Cress v. Mayer, WD

• Decision Date: 22 December 1981
• Docket Number: No. WD,WD
• Citation: 626 S.W.2d 430
• Parties: John D. CRESS and Dianna M. Cress, Plaintiffs-Respondents, v. John H. MAYER, III, M. D., Defendant-Appellant. 31656.
• Court: Missouri Court of Appeals

Page 430

626 S.W.2d 430

John D. CRESS and Dianna M. Cress, Plaintiffs-Respondents, v. John H. MAYER, III, M. D., Defendant-Appellant.

No. WD 31656.

Missouri Court of Appeals, Western District.

Dec. 22, 1981.

John E. Redmond, Kansas City, for defendant-appellant.

Michael Callen, Barnett & Lerner, Chartered, Ronald J. Stites, Ronald R. Holliger, Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, for plaintiffs-respondents.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

DIXON, Judge.

Defendant appeals from a jury verdict in favor of plaintiffs in a suit for medical malpractice. The jury awarded $325,000 to John Cress and $7,500 to his wife, Dianna Cress.

The issues on appeal synoptically stated are claims of error in submission of issues not supported by evidence or within pleadings and therefore barred by the statute of limitations, error in instructions, improper impeachment of a witness, improper argument as to witnesses said to be equally available and excessiveness of verdict.

John Cress was operated on by the defendant on April 16, 1973. For injuries arising from what Cress alleges was the malpractice of the defendant doctor, this lawsuit ensued.

John Cress' symptoms developed in the spring of 1973 when he began having a shocking sensation in his neck and chest when he turned his head from one side to the other. He first sought medical attention at the Research Medical Center emergency room where he was advised to see an orthopedic surgeon. Cress was examined the following day, March 19, 1973, by Dr. Martin Evenson, an orthopedic surgeon. Evenson diagnosed the plaintiff's problem as severe muscle strain on the left shoulder and suggested that Cress obtain therapy at the Ford plant, plaintiff's place of employment.

Cress was also examined by his family doctor, Dr. Charles Empson, who prescribed muscle relaxants. The testimony of John and Dianna Cress conflicted as to the exact date of that visit, but it was uncontradicted that it took place immediately prior to or right after his first visit to the defendant.

Cress first saw the defendant, Dr. Mayer, III, on March 23, 1973, because he was experiencing chest pains. Plaintiff had been a patient of defendant's associate, Dr. Benoit, when his lung collapsed in 1969. Benoit had treated him at that time without surgery. Evenson, the orthopedic surgeon suggested he see his "lung doctor" because of the chest pains.

There was conflicting evidence regarding plaintiff's March 23rd visit to the defendant. John Cress testified that the defendant examined him by raising his arm, turning his head from left to right and listening to a stethoscope, which lasted approximately 5-6 minutes. After taking plaintiff's medical history, the defendant told plaintiff he had thoracic outlet syndrome. Defendant doctor explained that plaintiff had an extra rib which was pressing on an artery and vein and that he might lose his arm if the rib were not removed. They discussed the operation which consisted of "just a two-inch incision underneath the arm and go up with a special little tool and cut the rib out and bring it back out and no problems." The defendant doctor did not inform plaintiff of any risks involved in the surgery except that it was a simple operation and there was a one in a million chance of death. The defendant doctor told plaintiff that physical therapy would not help and at that time scheduled surgery to remove the rib.

Dianna Cress testified that the defendant explained that John had an extra rib which was resting on an artery, that John would not respond to physical therapy or chiropractic adjustment, and that the defendant wanted to schedule surgery to remove the rib right away. The defendant said the operation was simple, that it would be done a new way by making a small incision underneath his arm, going in with a tool and removing the rib. Surgery was scheduled on that date for April 16, 1973.

The defendant, Dr. Mayer, III, testified that he performed a complete history and physical examination on Cress on March 23, 1973. He conducted Adson maneuvers, which consist of raising the arms, turning the head from one side to the other, putting the shoulder in different positions, and simultaneously feeling the pulse to test the blood supply to the arm. He took Cress' blood pressure and found that the defendant did not have a pulse in his "left upper extremity" when his arm was raised. The examination further revealed a bruit, which indicates blood going through a compressed artery, over the left collarbone when Cress' arm was elevated.

