Edgerton v. Morrison

• Decision Date: 14 April 2009
• Docket Number: No. SC 89762.,SC 89762.
• Citation: 280 S.W.3d 62
• Parties: Edgar T. EDGERTON, Respondent, v. Stephen K. MORRISON, M.D., et al., Appellants.
• Court: Missouri Supreme Court

280 S.W.3d 62

Edgar T. EDGERTON, Respondent, v. Stephen K. MORRISON, M.D., et al., Appellants.

No. SC 89762.

Supreme Court of Missouri, En Banc.

April 14, 2009.

Gary Cunningham, Darylnne L. O'Neal, Lathrop & Gage LLP, Springfield, MO, for Appellants.

David W. Ransin, David W. Ransin, P.C., Springfield, MO, for Respondent.

MARY R. RUSSELL, Judge.

Edgar T. Edgerton ("Patient") sued Stephen K. Morrison, M.D., a cardiothoracic surgeon, and Ferrell-Duncan Clinic (collectively, "Surgeon")¹ for damages resulting from a negligent diagnosis of his sternum after heart surgery. The trial court entered judgment against Surgeon after a jury verdict. He appealed. Among his allegations of error, he claims that language contained in the verdict director resulted in a "roving commission" and that the verdict form was modified improperly.

This Court granted transfer pursuant to article V, section 10 of the Missouri Constitution after disposition by the court of appeals. Because the verdict director, verdict form, and damages instruction were proper and the evidence of causation was sufficient, this Court affirms the circuit court's judgment.

I. Background

Patient was referred to Surgeon for cardiac bypass surgery after suffering a heart attack.² As a part of this surgery, Surgeon cut and spread Patient's sternum, termed a "sternotomy," to operate on his heart. Afterward, he wired the sternum back together. Patient recovered sufficiently from this operation to be discharged from the hospital, and he visited Surgeon for a scheduled postoperative examination a few weeks later. At this visit, Patient complained of a rash over the surgical wound and of a "gritting" in his chest, and he related that two days prior one of his ribs had temporarily popped out of place. Surgeon palpated his sternum and concluded that it was stable. Later, an admitting cardiologist referred Patient to a dermatologist for treatment of the rash. Patient complained of new and continuing chest pains, and the dermatologist referred Patient back to Surgeon, who again palpated Patient's sternum, determining that it was well-healed.

Several days later, Patient sought a second opinion from Dr. Lundman, a general surgeon, who diagnosed him as having an unstable sternum with possible infection. He referred Patient to a new cardiothoracic surgeon, Dr. Rogers ("Rogers"), who agreed that his sternum was unstable. Rogers operated soon thereafter and, on opening Patient's chest, discovered that his sternum was mostly destroyed and was liquefying, which is termed "necrotic." He cut away the dead portions to expose viable tissue. This resulted in the removal of most of Patient's sternum. The state of the sternum led Rogers to suspect infection, which was one of several possible causes of the damage. He left the wound open, awaiting laboratory results from the wound's tissue samples. When no infection was indicated after 48 hours, a plastic surgeon closed the wound using the pectoralis flap procedure, where a portion of Patient's pectoralis muscle was moved to where the liquefied portion of the sternum had been.

The pectoralis flap procedure is recommended when infection is suspected because it allows for antibiotic transmission through blood flow. But, in this case, no infection ever arose because the cause of the necrosis was bone death, or aseptic vascular necrosis, caused in part by the arterial blood supply diversion performed during the bypass surgery and in part by Patient's particular physical characteristics. But, at the time of the flap procedure, Rogers and the plastic surgeon stated that they still were concerned about the possibility of infection, and Patient's expert witness confirmed that the flap procedure was the safest choice when infection is suspected. The plastic surgeon also stated that, regardless of infection, the flap procedure is the method he typically used to close sternal non-unions. Nevertheless, Patient's expert testified that two potential rigid repairs, a rib transfer and a methyl-methacrylate procedure using mesh ("mesh procedure"), were preferable when there is not an infection, stating that the flap procedure does not protect the heart or stabilize the ribs and skeleton.

Patient sued several defendants.³ The portion of the suit relating to Surgeon alleged that he was negligent in failing to properly diagnose and treat the splitting and instability of Patient's sternum, which ultimately led to his undergoing the flexible-type repair using muscle flap instead of a preferable rigid or solid repair through the rib transfer or mesh procedures. Patient claims that failure to have the rib transfer or mesh procedures has negatively affected his daily tasks, has caused him physical pain during certain activities, and has made future surgeries more risky.

