Cook v. Newman

• Decision Date: 27 July 2004
• Docket Number: No. WD 62634.,WD 62634.
• Parties: Clarence COOK, et al., Respondents, v. Joseph NEWMAN, M.D., et al., Appellants, Alan Buchele M.D. and Alan Buchele M.D., P.C., Defendants.
• Court: Missouri Court of Appeals

142 S.W.3d 880

Clarence COOK, et al., Respondents, v. Joseph NEWMAN, M.D., et al., Appellants Alan Buchele M.D. and Alan Buchele M.D., P.C., Defendants.

No. WD 62634.

Missouri Court of Appeals, Western District, En Banc.

July 27, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 31, 2004.

Application for Transfer Denied September 28, 2004.

Appeal from the Circuit Court, Jackson County, Justine Elisa Del Muro, J Charles H. Stitt, Kansas City, MO, for Appellant.

Michelle Boehm O'Neal, Joplin, MO, for Respondents.

Before JOSEPH M. ELLIS, C.J., HAROLD L. LOWENSTEIN, ROBERT G. ULRICH, PAUL M. SPINDEN, JAMES M. SMART, JR., EDWIN H. SMITH, VICTOR HOWARD, THOMAS H. NEWTON, RONALD R. HOLLIGER, LISA WHITE HARDWICK, JJ., and WILLIAM E. TURNAGE, SR. J.

ROBERT G. ULRICH, Judge.

Joseph Newman, M.D., Walter Dandridge, Jr., M.D., and Joplin Surgical Associates, Inc. ("JSA")(collectively "Appellants") appeal the trial court's amended judgment entered upon jury verdict in favor of Clarence Cook, Clarence Cook, Jr., and Eugenia White (collectively "Respondents") in the amount of $7,281,886.30 in this medical malpractice action. This appeal involves section 538.210,¹ which limits the recovery for noneconomic damages from a defendant ("cap"). Appellants claim that the trial court erred in calculating the number of statutory caps on noneconomic damages to be applied in the case. Appellants also claim that the trial court erred in applying the cap amount in effect at the time of trial rather than the cap amount in effect at the time of the occurrence. The judgment of the trial court is reversed, and the case is remanded with directions.

Facts

In July 2000, Respondents filed this medical malpractice action against Appellants for the wrongful death of Ruth Cook, their spouse and mother. They alleged that Ms. Cook underwent a laparoscopic cholecystectomy on April 6, 1998, and that as a result of Dr. Newman's and Dr. Dandridge's negligent care of her, she developed symptoms of peritonitis and died on June 17, 1998.²

The verdict director against Dr. Newman and JSA directed the jury to find for Respondents if it believed:

First, either:

defendant Joseph Newman, M.D. injured Ruth Cook's duodenum while performing a laparoscopic cholecystectomy on April 6, 1998, or,

defendant Joseph Newman, M.D. failed to inspect and test for injury to Ruth Cook's duodenum during the laparoscopic cholecystectomy on April 6, 1998, or defendant Joseph Newman, M.D. failed to timely repair Ruth Cook's duodenum after the laparoscopic cholecystectomy on April 6, 1998, or

defendant Joseph Newman, M.D. failed to adequately repair Ruth Cook's duodenum during the surgery performed on April 7, 1998, or

defendant Joseph Newman, M.D. failed to order diagnostic testing to determine the adequacy of the April 7, 1998 repair, or,

defendant Joseph Newman, M.D. failed to reoperate on Ruth Cook after April 7, 1998.

Furthermore, to return a verdict for Respondents, the jury was required to find that Dr. Newman was negligent in any one or more of the respects submitted and that such negligence directly caused or directly contributed to cause the death of Ruth Cook.

The verdict director against Dr. Dandridge and JSA directed the jury to find for Respondents if it believed:

First, defendant Walter C. Dandridge, M.D. failed to test or reoperate or recommend reoperation or testing to determine the adequacy of the April 7, 1998 repair on April 16th, or April 25th, or April 26th, or May 14th, or May 15th, or June 2nd, or June 9th, or June 14th, 1998, when he provided care to Ruth Cook.

Furthermore, to return a verdict for Respondents, the jury was required to find that Dr. Dandridge was negligent in any one or more of the respects submitted and that such negligence directly caused or directly contributed to cause the death of Ruth Cook.

The jury returned verdicts in favor of Respondents on the claim against Dr. Newman and JSA and on the claim against Dr. Dandridge and JSA. It awarded Respondents past economic damages in the amount of $717,886.31 and past and future noneconomic damages in the amount of $7,282,113.69 for total damages in the amount of $8,000,000. The trial court entered judgment in favor of Respondents in accordance with the jury's verdict.

