Eichelberger v. Barnes Hosp.

• Decision Date: 21 June 1983
• Docket Number: No. 45438,45438
• Parties: Mary EICHELBERGER, Plaintiff-Respondent, v. BARNES HOSPITAL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 699

655 S.W.2d 699

Mary EICHELBERGER, Plaintiff-Respondent, v. BARNES HOSPITAL, Defendant-Appellant.

No. 45438.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 21, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 1, 1983.

Application to Transfer Denied

Sept. 20, 1983.

John C. Shepherd, Ken Bean, St. Louis, for defendant-appellant.

James Logan, St. Louis, for plaintiff-respondent.

DOWD, Judge.

Plaintiff Mary Eichelberger instituted this medical malpractice suit against Barnes Hospital alleging that defendant through its employee, Doctor Hirschel, negligently punctured the plaintiff's right lung while attempting to perform a medical procedure known as a subclavian stick.

The court overruled defendant's motion for a directed verdict at the close of all the evidence, and the case was submitted to the jury. The jury rendered a verdict in favor of the plaintiff in the amount of $50,000. Thereafter, the court overruled defendant's motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial. This appeal followed. We affirm.

Mrs. Eichelberger, a sixty year old woman at the time of the trial, has an extensive medical history. In 1946, she developed tuberculosis and was confined to a sanitarium for fifteen months. In order to treat the tuberculosis the doctors there collapsed her left lung. Soon after this therapy, plaintiff was released with no further difficulty with tuberculosis.

In the 1950s Mrs. Eichelberger developed a condition known as Chron's Disease which inflames the small and large intestines and affects the body's ability to absorb nutrition. Between 1958 and the date of trial, plaintiff experienced periodic flare-ups of Chron's Disease which forced her to be hospitalized twelve times.

On July 3, 1977, plaintiff's condition of Chron's Disease rapidly deteriorated and she was taken to the emergency room at Barnes Hospital. Doctor Bernard Hirschel, a resident in the emergency room treated Mrs. Eichelberger, who weighed 75 pounds at the time of her admission. Doctor Hirschel testified that due to her dehydrated state, plaintiff needed fluids and calories but because of the Chron's Disease, it was impossible to give her these fluids orally. Doctor Hirschel testified that he first attempted to insert an intravenous line into her arm but he was unsuccessful in locating the vein because of her substantial weight loss. According to the doctor, he then explained to Mrs. Eichelberger that the best alternative method of giving calories was through what is known as a subclavian stick, which requires insertion of a catheter under the collarbone and into the subclavian vein. This procedure involves using a small anesthetic needle to numb the area and locate the vein. Once the vein is located a much large needle is then placed into the vein and a catheter is placed through the needle and is attached via a plastic line to the caloric solution.

First, Doctor Hirschel attempted to locate the subclavian vein on plaintiff's left side--the same side as her partially collapsed tuberculoid lung. However, the doctor could not find the vein so he attempted the same procedure on the right side. While using the small anesthetic needle to locate the vein, Doctor Hirschel punctured the pleural space around plaintiff's right lung. Mrs. Eichelberger immediately complained of shortness of breath at which point an x-ray confirmed that she had indeed suffered a pneumothorax, or puncture of the pleural space around the lung. A surgical intern who was present in the emergency room inserted a chest tube to reinflate the lung. She later was taken to the intensive care unit for nine days and to a regular floor where she remained for 26 additional days.

Mrs. Eichelberger testified that she lost consciousness after the pneumothorax and did not awake until sometime later. The plaintiff's two children testified that the hospital called a "code blue" emergency after the puncture and a large team of physicians and nurses worked on their mother during this time. They said she looked as though she was deprived of oxygen. After the hospitalization there was testimony that plaintiff complained of shortness of breath, inability to walk up and down stairs, and an inability to do her housework.

There are two complications with performing a subclavian stick. One is bleeding and the other is a pneumothorax, or puncture of the pleural space around the lung. Mrs. Eichelberger testified that during her treatment in the emergency room the risks of the subclavian stick were not discussed with her. Doctor Hirschel did not specifically remember telling her about the two complications but he also did not recall departing from his customary practice of informing patients of the risks of this procedure.

