how much skin or tissue my client removed during the blepharoplasty, can you?

A: He didn't say in his operative report. He didn't say.

Q: And you don't know?

A: I don't know how much he took out.

Q: The only thing you're going by, sir, is the end result?

A: Correct.

In a medical malpractice action, a presumption of negligence based solely on an adverse result is not permitted. Barr v. Plastic Surgery Consultants, Ltd., 760 S.W.2d 585, 590 (Mo.App.1988); Miller v. Scholl, 594 S.W.2d 324, 329 (Mo.App.1980). "Proof of facts essential to submissibility of a case may not rest on speculation or conjecture." Mills v. Redington, 736 S.W.2d 522, 524 (Mo.App.1987). However, an adverse result is a fact which may be considered, provided it does not constitute the complete basis for the expert opinion. Barr, 760 S.W.2d at 590.

Plaintiff clearly did not present the speculative proposition that Dr. Friedman negligently performed the blepharoplasty simply because she suffered a bad result following the surgery. Feurman repeatedly testified that the doctor removed too much skin and tissue from plaintiff's upper lids. He clearly and unequivocally explained that he reached this conclusion based upon medical publications, the treating physicians' records and his own examination of plaintiff.

Contrary to defendant's argument, there is nothing sinister in Feurman's inability to quantify the amount of skin and tissue Dr. Friedman removed and the amount he should have removed from plaintiff's eyelids. As Feurman testified, the appropriate amount of skin and tissue that should be excised during a blepharoplasty varies with...