The defendant testified that he diagnosed Cress' symptoms as severe thoracic outlet syndrome and prescribed surgery to remove the first rib. He did not prescribe any other kind of treatment and stated that physical therapy would "absolutely not" have helped. If the surgery were not performed, there was a risk that the problem would be aggravated with time and, more importantly, that a blood clot could form in approximately four minutes if the patient slept with his arm above his head. The defendant testified that he advised the plaintiff of the risks involved in the surgery: sudden death from anesthetic complications, "fibulation" of the heart, infection, artery clotting, danger to the nerves, numbness, paralysis, and loss of life or limb.

The defendant examined the records of plaintiff's visit to the Research Hospital emergency room before performing the surgery, but did not look at the records of Dr. Evenson, the orthopedic surgeon because "it had no bearing on the problem." The records from Research Hospital indicated that plaintiff had a negative Adson sign on March 18, 1973, which defendant conceded was not consistent with severe thoracic outlet syndrome. Defendant agreed with the statement that "notwithstanding what the emergency room records said ... and Dr. Evenson, as long as (he-defendant doctor ) made that finding that was the finding."

The defendant did not examine the plaintiff again after the March 23rd visit before the surgery on April 16th. The defendant stated it was not possible for the Adson maneuvers to be negative or the bruit to be absent upon a second examination. During that three-week period, Cress resumed his everyday activities but did not go to work because the defendant put him "on a medical." Dianna Cress testified that he appeared to get better every day and was not complaining.

Cress stated that he did not see a doctor on April 14, 1973, when he entered the hospital, nor on April 15th, nor on April 16th, after the surgery; but the defendant stated that he had a conversation with Cress in the hospital either April 14 or April 15. The defendant did not examine Cress after the surgery while he was in the hospital.

The defendant was examined by Dr. Mayer, Jr., (Defendant's father), and Dr. Benoit on the two days following surgery, and he complained to them that his arm was numb and tingling, beginning to burn, and he was only able to move his fingers. Plaintiff was released from the hospital three days after the surgery. He called defendant at his office that day because his incision was red and swollen and was "stinging." He did not visit defendant's office until April 24, 1973, when he was examined by Dr. Mayer, Jr., who removed the stitches. After that visit Cress had daily telephone conversations with the defendant because the incision was "pulling and oozing and the stitches were opening up." By the end of the week, the incision was two inches in diameter and at the next office visit on April 27th, Dr. Benoit packed the wound with sterile stripping. Defendant examined Cress on May 1, 1973, for the first time after the surgery and continued to pack his wound with sterile stripping until plaintiff's office visit on May 15, 1973. Defendant stated that the wound was healing at that time and Cress had full range of motion in his upper left extremity. The defendant released him to return to work on May 21, 1973. The defendant stated that the wound was not infected before May 15, 1973, that he did not order a complete blood count or culture to determine if it was infected, and that he never advised Cress of the possibility of infection. He stated that "(I)f (he) had one thousand patients with the insignificant wound (Cress) had one would expect a very small number to complain as vociferously as he was."

After Cress returned to work, his arm continued to weaken and became smaller. He was examined by the defendant on August 7, 1973, and the defendant referred him to a neurosurgeon, an associate of Dr. Clough. The defendant stated that he did not observe the muscle wasting at that time, although his letter of that date to Dr. Clough's associate stated that the plaintiff had noticed "what apparently is some left deltoid wasting."

Dr. Clough testified that he first examined Cress on August 13, 1973. It was Clough's assumption that Cress had a type of traction injury, but he had no opinion as to the cause of the injury. He stated he did not believe the operation was negligently performed. Further, he believed that Cress received proper post-operative care and that the muscle weakness might be due to disuse atrophy because of lack of exercise.

Dr. Harold Kletschka, a thoracic surgeon, stated that he had treated hundreds of patients with thoracic outlet syndrome and had never performed surgery to treat the problem. He stated that at the least a period of observation is always necessary to determine if physiotherapy is required and that physiotherapy always has a presurgical role. It was his opinion from Cress' medical records that there was no indication for surgery. He was of the opinion that Cress was misinformed about the risks involved in the surgery based on a hypothetical question posing factually the plaintiff's version of the defendant doctor's statement of the risks. Kletschka testified that the cause of the plaintiff's disability was a mechanical injury to the nerves of the brachial...