Thereafter, Appellants filed their motion for judgment notwithstanding the verdict or, in the alternative, for new trial or, in the alternative, to modify the judgment. In their post-trial motion, Appellants contended, in pertinent part, that the judgment amount should be reduced to $1,230,886.31 to reflect the sum of the economic damages assessed by the jury together with one cap amount for noneconomic damages pursuant to section 538.210. They argued that the appropriate maximum awarded for noneconomic damages should be calculated on the basis that the three persons joining in the wrongful death action constitute one plaintiff; only one occurrence was determined by the jury, that being the death of Ruth Cook; Dr. Newman, Dr. Dandridge, and JSA constitute one defendant as the term "defendant" is defined in section 538.210; and the applicable cap amount for events that occurred in 1998 is $513,000. Appellants attached to their post-trial motion an affidavit of Dr. Newman stating that at all times referenced in the petition, JSA was a Missouri corporation; at all such times, JSA was engaged in the business of providing health care services, by and through licensed medical practitioners (including Dr. Newman and Dr. Dandridge); at all times from April 6, 1998, Dr. Newman and Dr. Dandridge were employed by JSA; and at all times from April 6, 1998, Dr. Newman and Dr. Dandridge were insured under a professional liability insurance policy issued to JSA.

Following a hearing on the post-trial motion, the trial court entered an order declaring that each of the three persons joining in the wrongful death action constitute a plaintiff as that term is used in section 538.210; cap amounts shall be awarded for two occurrences because the jury returned verdicts against Dr. Newman and JSA and against Dr. Dandridge and JSA for separate and distinct acts of negligence; JSA, Dr. Newman, and Dr. Dandridge constitute separate defendants under section 538.210; and the applicable cap amount is $547,000, the amount in effect at the time of the verdict, which was greater than the cap amount at the time of the occurrences for which suit was filed. The court, therefore, concluded that Respondents shall collect noneconomic damages equal to twelve cap amounts. The same day, the trial court entered its amended judgment reducing noneconomic damages to $6,564,000 for total damages in the amount of $7,281,886.30. It also allocated the proceeds of the judgment after attorneys' fees and expenses at 50% to Clarence Cook, 25% to Clarence Cook, Jr., and 25% to Eugenia White. This appeal by Drs. Newman and Dandridge and JSA followed.

Standard of Review

Appellants' appeal asserts that the trial court misinterpreted and misapplied section 538.210. The interpretation of a statute is a question of law; therefore, appellate review is de novo. Knob Noster Educ. v. Knob Noster R-VIII Sch. Dist., 101 S.W.3d 356, 360 (Mo.App. W.D.2003). The primary rule in statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 251 (Mo. banc 2003), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). When the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous. Stotts v. Progressive Classic Ins. Co., 118 S.W.3d 655, 664 (Mo.App. W.D.2003)(quoting Ozark Wholesale Beverage Co. v. Supervisor of Liquor Control, 80 S.W.3d 491, 497 (Mo.App. W.D.2002)). Ambiguity means "duplicity, indistinctness or uncertainty of meaning of an expression." J.B. Vending Co. v. Dir. of Revenue, 54 S.W.3d 183, 188 (Mo. banc 2001)(quoting Lehr v. Collier, 909 S.W.2d 717, 721 (Mo.App. S.D.1995)). "The issue is not whether a particular word in a statute, considered in isolation, is ambiguous, but whether the statute itself is ambiguous." Id. at 187. Thus, the meaning of a particular word must be considered in the context of the entire statute in which it appears. Id. Only when a statute is ambiguous can the rules of statutory construction be applied. Stotts, 118 S.W.3d at 664 (quoting Ozark Wholesale Beverage, 80 S.W.3d at 497). "In construing an ambiguous statute, the ultimate guide is the intent of the legislature." Long v. Interstate Ready-Mix, L.L.C., 83 S.W.3d 571, 577 (Mo.App. W.D.2002)(quoting Lincoln Indus., Inc. v. Dir. of Revenue, 51 S.W.3d 462, 465 (Mo. banc 2001)).

Plaintiffs

In the first point addressed in this appeal,³ Appellants claim that the trial court erred in determining that Clarence Cook, Clarence Cook, Jr., and Eugenia White each constitute a plaintiff for purposes of applying the statutory cap for noneconomic damages under section 538.210. They contend that all the wrongful death claim beneficiaries constitute a single plaintiff within the meaning of section 538.210.

Section 538.210.1 provides:

In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars per occurrence for noneconomic damages from any one defendant as defendant is defined in subsection 2 of this section.

Chapter 538 does not, however, define the term "plaintiff." Respondents argue that the term should, therefore, be construed according to its plain and ordinary meaning citing Wright v. Barr, 62 S.W.3d 509, 536 (Mo.App. W.D.2001).

In Wright, Virginia Wright...