Dotson v. Hammerman, 69056

• Decision Date: 29 October 1996
• Docket Number: No. 69056,69056
• Citation: Dotson v. Hammerman, 932 S.W.2d 880 (Mo. App. 1996)
• Court: Missouri Court of Appeals
• Parties: Melba DOTSON, Plaintiff/Appellant, v. Harley J. HAMMERMAN, M.D., Radiologic Imaging Consultants, a corporation, Cardiac, Thoracic & Vascular Surgery, Inc., a corporation, and K. James, M.D., Defendants/Respondents.

Page 880

932 S.W.2d 880

Melba DOTSON, Plaintiff/Appellant, v. Harley J. HAMMERMAN, M.D., Radiologic Imaging Consultants, a corporation, Cardiac, Thoracic & Vascular Surgery Inc., a corporation, and K. James, M.D. Defendants/Respondents.

No. 69056.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 29, 1996.

Richard L. Hughes, Mogab & Hughes, St. Louis, for plaintiff/appellant.

Robert A. Wulff, Amelung, Wulff & Willenbrock, Edward V. Crites, Kortenhof & Ely, Laurie S. Wright, Moser & Marsalek, P.C., St. Louis, for defendants/respondents.

CRANE, Judge.

In this medical malpractice action plaintiff Melba Dotson appeals from the trial court's judgment in defendants' favor. The trial court sustained a motion for directed verdict after plaintiff's opening statement filed by defendant Harley Hammerman, M.D. and his employer, defendant Radiologic Imaging Consultants, Inc. (Radiologic). The jury returned a verdict in favor of the remaining defendants, Cardiac, Thoracic & Vascular Surgery, Inc. (Cardiac) and Kathleen James, M.D. On appeal plaintiff contends that the trial court erred in sustaining the motion for directed verdict and in denying her motion for new trial against all defendants on the basis of that error. We affirm.

The malpractice allegations arose from plaintiff's claim that each defendant's negligence had led to her having an unnecessary bilateral mastectomy. She brought separate counts against each of the medical providers. Count one sought recovery from Dr. Hammerman, a radiologist, and his employer, Radiologic. She alleged that Dr. Hammerman reviewed a CT scan of plaintiff and

4. That after reviewing the CT scan, Defendant Dr. Hammerman incorrectly diagnosed plaintiff as having a "longitudinal separation of the sternum."

5. That in diagnosing plaintiff's condition as set out in Paragraph 4 above, Dr. Hammerman negligently (a) misdiagnosed the healing status of plaintiff's sternum, and (b) made a diagnosis which was equivocal, misleading and confusing.

In Count two she alleged that the Cardiac surgeons diagnosed that she was suffering from sternal dehiscence and advised her to have a bilateral mastectomy to improve the chances of successful repair of her sternal wound; however, subsequent surgery showed no sternal dehiscence. In Count three she alleged that Dr. James performed the mastectomy which was unnecessary because plaintiff's sternum was healing and she was not dehisced.

In his opening statement counsel for plaintiff outlined plaintiff's medical history as follows. In 1988 the Cardiac surgeons performed open heart surgery on plaintiff during which her sternum was split apart and wired together. After that surgery her sternum pulled apart, a condition known as sternal dehiscence. The Cardiac surgeons, who diagnosed the dehiscence, advised her that the weight of her breasts was causing the sternum to dehisce. They suggested that if her sternum did not heal she might have to undergo a mastectomy to facilitate healing. On March 21, 1989 one of the Cardiac surgeons performed a second surgery to rewire the sternum and repair the dehiscence. After that surgery plaintiff consulted her personal physician, Dr. James, about a breast problem and her sternal wound. On her next visit, May 9, 1989, she told Dr. James that, while carrying out the garbage, she felt a pull in her chest and was now having pain at the incision site. Dr. James thought that she may have had another dehiscence and advised her to see the Cardiac surgeons about that possibility. Plaintiff saw one of the Cardiac surgeons. He wrote an order to Radiologic requesting a CT scan to "RO [rule out] sternal dehiscence." Dr. Hammerman was the radiologist at Radiologic who read the films pursuant to this order.

Counsel then stated:

Dr. Hammerman never sees--and it's thoroughly appropriate--he never sees the patient. Dr. Hammerman gets no more information about what he was or was not to look for than this note. Dr. Hammerman is not told by any of the doctors in the cardiothoracic group, who order this, other than what is said here. He is never told that seven weeks before this, this lady's chest is opened up and she is rewired, her sternum is reapproximated and she's rewired.

