Coon v. Dryden and Fotopoulos

• Decision Date: 17 April 2001
• Citation: 46 S.W.3d 81
• Parties: (Mo.App. S.D. 2001) Paula Diane Coon, Respondent v. William J. Dryden, D.O., and C.K. Fotopoulos, M.D., Appellants, and Lake of the Ozarks General Hospital, Defendant. WD57866 0
• Court: Missouri Court of Appeals

46 S.W.3d 081 (Mo.App. S.D. 2001)

Paula Diane Coon, Respondent v. William J. Dryden, D.O., and C.K. Fotopoulos, M.D., Appellants, and Lake of the Ozarks General Hospital, Defendant.

WD57866

Missouri Court of Appeals Western District

04/17/2001

Appeal From: Circuit Court of Miller County, Hon. James F. McHenry

Counsel for Appellant: Susan Ford Robertson

Counsel for Respondent: Christopher J. Jordan

Opinion Summary: William J. Dryden, D.O., and C.K. Fotopoulos, M.D., appeal from the judgment following jury trial in favor of Paula Diane Coon in the amount of $100,000 in her medical malpractice action.

REVERSED AND REMANDED.

Division One holds: The case is reversed and remanded for entry of JNOV in favor of Dr. Fotopoulos and for a new trial on the claims against Dr. Dryden.

(1) Where the trial court's April 27, 1997 judgment was not final, the trial court retained jurisdiction over the case to dispose of all issues. While the court mislabeled the October 13, 1999 judgment, the error was harmless because the court followed proper procedure.

(2) Dr. Fotopoulos was not involved in diagnosing Ms. Coon's condition or recommending the appropriate surgery to treat the condition. Dr. Fotopoulos was recruited shortly before the surgery was to commence to assist Dr. Dryden in performing the surgery Dr. Dryden determined was appropriate. Dr. Fotopoulos had no control over and no authority to contravene Dr. Dryden's decision on what surgery to perform. Dr. Fotopoulos saw no indication during the surgery that Ms. Coon suffered from chronic PID necessitating performance of a total hysterectomy. Accordingly, Ms. Coon failed to make a submissible case against Dr. Fotopoulos under the theory of joint and several liability, and the trial court erred in denying his motion for JNOV.

(3) Where Ms. Coon continued to experience pain from PID after the 1986 surgery and her medical expert testified that the doctors' negligence did cause her to suffer injury, Ms. Coon made a submissible case of causation against Dr. Dryden, regardless of the fact that evidence also existed that Ms. Coon may have suffered pain from an ovarian cyst.

(4) Where the verdict director removed from the jury's consideration the disputed ultimate fact of whether Ms. Coon suffered from chronic PID, the instruction constituted a roving commission. The jury's verdict is reversed, and the case is remanded for a new trial on the claims against Dr. Dryden.

Robert G. Ulrich, J.

William J. Dryden, D.O. and C.K. Fotopoulos, M.D. appeal from the judgment following jury trial in favor of Paula Diane Coon in the amount of $100,000 in her medical malpractice action. The doctors raise four points of error on appeal. They contend that the trial court erred in (1) entering the order and judgment nunc pro tunc and denying their motion to set aside or vacate because the record did not support the court's judgment nunc pro tunc specifying the resolution of the multiple counts in the petition against them; (2) denying their motions for directed verdict and judgment notwithstanding the verdict (JNOV) because Ms. Coon failed to make a submissible case as to causation; (3) denying Dr. Fotopoulos's motion for directed verdict and JNOV because Ms. Coon failed to make a submissible case as to the standard of care applicable to an assisting surgeon; and (4) submitting Instructions No. 8 and 9 because the instructions were vague and confusing and gave the jury a roving commission. The judgment of the trial court is reversed, and the case is remanded for entry of JNOV in favor of Dr. Fotopoulos and for a new trial on the claims against Dr. Dryden.

Facts

Paula Coon sued Drs. William J. Dryden and C.K. Fotopoulos and another defendant¹ for damages arising from a surgery performed by the doctors on June 23, 1986. In her petition, Ms. Coon alleged medical negligence and failure to obtain an informed consent. The allegations included that the doctors breached their obligation to treat and cure her known, long-standing medical condition involving her female reproductive system by a total hysterectomy with bilateral oophorectomy and salpingectomy;² that the doctors violated a well-established standard of medical care by failing to know and consider her medical history before conducting the surgery and, as a result, they performed the wrong surgery to cure her; and that Dr. Dryden failed to obtain an informed consent for the surgery he did perform, a pelvic laparotomy with right oophorectomy and left ovarian wedge resection³ in that he failed to inform her of alternative surgeries she might receive other than the total abdominal hysterectomy. Ms. Coon alleged that the doctors' negligence directly caused her to suffer injuries including the pain and expense of undergoing the 1986 surgery, the pain and discomfort she experienced from the recurrence of her pelvic infectious disease after the 1986 surgery, and the pain and expense of undergoing another surgery in 1987.

