Dieser v. St. Anthony's Med. Ctr.

Decision Date04 October 2016
Docket NumberNo. SC 95022,SC 95022
Citation498 S.W.3d 419
Parties William Dieser, Respondent/Cross-Appellant, v. St. Anthony's Medical Center, Appellant/Cross-Respondent.
CourtMissouri Supreme Court

St. Anthony's was represented by Paul N. Venker, Lisa A. Larkin and Nathan D. Leming of Williams Venker & Sanders LLC in St. Louis, (314) 345-5000; and

Dieser was represented by Mary E. Coffey, Genevieve Nichols and Adam Henningsen of Coffey & Nichols in St. Louis, (314) 647-0033.

Patricia Breckenridge, chief justice

William Dieser filed an action against St. Anthony's Medical Center alleging that St. Anthony's provided negligent medical care that caused him to develop a stage IV pressure ulcer. The jury ultimately awarded Mr. Dieser $883,000 in compensatory damages. On appeal, Mr. Dieser asserts that the trial court erred by entering a judgment without post-judgment interest because he was entitled to post-judgment interest pursuant to section 408.040.1.1 Mr. Dieser further asserts that the trial court's application of section 538.300, to deny him post-judgment interest, violated his constitutional rights to equal protection, open courts, and a trial by jury. St. Anthony's cross-appealed, asserting multiple points of error.

This Court finds that the trial court did not err in entering its judgment without post-judgment interest. While section 408.040.1 does provide that judgments shall accrue interest, it does so in the context of “the judgment balance as set forth in this section.” Subsections 2 and 3 of section 408.040 then govern the accrual of post-judgment interest. But section 538.300 prohibits the application of subsections 2 and 3 of section 408.040 in medical negligence actions against health care providers. When the relevant statutes are read together, in pari materia , Mr. Dieser was not statutorily entitled to post-judgment interest pursuant to section 408.040.

Furthermore, the application of section 538.300 does not violate Mr. Dieser's constitutional rights. Mr. Dieser failed to preserve the equal protection argument he now raises on appeal because it was not raised before trial court, and the fact that section 538.300 prevented him from obtaining interest on his judgment did not affect his access to the courts. Likewise, the trial court's application of section 538.300 did not violate Mr. Dieser's right to a trial by jury because it does not curtail the jury's determination of damages in that post-judgment interest has never been assessed by a jury.

On cross-appeal, St. Anthony's cannot establish that the cross-examination of an expert regarding the term “never event” affected the outcome of the case nor can it show that it was prejudiced by counsel's discussion of the burden of proof during voir dire . Additionally, no reversible error resulted from Mr. Dieser's testimony that St. Anthony's is a Catholic institution or from counsel's closing argument regarding acceptable medical care in the community. Finally, viewing the evidence in the light most favorable to the verdict, the compensatory damages award was not excessive. Accordingly, the trial court did not abuse its discretion in overruling the motion for remittitur of damages.

Factual and Procedural Background

On January 28, 2008, Mr. Dieser was admitted to St. Anthony's for surgery to remove a pancreatic pseudocyst. Two days later, Mr. Dieser developed a pressure wound on his buttocks. The wound developed into a stage IV pressure ulcer extending from the surface of Mr. Dieser's skin to the bone. Surgery had to be performed to cut and remove dead tissue from the wound. Mr. Dieser was released from St. Anthony's on February 7, 2008.

Following his release, the dressings on Mr. Dieser's pressure wound had to be changed multiple times a day. While home health care nurses made weekly visits, the majority of the dressings were changed by Mr. Dieser's wife. To manage the pain during the dressings, Mr. Dieser's surgeon prescribed lidocaine to numb the area around the wound.

The wound initially healed in five months. Mr. Dieser later began experiencing severe pain at the wound site when bending over or sitting down. A plastic surgeon determined the pain resulted from a band of scar tissue that had formed as the wound healed. In October 2008, Mr. Dieser had a second surgery to remove the scar tissue and replace it with a skin graft taken from his thigh. The skin graft was only partially successful. By February 2009, the wound had completely healed.

In 2012, Mr. Dieser filed a medical negligence action against St. Anthony's. In his second amended petition, Mr. Dieser alleged that St. Anthony's negligently failed to adequately follow its own policies, procedures, and protocols regarding pressure injury prevention when it allowed his body to be exposed to pressure sufficient to create the ulcer. St. Anthony's denied the allegations, and the case proceeded to trial.

