Gage v. Morse

• Citation: 933 S.W.2d 410
• Decision Date: 26 September 1996
• Docket Number: No. 20342,20342
• Parties: Mary E. GAGE and Daniel W. Gage, Plaintiffs-Respondents, v. John MORSE, M.D., Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 410

933 S.W.2d 410

Mary E. GAGE and Daniel W. Gage, Plaintiffs-Respondents, v. John MORSE, M.D., Defendant-Appellant.

No. 20342.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 26, 1996.

Motion for Rehearing or Transfer Denied Oct. 21, 1996.

Application to Transfer Denied Nov. 19, 1996.

John L. Oliver, Jr., Oliver, Oliver & Waltz, P.C., Cape Girardeau, for defendant-appellant.

John L. Cook, Thomasson, Gilbert, Cook, Remley & Maguire, L.C., Cape Girardeau, for plaintiffs-respondents.

SHRUM, Judge.

John Morse, M.D. (Defendant) appeals from a judgment adverse to him in a medical negligence case. ¹ Defendant's principal contention is that Plaintiff's evidence was insufficient to prove the causation element of her case (Point I). In related claims (Points II and V), Defendant charges that the trial court committed reversible error in admitting irrelevant damage evidence and allowing closing argument thereon. Additionally, Defendant claims that the trial court committed reversible error when it refused to dismiss Plaintiff's alternative breach of warranty count and allowed the presentation of evidence thereon (Point III). Finally, Defendant complains that he was prejudiced by the submission to the jury of a physician's video tape deposition without deleting the verbal exchanges and comments between counsel as the deposition was being taken (Point IV).

Finding no reversible error as averred, we affirm.

BACKGROUND FACTS

On November 15, 1991, Plaintiff fell at her home and fractured her left knee. The ultimate diagnosis was that Plaintiff had suffered a comminuted medial tibial plateau fracture. The superior articular surface of the tibia is part of the knee joint. In this case, Plaintiff's medial plateau, which provides 70 percent of the articular surface, was fractured into many pieces. Cartilage in Plaintiff's knee was damaged and it was removed in her initial surgery. However, no damage to cruciate ligaments was noted during this first surgery. Likewise, no tear, deformity, or detachment of Plaintiff's medial collateral ligament was observed at that time.

When taken to a hospital, Plaintiff hired Defendant, an orthopedic physician, to treat her. Defendant opted to repair Plaintiff's knee by internal fixation, a procedure to mobilize the fracture "inside ... under the skin." As he proceeded, Defendant determined that part of the fragmented medial tibial plateau was "compressed down[,]" approximately "half an inch to an inch." Upon elevating the plateau, he found "a large defect there [from bone damage,]" such that a "hole would still be there if you just put it in a cast[.]" Defendant testified that he knew of Plaintiff's medical history and conditions, which included a fractured left patella in 1980, osteoarthritis in her left knee, osteoporosis, and peripheral vascular disease. Possessed with that knowledge and also his observations of the quality of Plaintiff's bone, Defendant chose to use bone cement and screws as internal fixation rather than a bone graft and buttress plate method of internal fixation. As to his decision not to use the latter procedure, Defendant testified that he was "concerned about the ability of the bone to regenerate[,]" that he did not feel that the buttress plate would give additional support and that "in this particular situation, as soon as the knee started moving, the bone graft would simply collapse on itself."

By January 2, 1992, approximately 45 days after her initial surgery, Defendant noted some medial laxity in Plaintiff's knee, meaning that it was unstable. The instability worsened until on February 5, 1992, Defendant did a total knee reconstruction for Plaintiff. Although Defendant would have preferred to have used a resurfacing prosthesis for Plaintiff, he was unable to do so because of her bone loss and ligament laxity. Instead, he used an offset hinge as Plaintiff's knee joint replacement. He characterized the offset hinge as a "salvage prosthesis" which would eventually loosen. Almost immediately, Plaintiff's knee became infected. After Defendant's efforts to treat Plaintiff's infection were unsuccessful, she employed another physician, Dr. James L. Guyton, an orthopedic specialist in Memphis, Tennessee.