At trial, Ms. Coon's theory of negligence was that she suffered from chronic Pelvic Inflammatory Disease (PID), that in June 1986 she sought from Drs. Dryden and Fotopoulos the definitive cure for the disease, a total abdominal hysterectomy, and that the doctors' failure to perform the surgery constituted negligence. She also alleged that Dr. Dryden was negligent in failing to obtain an informed consent for the surgery that was performed. Ms. Coon testified that since 1973, she had had problems with her female reproductive system including vaginal discharge, abdominal pain, painful sexual intercourse, ovarian cysts, and infections. She saw her family doctor, Dr. Otis Moseley, several times between 1973 and 1986 for these symptoms. Ms. Coon testified that she also experienced additional problems during this time. In 1977, she had a baby and because of infection, the baby was delivered by C-section. In 1978, Ms. Coon had an IUD inserted but it was removed later the same year because of infection. Ms. Coon also had surgery in 1978. She explained that Dr. Fotopoulos performed an exploratory pelvic laporatomy with right salpingectomy⁴ and appendectomy due to a large abscess in her right tube. In 1979, Ms. Coon became pregnant. The pregnancy, however, ended in a miscarriage. She had another miscarriage in 1980, and Dr. Fotopoulos performed a D&C at that time.

Ms. Coon testified that she again saw Dr. Moseley in June 1986 when she began experiencing more pain than usual. Dr. Moseley ordered an ultrasound and referred her to Dr. Fotopoulos. Ms. Coon saw Dr. Dryden, who was an employee of Dr. Fotopoulos's professional corporation, for the first time on June 18, 1986. She testified that Dr. Dryden examined her, told her she had "quite a bit of infection," and suggested a hysterectomy. After receiving a second opinion the next day, Ms. Coon returned to Dr. Dryden's office on June 20, 1986, to set a date for surgery. She testified that she told Dr. Dryden about all of the problems she had had in the past with her reproductive system and that she wanted a total hysterectomy and that Dr. Dryden told her that he would perform a hysterectomy. Prior to the surgery on June 23, 1986, Ms. Coon was presented by hospital employees with blank consent forms, which she signed. She stated that Dr. Dryden only informed her that he would perform a total abdominal hysterectomy, that he never explained to her that alternative surgeries other than a total hysterectomy were possible, and that had she known other surgeries were possible, she would not have consented to surgery because she only wanted a total hysterectomy to cure her chronic problems.

Finally, Ms. Coon testified that when she awoke after the surgery, she learned that the doctors had not performed a total hysterectomy but instead performed a pelvic laparotomy with right oophorectomy and left ovarian wedge resection. She then explained that shortly after the June 1986 surgery, she again began to experience abdominal pain, vaginal discharge, and painful sexual intercourse. She experienced these problems occasionally for the next year and eventually saw Dr. William Marshall, who diagnosed her with chronic pelvic pain and recurrent functional ovarian cysts. In July 1987, Dr. Marshall performed a total hysterectomy. Ms. Coon further testified that she did not experience any of the symptoms after the 1987 surgery and that she believed that the 1987 surgery cured her chronic PID.

Ms. Coon's medical expert, Dr. Arthur Newcomb, explained that the symptoms of chronic PID are lower abdomen and pelvic pain, vaginal discharge, and chronic infection. He opined based on a reasonable degree of medical certainty that Ms. Coon suffered from chronic PID in 1986 and that a total abdominal hysterectomy was the definitive cure for the malady. Dr. Newcomb testified that Drs. Dryden and Fotopoulos breached the applicable standard of care in treating Ms. Coon's chronic PID. He opined that their performance of a pelvic laparotomy with right oophorectomy and left ovarian wedge resection instead of a total abdominal hysterectomy on a patient with chronic PID violated the standard of care. Dr. Newcomb further testified that the doctors breached the applicable standard of care in obtaining an informed consent for a surgical procedure by failing to explain possible alternative surgeries. Dr. Newcomb concluded that as a result of the doctors' negligence, Ms. Coon suffered damages including the pain and expense of undergoing the surgery in 1986, the pain and discomfort she experienced from recurrence of the PID after the 1986 surgery, and the pain and expense of undergoing the second surgery in 1987.

Dr. Dryden testified that Ms. Coon first came to him on June 18, 1986, with complaints of right side pelvic pain and a complex mass on her right ovary that suggested ovarian cancer. Ms. Coon returned to Dr. Dryden's office on June 20, 1986, after receiving a second opinion. On that day, Dr. Dryden recommended to Ms....