The jury returned its verdict in favor of Mr. Dieser. It awarded him $33,000 for past economic damages, $750,000 for past noneconomic damages, and $100,000 for future noneconomic damages for a total of $883,000 in compensatory damages. Both parties filed post-trial motions regarding whether Mr. Dieser was entitled to post-judgment interest under section 408.040. The trial court entered its judgment without post-judgment interest.

Mr. Dieser appeals, and St. Anthony's cross-appeals.

This Court Has Jurisdiction

Prior to addressing the merits of Mr. Dieser's appeal, the Court must first determine whether it has jurisdiction. Alumax Foils, Inc. v. City of St. Louis , 939 S.W.2d 907, 910 (Mo.banc 1997). Article V, section 3 of the Missouri Constitution provides this Court with exclusive appellate jurisdiction in all cases involving the validity of a statute of this state. This Court's exclusive appellate jurisdiction “is invoked when a party asserts that a state statute directly violates the constitution either facially or as applied.” McNeal v. McNeal Sydnor , 472 S.W.3d 194, 195 (Mo.banc 2015). “The constitutional issue must be real and substantial, not merely colorable.” Id.

In his jurisdictional statement, Mr. Dieser asserts that this Court has exclusive jurisdiction over this appeal because the trial court's application of section 538.300, to overrule his motion for post-judgment interest, violated his constitutional rights to equal protection, open courts, and a jury trial. St. Anthony's asserts that there is no basis for jurisdiction in this Court because Mr. Dieser waived his constitutional challenges to section 538.300 by not asserting them at the earliest opportunity. In particular, St. Anthony's contends that Mr. Dieser waived his constitutional challenges by raising them in a post-trial motion instead of in a reply to the answer St. Anthony's filed. Under the facts and circumstances of this case, Mr. Dieser did not waive his constitutional challenges by raising them for the first time in a post-trial motion.

In its answer, St. Anthony's alleged, as an affirmative defense, that it intended “to rely upon and obtain the benefits of Chapter[ ] 538[.] Mr. Dieser did not file a reply to the answer filed by St. Anthony's. Following the verdict, St. Anthony's filed a post-trial motion “to Apply Sections of Chapter 538 of the Missouri Revised Statutes.” In its motion, St. Anthony's alleged that Mr. Dieser was not entitled to post-judgment interest because section 538.300 prohibits the award of post-judgment interest in medical negligence cases against health care providers. Mr. Dieser also filed a post-trial motion, which was titled Plaintiff's Motion for Entry of Judgment Which Includes Post Judgment Interest.” In his motion, Mr. Dieser alleged that he was entitled to post-judgment interest pursuant to section 408.040.1 and asserted, for the first time, that section 538.300's restriction on post-judgment interest violates his constitutional rights to equal protection, open courts, and a trial by jury. The trial court entered its judgment without post-judgment interest.

This Court has long held that “in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.” Lohmeyer v. St. Louis Cordage Co. , 214 Mo. 685, 113 S.W. 1108, 1110 (1908), overruled on other grounds by City of St. Louis v. Butler Co. , 358 Mo. 1221, 219 S.W.2d 372 (Mo.banc 1949). Nevertheless, this Court has recognized that “there can be no fixed rule as to when or how or at what stage of the proceedings the [constitutional] question should be raised in each case.” Hohlstein v. St. Louis Roofing Co. , 328 Mo. 899, 42 S.W.2d 573, 578 (1931).

St. Anthony's asserts that Mr. Dieser should have raised his constitutional challenges in a reply because, if the defense relies upon a statute in its answer, “then the reply would be the first open door” to raise a constitutional challenge to the statute. McGrath v. Meyers , 341 Mo. 412, 107 S.W.2d 792, 794 (1937). If the defendant grounds an affirmative defense on a statute that plaintiff contends is unconstitutional, “it would seem he should plead its unconstitutionality in the reply[.] Lohmeyer , 113 S.W. at 1110 ; see also Hanks v. Hanks , 218 Mo. 670, 117 S.W. 1101, 1102 (1909). It typically follows, therefore, that if a defendant asserts a statute as an affirmative defense, constitutional challenges to that statute should be raised in a reply.

Section 538.300, however, is not an affirmative defense under the circumstances of this case. An “affirmative defense” is [a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true.” Black's Law Dictionary 509 (10th ed. 2014). An “affirmative defense” is a procedural tool “that allows the defendant to defeat or avoid the plaintiff's cause of action and avers that even if the allegations...

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