II. Analysis

A. Verdict director, verdict form, and damages instruction were proper.

Whether a jury was properly instructed is a question of law that this Court reviews de novo. Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). An issue submitted by an instruction must be supported by the evidence. Oldaker v. Peters, 817 S.W.2d 245, 251 (Mo. banc 1991). In making this determination as to a particular instruction this Court views the evidence in the light most favorable to its submission. Bach, 257 S.W.3d at 608. Reversal for instructional error is appropriate when the instruction misdirected, misled, or confused the jury and resulted in prejudice. Sorrell v. Norfolk S. Ry. Co., 249 S.W.3d 207, 209 (Mo. banc 2008).

1. Verdict Director

Surgeon claims that a verdict director's improper use of the amorphous term "rigid fixation" created a "roving commission." See Hustad v. Cooney, 308 S.W.2d 647, 650 (Mo.1958) (relating one definition of a "roving commission" as "an abstract instruction ... in such broad language as to permit the jury to find a verdict without being limited to any issues of fact or law developed in the case"). The challenged verdict director, Instruction No. 11, stated in relevant part,

Your verdict must be for [Patient] and against [Surgeon] if you believe:

First, [Surgeon] failed to diagnose and treat [Patient's] unhealed sternum with rigid fixation ... and

Second, [Surgeon] was thereby negligent, and

Third, such negligence directly caused or directly contributed to cause damage to [Patient].

(emphasis added).

Surgeon points out that the term "rigid fixation" was not defined for the jury in the instructions, nor was it explicitly defined during the presentation of evidence. Further, he argues that the term encompassed other repairs, including sternal rewiring, whereas testimony at trial was that only two specific types of repair were available: rib transfer and mesh procedures. As such, he claims that this instruction failed to properly track the expert testimony, analogizing to Grindstaff v. Tygett, 655 S.W.2d 70, 73 (Mo.App.1983) (verdict director stating guideline of "not medically proper" gave the jury "no factual guideline or standard to determine negligence"). He argues this error prejudiced him and merits reversal.

The issue here is whether the term "rigid fixation" as used in the verdict director was misleading in context. Both parities elicited testimony that only two types of rigid stabilizing procedures were available in Patient's circumstances: the rib transfer and mesh procedures. At trial, multiple witnesses agreed that rewiring the sternum, a third type of rigid repair, was not available to Patient. The attorneys' arguments were consistent with this testimony. Although the term "rigid fixation" was used only twice during the presentation of evidence, both times in the context of a cross-examiner's question, synonymous terms such as "solid repair," "rigid repair," and "rigid fix" were repeatedly invoked.

When determining whether the term "rigid fixation" misled the jury, this Court is bound to review the supporting evidence in the light most favorable to submission of the instruction. Bach, 257 S.W.3d at 608. Surgeon argues that because it was undisputed that only two types of rigid stabilizations were available, it follows that this more general term allowed the jury to award damages on an improper basis. But, this Court has stated that a technical amount of detail is not required for a jury to be properly informed of the meaning of expert terminology. See Hickman v. Branson Ear, Nose, & Throat, Inc., 256 S.W.3d 120, 123 (Mo. banc 2008) (modern questioning of experts is "simpler, more direct, and less formulaic than in the past"). This view is consistent with the basic premise of Missouri Approved Instructions, which is to submit only ultimate issues and avoid evidentiary detail in instructions. See Dunn v. St. Louis-San Francisco Ry. Co., 621 S.W.2d 245, 255 (Mo. banc 1981).

Applied here, this is not a case where there was no factual guideline and the jury was thereby misled; rather, an encompassing term was employed—"rigid fixation"—that, in context, the jury would have properly understood to mean the rib transfer and mesh procedures. Compare Hickman, 256 S.W.3d at 123 (substance of expert's answers provided jury with an explanation of the standard of care even though the technical legal standard was not stated verbatim), and Spain v. Brown, 811 S.W.2d 417, 420 (Mo.App.1991) (verdict director's language "wrong location" gave factual guideline when it was clear from expert testimony that this referenced "two finger widths down from the bony knob"), with Grindstaff, 655 S.W.2d at 73 ("not medically proper" was not a factual guideline when it was unclear which error it referenced among several). Indeed, the trial judge allowed this instruction to be used with the benefit of firsthand knowledge of how the evidence was presented at trial and, without indications to the contrary, it should not be assumed that he did so carelessly. It was clear from the evidence that "rigid fixation" referred to the two types of...