Depper v. Nakada, 36776

Citation558 S.W.2d 192
Decision Date21 June 1977
Docket NumberNo. 36776,36776
PartiesBernece DEPPER, Plaintiff-Respondent, v. James R. NAKADA, Executor of the Estate of Fred Emmert, M.D., Defendant-Appellant. . Louis District, En Banc
CourtCourt of Appeal of Missouri (US)

Page 192

558 S.W.2d 192
1 A.L.R.4th 222
Bernece DEPPER, Plaintiff-Respondent,
James R. NAKADA, Executor of the Estate of Fred Emmert,
M.D., Defendant-Appellant.
No. 36776.
Missouri Court of Appeals, St. Louis District, En Banc.
June 21, 1977.
Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
Application to Transfer Denied Nov. 14, 1977. *

Page 193

George E. Lee, Doris J. Banta, St. Louis, for defendant-appellant.

Hanks & Taylor, W. Morris Taylor, Clayton, for plaintiff-respondent.


James R. Nakada, Executor of the Estate of the Deceased, Fred Emmert, M.D., appeals from the judgment awarding plaintiff $25,000 for Emmert's medical malpractice. We affirm.

In May of 1945, plaintiff suffered thrombophlebitis in her left leg and was bedridden for approximately eight weeks. The swelling and soreness of the leg disappeared three weeks later and she had no "flare-up" or recurrence of the condition until July 1966. Plaintiff consulted Dr. Emmert professionally in October 1945 and continued as his patient until 1966, except for a period 1963 to 1965 when he temporarily retired from practice. As early as 1955, while attending the birth of plaintiff's son, Emmert was made aware of her history of thrombophlebitis.

In June of 1966, Dr. Emmert prescribed medication for plaintiff's overweight condition "(a)nd maybe some blood pressure, but mainly weight conditions." Certain treatment consisting of three alleged injections of mercuhydrin which gave rise to this litigation was administered in July of that year.

Plaintiff's husband testified 1 she received an injection on July 6 and shortly thereafter her arm and shoulder became sore, "swollen, discolored and the skin looked kind of shiny like . . . ." A second injection on July 13 was followed by a reaction in plaintiff's left leg with symptoms similar to those observed in the arm. After a third visit to Dr. Emmert and a third injection on July 20 or 21, plaintiff became ill and in a few days her left leg was painfully swollen and feverish. On July 26, 1966, plaintiff consulted Dr. Allen Klippel and was admitted to St. Luke's Hospital August 2 where she remained under treatment for five days. After her release plaintiff continued to experience discomfort and occasionally inflammation accompanied by severe pain in her leg.

In July, 1966 Dr. Emmert knew of Mrs. Depper's prior disabling experience with thrombophlebitis and her predisposition to this ailment. It is also undisputed that mercuhydrin can trigger allergic reactions, typically thrombophlebitis in one with Mrs. Depper's medical history. Dr. Emmert apparently realized this because the first shot of mercuhydrin administered on July 6, 1966 was a small test dose of 1/2 c.c. Thrombophlebitic symptoms soon appeared and though they persisted he administered a second and later a third shot of the offending drug eventuating in her hospitalization.

Plaintiff and her husband filed suit jointly for malpractice on February 2, 1969, but dismissed that action without prejudice after Emmert's death in 1970. In the present suit plaintiff's husband dismissed his claim at the commencement of trial for the announced purpose of avoiding disqualification of his testimony under the Missouri Dead Man's Statute, § 491.010. The cause was tried and a plaintiff's verdict rendered.

Defendant for his allegation of error, contends: (1) the evidence was insufficient to establish any negligent act or omission of Dr. Emmert as a cause of plaintiff's thrombophlebitis because plaintiff's medical expert testimony did not establish negligence or causal connection between Emmert's

Page 194

treatment and plaintiff's phlebitis; (2) the trial court erred permitting plaintiff's expert witness to express opinions based upon the hypothetical questions addressed to him, as facts assumed in those questions were not supported by the evidence; and (3) the trial court erred in permitting Earl Depper's testimony as to conversations with Dr. Emmert.