All six of the physicians who testified for defendant, Barnes Hospital, agreed that the plaintiff, if she was not, should have been informed of the risks of the subclavian stick. They also all agreed that the mere fact that a pneumothorax occurs during a subclavian feeding does not indicate that the physician was not performing up to the standards of good medical practice. These doctors also all individually found no evidence of any present pulmonary problems which could be related to the pneumothorax at Barnes Hospital in 1977.

The expert testimony offered by the plaintiff was that of Doctor Sharon Woodruff. Doctor Woodruff received her training at the Washington University School of Medicine, Jewish Hospital, and she served as a resident on the staff at Barnes Hospital. Doctor Woodruff testified that she was an expert in internal medicine, neurology, psychiatry, and surgery. In July of 1977, Doctor Woodruff surrendered her license because of a firearms conviction so at the time of trial she was not licensed to practice medicine in any state.

Doctor Woodruff testified that the "treatment of choice" to administer fluids was a venous cutdown which would involve the insertion of an intravenous line into the lower part of the leg. In fact, the venous cutdown was the "procedure of choice" at Barnes Hospital when she was on staff there because it enabled physicians to avoid the known risks of a subclavian stick. According to Doctor Woodruff, both the act of puncturing the lung when attempting a subclavian stick and the failure to inform the plaintiff of the risks in performing a subclavian stick constituted a failure to exercise that degree of care, skill and diligence that is exercised by a careful and prudent physician under the same or similar circumstances.

In its first point, appellant, Barnes Hospital, asserts that the trial court committed prejudicial error by admitting into evidence Doctor Woodruff's testimony as a medical expert because she was not competent to render an expert medical opinion due to her felony conviction and lack of a medical license. Appellant argues that it should be a prerequisite that the expert be licensed to practice before being allowed to testify.

An expert witness is one who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons who have no particular training are incapable of forming an accurate opinion of or deducing correct conclusions therefrom. Giambelluca v. Missouri Pacific Railroad Company, 320 S.W.2d 457, 463 (Mo.1959).

The determination of an expert witness' qualifications in the field in which his testimony is sought rests in the first instance in the sound discretion of the trial court and its decision in that respect should not be set aside in the absence of a showing of abuse of discretion. Edwards v. Rudowicz, 368 S.W.2d 503, 506 (Mo.App.1963).

Appellant contends that the trial court lacked discretion in permitting an unlicensed doctor to testify. Appellant argues that Doctor Woodruff was incompetent to testify as a matter of law because of the lack of a medical license. For authority appellant cites the case of Gee v. Bess, 176 S.W.2d 516, 523 (Mo.App.1943), where the court held that although Doctor Bess had been suspended by both the American Medical Association and the Sedalia Association, he was a licensed physician and therefore competent to testify. Appellant argues that because Gee held that a licensed physician was a competent witness the trial court was without discretion to rule on the competency of a doctor whose license had been suspended. We disagree. We believe the court in Gee was merely following precedent by giving deference to the decision of the trial court in refusing to review the matter absent a showing of an abuse of discretion. We do not believe that the rule for medical doctors should differ from the normal rule on competency of expert witnesses. The expert witness must have sufficient skill, knowledge, or experience in the field or calling as to make it appear that his opinion will probably aid the trier in his search for the truth. See generally, Edwards v. Rudowicz, 368 S.W.2d 503 (Mo.App.1963).

Appellant raised no objection to the competency of Doctor Woodruff as a physician and, in fact, she received part of her training and served on the staff at Barnes Hospital. Appellant's only concern reflected the fact that Doctor Woodruff was a convicted felon who had surrendered her license to practice medicine. A person who has been convicted of a criminal offense is a competent witness, but her conviction may be proved to affect her credibility either by the record or by cross-examination. State v. Washington, 383 S.W.2d 518, 523 (Mo.1964). We do not find that the trial court abused its discretion by allowing Doctor Woodruff to testify as an expert witness. Appellant's first point is therefore denied.

Appellant also contends the trial court erred in denying its motion for a directed verdict because there was no substantial evidence to support plaintiff's claim of negligence. We find that the motion was properly denied by the trial court.

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