Davolt v. Highland

• Decision Date: 12 August 2003
• Docket Number: No. WD 60590.,WD 60590.
• Citation: 119 S.W.3d 118
• Parties: Jimmie Lee DAVOLT, Respondent, v. Dr. Thomas HIGHLAND, Appellant.
• Court: Missouri Court of Appeals

119 S.W.3d 118

Jimmie Lee DAVOLT, Respondent, v. Dr. Thomas HIGHLAND, Appellant.

No. WD 60590.

Missouri Court of Appeals, Western District.

August 12, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 30, 2003.

Application for Transfer Denied November 25, 2003.

Mark T. McCloskey, Clayton, MO, for Respondent.

Susan Ford Robertson, Columbia, MO, for Appellant.

Before BRECKENRIDGE, P.J., and HOWARD and HOLLIGER, JJ.

VICTOR C. HOWARD, Judge.

Jimmie Davolt sued Dr. Thomas Highland for medical malpractice. A jury found in favor of Mr. Davolt and awarded $700,000 in total damages.

Dr. Highland brings four points of error in his appeal from the amended judgment entered upon the jury's verdict. He alleges that the trial court erred: (1) in denying his motion for directed verdict and judgment notwithstanding the verdict (JNOV); (2) in denying admission of a videotape demonstration of the surgical procedure at issue; (3) in admitting Mr. Davolt's expert's letters to Mr. Davolt's counsel— Plaintiff's Exhibits 4 and 5—into evidence and thereafter allowing the exhibits to go to the jury during deliberations; and (4) in computing periodic payments of future damages under section 538.220.¹

We affirm.

Background

Jimmie Davolt worked as an electroplater at Toastmaster in Macon, Missouri. On July 18, 1991, while shoveling hazardous waste, Mr. Davolt "fell flat to the floor." He immediately "felt tingling and burning in [his] arms and legs and [his] neck and all through [his] back." After seeing several doctors, it was determined that he required neck surgery, so he was referred to Dr. Highland, an orthopedic surgeon in Columbia, Missouri.

Dr. Highland performed surgery on Mr. Davolt's neck on October 4, 1991. After four days in the hospital, Mr. Davolt returned home. He was still experiencing constant numbness, tingling and burning sensations—"like needles and pins"—in his arms and legs. At his monthly follow-up appointments with Dr. Highland, Mr. Davolt complained that he "felt the same" as he did before the surgery. Although he was told he could return to work three months after the surgery, Mr. Davolt did not feel he could, so he requested a second myelogram.² Upon receiving results of the myelogram, Dr. Highland recommended additional surgery. However, Mr. Davolt refused to consent to the surgery and chose, instead, to pursue other doctors' opinions about his condition. After consulting with the other doctors, Mr. Davolt decided not to have a second surgery, because, as he explained, it "would be a lot worse—chance of paralysis."

Mr. Davolt then filed his medical malpractice action against Dr. Highland.³ A three-day jury trial was held in July 2001 at which both parties presented extensive medical testimony and evidence pertaining to Mr. Davolt's condition and the surgical procedure performed by Dr. Highland. Dr. Dunn, Mr. Davolt's expert witness, testified that Dr. Highland had negligently performed an incomplete decompression of Mr. Davolt's spinal cord and nerve roots by failing to completely remove the bone spurs or osteophytes from Mr. Davolt's vertebrae, resulting in his ongoing symptoms. Dr. Highland's defense was that he had properly performed a complete decompression, but Mr. Davolt's injury from the fall in 1991 was permanent, so there was nothing he could do to relieve the ongoing symptoms. At midnight on Saturday, July 13, 2001, the jury⁴ entered its verdict in favor of Mr. Davolt. It found his total damages to be $700,000.⁵ The trial court thereafter entered its judgment subject to the adjudication or agreement upon periodic payments, if any, of future damages pursuant to section 538.220.

Dr. Highland then filed his post-trial motions, including: a motion for JNOV; a motion to vacate, reopen, correct, amend or modify the judgment; a motion for new trial; and an alternate motion for remittitur. Mr. Davolt filed his opposition to the post-trial motions the following month. Dr. Highland and Mr. Davolt then filed suggestions in support of an amended judgment concerning periodic payments of future damages under section 538.220. Although they agreed amendment was necessary as to certain aspects of the periodic payment, they did not agree on the aggregate sum subject to periodic payments, so both parties suggested calculations for the proposed amended judgment. The trial court entered an amended judgment on October 15, 2001. This appeal follows.

