Foster v. Barnes-Jewish Hospital

• Decision Date: 24 April 2001
• Citation: Foster v. Barnes-Jewish Hospital, 44 S.W.3d 432 (Mo. 2001)
• Parties: (Mo. Banc 2001) Bruce D. Foster, Plaintiff/Appellant, v. Barnes-Jewish Hospital, Donald G. Sessions, and Washington University, Defendants/Respondents, and Charles Tseng, Defendant. ED78002 0
• Court: Missouri Supreme Court

44 S.W.3d 432 (Mo. Banc 2001)

Bruce D. Foster, Plaintiff/Appellant, v. Barnes-Jewish Hospital, Donald G. Sessions, and Washington University, Defendants/Respondents, and Charles Tseng, Defendant.

ED78002

Missouri Court of Appeals Eastern District

04/24/2001

Appeal From: Circuit Court of the City of St. Louis, Hon. Margaret M. Neill

Counsel for Appellant: Rocco A. Marrese

Counsel for Respondent: Stephen G. Reuter, Robyn G. Fox, Catherine M. Vale, Paul N. Venker, Thomas B. Weaver and Cynthia A. Sciuto

Opinion Summary: Plaintiff filed a lawsuit to recover damages for medical malpractice alleged to have caused the death of his mother. The trial court entered judgment for defendants in accord with the jury verdict.

Division Five holds: 1. Plaintiff was not prejudiced by the trial court's failure to give two disjunctive submissions on the physicians' failure to ensure the patient was properly monitored where under one submission plaintiff could and did argue all the methods to which his expert testified the physicians breached the standard of care with respect to the patient's monitoring.

2. The trial court did not abuse its discretion in sustaining objection to plaintiff's cross-examination with a medical text where plaintiff did not identify the text or frame the proposition in the exact language of the text.

3. Error not preserved in motion for new trial will not be reviewed.

Hoff, C.J., and Blackmar, Sr. J., concur.

Kathianne Knaup Crane, Judge

Plaintiff filed a lawsuit to recover damages for medical malpractice alleged to have caused the death of his mother. The trial court entered judgment for defendants in accord with the jury verdict. On appeal, plaintiff asserts that the trial court erred in refusing certain tendered jury instructions and in making certain evidentiary rulings. We affirm.

On September 28, 1995, Ruth Anna Foster (the patient), mother of plaintiff Bruce D. Foster, died at defendant Barnes-Jewish Hospital, where she had been a patient for ten days. She had been admitted to the hospital on September 18, 1995 after suffering a severe nosebleed. On September 18 and 19 the patient was treated on the otolaryngology ward by defendant Donald G. Sessions, M.D., who was an employee of defendant Washington University, defendant Charles Tseng, M.D., who was an employee of Barnes-Jewish, and staff doctors and nurses who were employees of Barnes-Jewish. On September 19 the patient went into respiratory arrest. The patient developed Acute Respiratory Distress Syndrome (ARDS), which resulted in her death.

In March, 1998 plaintiff filed this action to recover damages for negligence and wrongful death from Barnes-Jewish, Dr. Tseng, Dr. Sessions, and Washington University. The case was subsequently tried to a jury.

Plaintiff's theory of the case at trial was that the patient's nasal packing slipped, which caused post-obstructive pulmonary edema, which, in turn, caused the patient to suffer ARDS. Plaintiff's expert testified to his opinion that the medical caregivers breached the standard of care in two respects: first, they did not assess the patient properly and ensure that she was placed in a safe monitoring and care environment, second, the patient was not monitored appropriately, both with respect to the nasal packing and to the bleeding and volume resuscitation. He testified that Dr. Tseng was responsible for the decision to place her on the otolaryngology ward instead of the intensive care unit (ICU) and that Dr. Sessions was responsible for concurring with this assessment. He testified that the nursing staff was responsible for not ensuring that the patient was in a safe environment and not charting direct observations of the nose pack and that Dr. Tseng and Dr. Sessions were responsible for not ordering more frequent checks of the nose pack.

Defendants' defense was that the nasal packing had not slipped and caused ARDS but that the ARDS resulted from the patient's aspiration of blood and other secretions into her lungs. Defendants adduced expert testimony that the patient was placed in an appropriate environment for monitoring, that the doctors' orders were appropriate under the circumstances, and that the patient's caregivers acted well within the standard of care.

After the close of the evidence, plaintiff dismissed Dr. Tseng with prejudice. The case was submitted to the jury on plaintiff's claims against Barnes-Jewish and Washington University.