In other words, Dr. Hammerman is not told that this lady is only seven weeks post sternum surgery. He doesn't know that. Now what happens next then is Dr. Hammerman reads the film, and Plaintiff's Exhibit 3 is his diagnosis.

Exhibit 3 was a blow-up of Dr. Hammerman's report. The record reflects it was marked and referred to in opening statement. It reads as follows:

A CT scan of the sternum was performed. Multiple wire sutures are seen surrounding the sternum consistent with the patient's prior sternotomy. A longitudinal separation of the sternum is seen throughout its entire length consistent with the clinical impression of a sternal dehiscence. There is no soft tissue abnormality or inflammatory change seen about the separation to suggest a diagnosis of infection.

IMPRESSION Findings as above consistent with the clinical diagnosis of dehiscence.

Plaintiff's counsel, referring to the report, continued:

He finds a longitudinal separation of the sternum throughout its entire length consistent with a clinical impression of sternal dehiscence. [colloquy with court omitted.] His impression is: Findings as above consistent with--and the article is important here--'the' clinical diagnosis of dehiscence. The record is clear that at this time, other than Dr. James, who has got a question mark and has said she thought there might be a clinical dehiscence, that nobody has made a clinical diagnosis of dehiscence.

Subsequently the Cardiac surgeons determined that plaintiff had a dehiscence and advised Dr. James that, if there was a dehiscence, a mastectomy should be performed before rewiring surgery. Dr. James consulted a plastic surgeon who recommended a mastectomy, rather than a breast reduction, because of plaintiff's health history. On May 21, 1980 Dr. James performed the mastectomy. On June 6, one of the Cardiac surgeons operated on plaintiff to rewire the sternum but found that it was healing.

Plaintiff's counsel summarized the case as follows: "So, what this case is all about is about a series of misadventures where nobody really did what was needed to be done. The clinical exam for dehiscence." He had advised the jury: "There will be testimony from, I'm sure, all of the doctors in this case that you can't make the diagnosis of dehiscence based on history or what it looks like. You have to palpate." He further stated:

Dr. Bassin will tell you that you have to do a clinical exam to make this diagnosis (of "sternal dehiscence"). You have to palpate the chest. He'll tell you that without that exam you can't make the diagnosis, and seven weeks after surgery he'll tell you that the CT doesn't mean anything, because the bone, as it's wired together, can heal on occasion with some soft tissue. Scar tissue can cause the healing, so you could--it looked like--might look like it's apart, but it isn't.

Plaintiff's counsel next told the jury that her expert, Dr. Sheer, would testify that "the CT film, which you'll see, shows a separation, but the separation is a natural separation consistent with healing, it doesn't mean anything, ..." (objection to remainder of sentence sustained).

After plaintiff's opening statement, Dr. Hammerman's attorney asked for a bench conference at which he asked plaintiff's attorney on the record if he wished to add to his opening statement. Plaintiff's attorney explained that his theory of negligence against Dr. Hammerman was that he had diagnosed her condition without being aware of her clinical history. Plaintiff's attorney told the judge that "[t]he question of separation of the sternum, there has never been an argument about that." Dr. Hammerman's attorney moved for a directed verdict on the grounds that plaintiff's attorney admitted that the diagnosis of sternal dehiscence could only be made clinically, not by reading a CT scan, and that Dr. Hammerman's finding of a longitudinal separation was accurate. The trial court took the request under advisement and heard all the defendants' opening statements. The court then heard the parties' arguments on the directed verdict motion and granted the motion.

For her first point plaintiff asserts that the trial court erred in directing a verdict in favor of Dr. Hammerman and Radiologic at the close of opening statements because plaintiff did not admit an inability to prove her case against those defendants.

As a general matter, trial courts are reluctant to direct a verdict at the close of plaintiff's opening statement. Politte v. Union Electric Company, 899 S.W.2d 590, 592 (Mo.App.1995). The opening statement is usually only an outline of anticipated proof, not a detailed statement, and counsel is not required nor expected to recite every detail of evidence to be offered. Brouk v. Brueggeate, 849 S.W.2d 699, 702 (Mo.App.1993); Gibson v. Grant, 766 S.W.2d 706, 709 (Mo.App.1989). Generally, a trial court may direct a verdict at the close of plainti...