In ruling defendant's challenge to the sufficiency of the evidence in this jury-tried case, we consider "the evidence in the light most favorable to plaintiff. The evidence favorable to plaintiff is considered as true, and plaintiff is given the benefit of every reasonable inference therefrom; and defendant's evidence, unfavorable to plaintiff, is disregarded." Boyd v. Terminal Railroad Ass'n of St. Louis, 289 S.W.2d 33, 35(1) (Mo.1956). The plaintiff is entitled to a view of the evidence "from a viewpoint most favorable to plaintiff and (we) give plaintiff the benefit of every reasonable inference which the evidence tends to support . . . . On the other hand, we disregard defendant's evidence unless it aids plaintiff's case." Wardenburg v. White, 518 S.W.2d 152, 154(1) (Mo.App.1974). Guided by these standards we examine appellant's second allegation of error concerning sufficiency of the proof of facts assumed in the hypothetical questions propounded to plaintiff's expert Dr. Barrow. Barrow had been plaintiff's treating physician after her hospitalization in July 1966. The hypothetical questions propounded and the answers concerning Emmert's negligence were as follows:

"Q. Now, Doctor, . . . I want you to assume that the plaintiff was injected with a drug . . . called mercuhydrin; that she received three injections, one on July 6, 1966, one on July 13, 1966, and one on July 21, 1966 . . . that the sole reason for Mrs. Depper being treated at this particular time was for weight loss and that she was being treated, as her history explained to you, by Dr. Fred Emmert . . . Now, Doctor, . . . Do you have an opinion based upon a reasonable degree of medical certainty as to whether or not Dr. Emmert used that degree of skill and learning ordinarily used by other doctors in 1966 under the same or similar circumstances by using this drug for weight loss? (Emphasis added.)

A. I have an opinion, yes.

Q. Would you tell us what that opinion is please?

A. That mercuhydrin that at that time and now, mercuhydrin would not be considered an appropriate drug for treatment of excessive weight or obesity.

Q. . . . The question is, based on a reasonable degree of medical certainty, whether or not you feel that Dr. Emmert was exercising that degree of skill and learning normally exercised by other doctors in 1966 under the same or similar circumstances . . .

A. Not in giving three injections of mercuhydrin for weight reduction."

Testifying further, the witness described mercuhydrin as a drug ordinarily used as a diuretic in treatment of heart failure but not as treatment for obesity. He explained that in some instances the drug produced undesirable effects such as patient dehydration, allergic reaction, hives or skin rashes and these effects "(u)sually . . . occur after the drug had been used more than once."

The witness was then asked by hypothetical question for his opinion of the causal relation between the treatment administered and plaintiff's thrombophlebitis. The question assumed as fact plaintiff's 1945 thrombophlebitis which remained dormant until 1966 when defendant had administered three injections of the drug mercuhydrin followed by the recurrent illness; the question continued:

"Q. . . . based upon a reasonable degree of medical certainty as to the competent producing cause of Mrs. Depper's condition as you first observed it in 1966 and as you know the condition today?

Page 195

A. I have an opinion that something caused the thrombophlebitis suddenly to flare up.

Q. Will you tell us what that something was, Doctor, in your opinion?

A. I think it was the three injections that she received.

Q. Would that be from the drug mercuhydrin you are referring to?

A. Yes."

Appellant argues there was no evidence of Dr. Emmert's having given plaintiff three injections of mercuhydrin and thus no evidentiary support for the hypothetical questions posed. We do not agree. The following testimony of Mr. Depper concerning his phone conversation with Dr. Emmert on the day plaintiff entered the hospital as Dr. Klippel's patient in July of 1966 goes to this point: (The questions and answers are numbered for convenient reference.)

(1) "Q. Please tell us the nature of the conversation, Mr. Depper.

(1a) A. (Mr. Depper) I said to the doctor, I said, my wife has been put in the hospital. He said, what for? Her leg is so bad she can't walk on it. I said, what did you give her?

(2) Q. Did he reply to you?

(2a) A. Yes. He said, I gave her a shot of mercuhydrin. I said, what did you do that for? He said, to take the fluid out of her body and make her slim and trim.

(3) Q. That was his answer to you?

(3a) A. Right.

(4) Q. Now, did he indicate to you whether or not he had given her a shot or more than one shot?

(4a) A. He told me he had given her two in the hip and one in the arm. " (Emphasis added.)

In addition, Emmert's records confirm that a one-half c.c. mercuhydrin injection was administered July 6 and, as pointed out above, other testimony indicates that injection was followed by an adverse reaction in plaintiff's arm; similar adverse reactions followed each visit to Emmert's office culminating in her severe illness and hospitalization.

It has been argued that Mr. Depper's testimony is not sufficient to make a jury issue of whether vel non three shots of mercuhydrin were administered. The foregoing excerpt of Mr. Depper's testimony occurred early in the trial, appearing at pages 74 and 75 of the 247 page transcript but it is significant that from that testimony the trial judge believed counsel and witness had referred to three shots of mercuhydrin and so interpreted questions and answers, # 1 through # 4. The following statement of the trial judge appears during a conference at the bench shortly after Mr. Depper testified:

"Now, you do have testimony through the husband that Dr. Emmert admitted giving three injections of this mercuhydrin" (Emphasis added.)

Additionally, the fact that three shots had...

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