Cooper v. Ketcherside, WD

• Citation: 907 S.W.2d 259
• Decision Date: 26 September 1995
• Docket Number: No. WD,WD
• Parties: John E. COOPER, et al., Respondents, v. W. Joseph KETCHERSIDE, M.D., Appellant. 49697.
• Court: Court of Appeal of Missouri (US)

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907 S.W.2d 259 John E. COOPER, et al., Respondents,
v.
W. Joseph KETCHERSIDE, M.D., Appellant. No. WD 49697. Missouri Court of Appeals,
Western District. Sept. 26, 1995.

J. Michael Shaffer, Gregory P. Forney, Kansas City, for appellant.

Walter R. Simpson, Sanders & Simpson, Kansas City, for respondents.

Before ULRICH, P.J., and LOWENSTEIN and ELLIS, JJ.

ELLIS, Judge.

John E. Cooper and his wife, Betty Lou Cooper, brought a medical malpractice action against W. Joseph Ketcherside, M.D. ¹ The case was tried to a jury which returned a verdict for Dr. Ketcherside. Cooper filed a Motion for New Trial which was sustained by the court. Dr. Ketcherside appeals.

On June 7, 1988, Dr. Ketcherside performed spinal surgery on Cooper. Dr. Ketcherside discovered he had to use an Anspach surgical drill to remove bone material

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from a vertebra. During the removal of the bone, the drill pierced an unprotected area of the dura and severed some nerves. As a result, Cooper is impotent, and his bowel and bladder control is impaired.

The Coopers filed a petition alleging that Dr. Ketcherside was negligent in that he lacked proper and adequate training in the use of the drill, failed to use the drill properly, failed to advise Cooper of the risks associated with using the drill, and failed to obtain his informed consent. At trial, under cross-examination by his own attorney, ² Dr. Ketcherside stated that in his opinion he had complied with the standard of care regarding informed consent. Subsequently when Cooper's expert, Dr. Donald C. Austin, was to testify, Dr. Ketcherside filed a motion in limine seeking to prohibit Dr. Austin from testifying as to the standard of care when obtaining a patient's informed consent. The court sustained the motion, expressly finding that Dr. Austin's testimony on that issue was not permissible under Rule 56.01(b)(4) because Dr. Austin had neither disclosed an opinion regarding informed consent and the applicable standard of care for obtaining a patient's informed consent during his deposition nor provided a supplement to his deposition testimony. Cooper then made an offer of proof with Dr. Austin and, afterwards, asked the court to reconsider its decision to exclude Dr. Austin's testimony addressing the issue of informed consent. The court affirmed its earlier ruling. Subsequently, Dr. Ketcherside showed to the jury a videotaped deposition of his expert, Robert Morantz, M.D., in which Dr. Morantz stated that in his opinion Dr. Ketcherside had met the standard of care in obtaining Cooper's informed consent.

Prior to closing arguments, the court held an instruction conference at which the informed consent portion of the verdict director was removed over Cooper's objection. The jury returned a verdict in favor of Dr. Ketcherside. Cooper subsequently filed a motion for new trial. After a hearing, the trial court granted the motion based solely on its belief that Dr. Austin should have been allowed to testify on the issue of informed consent and that had he been allowed to do so, the issue of informed consent could have been submitted to the jury. Dr. Ketcherside now appeals.

"On a motion for new trial, a trial court may reconsider its rulings on discretionary matters and may order a new trial if it believes its discretion was not wisely exercised and that the losing party was thereby prejudiced." State ex rel. Missouri Highway & Transp. Comm'n v. Pedroley, 873 S.W.2d 949, 953 (Mo.App.1994). The admissibility of evidence, including the testimony of an expert, is a matter within the discretion of the trial court. See King v. Copp Trucking, Inc., 853 S.W.2d 304, 307 (Mo.App.1993). Therefore, on review, we are limited to determining whether the trial court abused its discretion in finding prejudice. Pedroley, 873 S.W.2d at 953. We have previously stated:

Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to...