A summary of Dr. Guyton's testimony follows. When he first saw Plaintiff on May 22, 1992, "[s]he had an infected hinge knee replacement" and the hinge was loose. The hinge prosthesis has a higher rate of infection than the resurfacing type and Plaintiff's infection was contributed to by the fact that the hinge device was used. Dr. Guyton removed her knee prosthesis and commenced treating her infection. Later, he did a knee replacement for Plaintiff in which he used a custom "total condylar 3" prosthesis. He estimated its life expectancy as: "somewhere around five [years]--I think it will fail before ten years." Dr. Guyton also would have preferred to use a "resurfacing" prosthesis. He based his opinion that it is a superior prosthetic on its longer life expectancy and lower infection risk. Statistically, 94 percent of the "resurfacing" type prostheses are still good after ten years. However, once Defendant used cement rather than bone grafting in his internal fixation, the resurfacing prosthesis was no longer an option. To use the resurfacing prosthesis, the hole in Plaintiff's medial tibial plateau had to be filled with bone--not cement--and the knee ligaments had to remain intact. By using cement, Defendant filled the defect but the cement had no potential for becoming bone. As "the body cannot heal to cement," Plaintiff suffered additional bone loss that extended "below the level of attach[ment] with the medial collateral ligament." Moreover, when the cement came loose, as was expected, the resulting hole in Plaintiff's bone was too large to permit use of the resurfacing device.

Based on what Dr. Guyton saw when he operated on Plaintiff's knee and also on his interpretation of her initial x-rays, he was of the opinion that he "could have grafted" her knee. Such bone grafting and use of a buttress plate--rather than cement and screws--"[would] have saved her medial collateral ligaments" and would have made the resurfacing prosthesis a viable option. Dr. Guyton concluded that Defendant's initial treatment of Plaintiff's fractured knee by means of cement and screws was unacceptable and that in so doing, Defendant "fail[ed] to use that degree of skill, care and learning that an ordinarily careful and prudent orthopedist would have used in the same or similar circumstances." As a consequence, Plaintiff was deprived of the opportunity of having the more durable resurfacing prosthesis. Moreover, if the resurfacing prosthesis had been used and if it had failed during Plaintiff's lifetime, it could have been replaced with another type prosthesis "that would have lasted her for her reasonable life expectancy." As it now stands, however, when her present prosthesis fails, Plaintiff will probably not be eligible for another knee replacement due to bone loss and problems with her extensor mechanism. In that event, Plaintiff's knee joint will either be fused solid or will be removed, thus leaving the knee floppy.

Additional facts are given elsewhere when necessary for our analysis of Defendant's points relied on.

POINT I--CAUSATION

We set forth the pertinent part of Defendant's first point:

"[P]laintiffs failed to make a submissible case when they failed to adduce evidence of 'but for' and proximate causation in that ... Plaintiffs' only expert testified without contradiction that the use of a hinge-type (Gueper) prosthesis by ... Defendant was not negligent, and further testified that but for the intervening infection, an ordinary complication of knee surgery, ... Plaintiff would not be in her present condition, yet Plaintiffs' evidence failed to establish that the infection was a result of negligence, and therefore the evidence was insufficient as a matter of law to establish either a 'but-for' or proximate causal relationship between ... Defendant's negligent use of bone cement in the original repair and any injury suffered or sustained by ... Plaintiff." (emphasis added)

"To make a submissible case, substantial evidence is required for every fact essential to liability." Eidson v. Reproductive Health Services, 863 S.W.2d 621, 626 (Mo.App.1993). "Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case." Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 880 (Mo.App.1985).

In considering whether Plaintiff made a submissible case we review all the evidence in the light most favorable to her and disregard all contrary evidence. Hiers v. Lemley, 834 S.W.2d 729, 732 (Mo. banc 1992). We presume Plaintiff's evidence to be true and give her the benefit of all reasonable and favorable inferences to be drawn from the evidence. Loomstein v. Medicare Pharmacies, Inc., 750 S.W.2d 106, 112 (Mo.App.1988).

To establish a submissible medical malpractice case, Plaintiff must establish: (1) that the alleged act or omission failed to meet the requisite medical standard of care; (2) that the act or omission was performed negligently; and (3) a causal connection between the act or omission and the plaintiff's injury. Hiers, 834 S.W.2d at 732.

"The 'but for' causation test provides that 'the defendant's conduct is a cause' of the event if the event would not have occurred 'but for' that conduct." Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860-61 (Mo. banc 1993) (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS, § 41, at 266 (5th ed. 1984)). "Put simply, 'but for' causation tests for causation in fact. Mere logic requires causation in fact." Id. at 861.

"[T]he 'but for' test continues to apply to the vast majority of cases in Missouri." Callahan, 863 S.W.2d at 862. It is the test for causation that "is applicable in all cases...