Point I: "But For" Causation

In his first point on appeal, Dr. Highland contends that the trial court erred in denying his motion for a directed verdict and motion for JNOV because there was no substantial evidence of "but for" causation sufficient to support submission of Mr. Davolt's case to the jury. He maintains that Mr. Davolt failed to provide evidence of a causal relationship between Dr. Highland's alleged negligent failure to perform a complete decompression and Mr. Davolt's damages. We disagree.

I. Standard of Review:

We review the trial court's denials of Dr. Highland's motion for directed verdict and motion for JNOV under the same standard. In both cases, we must determine whether Mr. Davolt made a submissible case, i.e., whether he "presented substantial evidence for every fact essential to liability." Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445, 448 (Mo.App. W.D.2001). To make a submissible case in his medical malpractice action, Mr. Davolt must have presented substantial evidence that Dr. Highland "failed to use the degree of skill and learning ordinarily used under the same or similar circumstances by members of [Dr. Highland's] profession and that his negligent act or acts caused [Mr. Davolt's] injury." Coon v. Dryden, 46 S.W.3d 81, 89 (Mo.App. W.D.2001). Unless we find that "there is a `complete absence of probative fact' to support the jury's conclusion," or, in other words, that the evidence and reasonable inferences are so strong against Mr. Davolt's case that there is no room for reasonable minds to differ, we will not take the case from the jury. Id. (quoting Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 461 (Mo. banc 1998)).

To determine whether Mr. Davolt made a submissible case, we consider the evidence and all reasonable inferences to be drawn therefrom in a light most favorable to Mr. Davolt while disregarding contrary evidence and inferences. Poloski, 68 S.W.3d at 448. However, we will not "supply missing evidence or give [Mr. Davolt] the benefit of unreasonable, speculative, or forced inferences," and the reasonableness of any inferences drawn and the substantiality of the evidence are questions of law. Id. at 449.

II. Submissibility of Mr. Davolt's Case:

Dr. Highland attacks Mr. Davolt's proof on the causation element of his medical malpractice claim. As a part of his case, Mr. Davolt was required to prove by substantial evidence that Dr. Highland's negligent act or acts were "both the cause in fact and the proximate or legal cause of [his] injury." Wright v. Barr, 62 S.W.3d 509, 524 (Mo.App. W.D.2001). To establish the "cause in fact" prong of causation, Mr. Davolt must have shown that but for Dr. Highland's conduct, his injury would not have occurred; to establish the "proximate cause" prong, he must show that his injury "was the natural and probable consequence of [Dr. Highland's] conduct." Id. In his point relied on, Dr. Highland argues there was no substantial evidence of "but for" causation—the "cause in fact" prong—to support submission of the case to the jury, so we limit our review to that issue.

In support of his argument, Dr. Highland contends

that Davolt's expert testified that there is no way to know whether Davolt's previous spinal cord injury was permanent until Highland operated on Davolt and if Davolt's pain and symptoms improved then the previous injury was not permanent but if he did not improve there was no way to know whether the previous injury was permanent or whether the surgery was negligently performed.

Thus, Dr. Highland maintains that "Davolt's case is in essence, a failure to cure and there is no substantial and credible evidence in this case that the October 1991 surgery performed by Highland would have cured Davolt from the symptoms and disabilities he complained of following his injury."

The "sophisticated" nature of Mr. Davolt's injury, which required surgical intervention, necessitated expert medical testimony, to a reasonable degree of medical certainty, to prove causation. Id. at 524-25. Dr. Dunn testified as Mr. Davolt's expert medical witness. Dr. Highland argues that Dr. Dunn's testimony is insufficient to support substantial evidence of causation and damages on the part of Mr. Davolt.

More specifically, Dr. Highland argues that the following testimony of Dr. Dunn on cross-examination supports his argument that there was insufficient evidence of "but for" causation:

Q: So, if we had a compression injury, a permanent injury, which apparently we believe exists in this case, do you believe it's a permanent injury, here?

A: Well, I believe it is now, because the pressure was never taken off at the appropriate time. So I believe the injury now is permanent.

Q: All right. But you don't believe it was permanent in—at the time of the surgery.

A: No. I believe Dr. Bohlman's statistics of greater than 90 percent relief.

* * *

Q: ... [B]ack to the proposition of the distinction between the problem of radiculopathy and myelopathy, it is—will you not concede that a permanent injury to the cord could cause the very symptoms that he is experiencing today and was experiencing at the time?

A: Well, the definition you're using, if you say an injury to the cord, is one thing. If you're saying he's had a permanent injury, that means, before anything, it's already permanent.

Q: Right.

A: And you're making a different assumption. That's why I can't concede that to you. If you—if you're saying the ball game [is] already over before it starts, because why do...