I. Instructional Error

In his first point, plaintiff asserts that the trial court abused its discretion in refusing to give to the jury his proposed verdict directing Instructions A and B, each of which submitted an alternate ground of breach of the standard of care that the respective physicians or physician failed to monitor the patient's condition properly. Plaintiff contends these alternative submissions of negligence were supported by substantial evidence.¹

A party is entitled to any instruction that is supported by substantial evidence. Kauzlarich v. Atchison, Topeka, and Santa Fe Ry. Co., 910 S.W.2d 254, 258 (Mo. banc 1995). Where an instruction is disjunctive, all submissions must be supported by substantial evidence. Elfrink v. Burlington N. R.R. Co., 845 S.W.2d 607, 611 (Mo. App. 1992). However, refusal of a disjunctive paragraph in a verdict director, even one that is supported by the evidence, is not grounds for reversal unless the failure to submit the instruction materially affected the outcome of the case. Blackstock v. Kohn, 994 S.W.2d 947, 953 (Mo. banc 1999). To obtain reversal, the complaining party must show prejudice from the refusal of an instruction. Hackman v. Kindrick, 882 S.W.2d 157, 159 (Mo. App. 1994); Titsworth v. Powell, 776 S.W.2d 416, 423 (Mo. App. 1989).

The elements of a claim for medical malpractice are: 1) the defendant's act or omission that failed to meet the requisite medical standard of care, 2) negligent performance of that act or omission, and 3) a causal connection between the act or omission and the plaintiff's injury. Yoos v. Jewish Hosp. of St. Louis, 645 S.W.2d 177, 183 (Mo. App. 1982). The basic philosophy in malpractice cases is that the doctor is negligent by reason of the fact that he or she has failed to adhere to a standard of reasonable medical care and that consequently the service rendered was substandard and negligent. Aiken v. Clary, 396 S.W.2d 668, 673 (Mo. 1965). This point concerns disjunctive submissions defining the acts or omissions alleged to have failed to meet the requisite medical standard of care.Instruction A

Plaintiff sought to submit the negligence of Barnes-Jewish by Instruction A, which was a modification of MAI 20.02 [1983 Revision] and was worded as follows:

Your verdict must be for plaintiff against Barnes-Jewish Hospital if you believe:

First, plaintiff Bruce D. Foster is the son of Ruth Anna Foster, and

Second, Charles Tseng, M.D., Patt[y] Lee, M.D., Erika Martin, M.D. and certain other healthcare providers who were employees of Barnes-Jewish Hospital cared for and treated Ruth Anna Foster, and

Third, either:defendant Barnes-Jewish Hospital's nurses failed to properly monitor Ruth Anna Foster's condition; ordefendant Barnes-Jewish Hospital's resident physicians, Dr. Charles Tseng, Dr. Erika Martin and Dr. Patt[y] Lee, failed to properly monitor Ruth Anna Foster's condition; ordefendant Barnes-Jewish Hospital's resident physicians, Dr. Charles Tseng, Erika Martin and Dr. Patt[y] Lee, failed to place Ruth Anna Foster in a safe environment for monitoring, and Fourth, defendant Barnes-Jewish Hospital's employee[(s)] in any one or more of the respects submitted in paragraph Third was (were) thereby negligent, and

Fifth, as a direct result of such negligence Ruth Anna Foster died.

(Emphasis added.)

The court refused to give this instruction, but gave Instruction 8, also a modification of MAI 20.02 and also requested by plaintiff, but which did not contain the disjunctive that is set out in the bold-faced language in Instruction A above.

Plaintiff argues that the submission of the disjunctive that the resident physicians "failed to properly monitor" the patient's condition was supported by the testimony of David M. Rodman, M.D. that the physicians failed to order appropriate tests to monitor the patient's blood volume, which tests "would have indicated that there was a continual bleed saturating the nasal packing which then slipped and caused an obstruction. . . ." He argues that as a result of the refusal of these instructions he was precluded from arguing this failure to monitor as a basis for liability.

Instruction B

By Instruction B, plaintiff sought to submit the negligence of Washington University. It was based on MAI 20.02 and contained the following language:

Your verdict must be for plaintiff against Washington University if you believe:

First, plaintiff Bruce D. Foster is the son of Ruth Anna Foster, andSecond, defendant Washington University's employee, Dr. Donald Sessions, cared for and treated Ruth Anna Foster, and Third, either:defen[d]ant Dr. Donald G. Sessions failed to properly monitor Ruth Anna Foster's condition; ordefendant Dr. Donald G. Sessions failed to place Ruth Anna Foster in a safe environment for monitoring, andFourth, Dr. Donald Sessions, in any one or more of the respects submitted in paragraph Third was thereby negligent, and Fifth, as a direct result of such negligence, Ruth Anna Foster died.(Emphasis added.)

The court refused Instruction B but gave Instruction No. 10, also based on MAI 20.02 and also submitted by plaintiff, but which did not contain the disjunctive that is set out in the bold-faced language above in Instruction B.

Plaintiff argues that the submission of the disjunctive that Dr. Sessions "failed to properly monitor" the patient's condition was supported by evidence that Dr. Sessions deviated from the standard of care when he concurred in the supervising attending physician's assessment and care plan,...