Green v. Fleishman, WD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLOWENSTEIN
Citation882 S.W.2d 219
PartiesRoselyn and Dorvin GREEN, Appellants, v. Sheldon FLEISHMAN, D.P.M., Upjohn Healthcare Services, Inc., and Caremark, Inc., Respondents. 48233.
Docket NumberNo. WD,WD
Decision Date21 June 1994

Page 219

882 S.W.2d 219
Roselyn and Dorvin GREEN, Appellants,
Sheldon FLEISHMAN, D.P.M., Upjohn Healthcare Services, Inc.,
and Caremark, Inc., Respondents.
No. WD 48233.
Missouri Court of Appeals,
Western District.
June 21, 1994.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Aug. 2, 1994.
Application to Transfer Denied Sept. 20, 1994.

Page 220

Robert D. Kingsland, Thomas R. Davis, Dempsey & Kingsland, Kansas City, for appellants.

G. Keith Phoenix, Carolyn L. Trokey, Sandberg, Phoenix & von Gontard, St. Louis, for respondent-Caremark, Inc.

John W. Cowden, Mary C. O'Connell, Baker, Sterchi & Cowden, Kansas City, for respondent-Upjohn Healthcare Services.

Steven G. Emerson, Melody L. Nashan, Watson, Ess, Marshall & Enggas, Kansas City, for respondent Sheldon Fleishman, D.P.M.


LOWENSTEIN, Presiding Judge.

Roselyn Green and her husband, Dorvin Green, appeal from an order of the trial court granting a directed verdict in a medical negligence case, on behalf of defendants Sheldon Fleishman, D.P.M., Upjohn Healthcare Services, Inc., and Caremark, Inc. The Greens contend the trial court first erred by striking the testimony of their only expert witness on the issue of causation and then granting a directed verdict.

The core issue on appeal is the court's striking of plaintiffs' expert's trial testimony, which opined medical negligence by the defendants, which came without explanation over one year following the expert's deposition where, when asked the same question, he reached no opinion as to negligent treatment or care.

In April, 1988, Roselyn Green was hospitalized for a foot infection at the Medical Center of Independence, where her treatment was managed by Steven Gialde, D.O. and respondent, Dr. Fleishman, a podiatrist, who acted as a consultant. As part of her treatment, Mrs. Green was given periodic dosages of gentamicin, an antibiotic, the use of which may result in possible toxic side effects. During her hospitalization, Mrs. Green was monitored to ensure that the levels of the drug in her blood were safe.

After eleven days of hospitalization, Mrs. Green continued the intravenous gentamicin therapy at home under the supervision of home health care providers, Upjohn Healthcare Services, Inc. and Caremark Inc. The defendant, Caremark, acted as the pharmacy and compounded the medication; the defendant, Upjohn's role as home healthcare agency, was to visit the home 3 days per week and, as relevant here, help with out-patient administration of medication. Despite the fact that Mrs. Green was receiving gentamicin at the same dosage and frequency as she received at the hospital, Gialde did not order out-patient monitoring to ensure that the quantity of the drug in her system did not exceed safe levels. As stated in the previous paragraph, gentamicin is a powerful drug which may accumulate in the blood with toxic effects, which then outweigh its therapeutic effect.

On May 10, 1988, after seventeen days of unmonitored home gentamicin therapy, Mrs. Green suffered a spell of dizziness and a loss of balance. These problems persisted and the Greens filed this petition alleging medical negligence for Mrs. Green's permanent dizziness and disequilibrium, loss of consortium, and sought damages from Dr. Fleishman, Dr. Gialde, Upjohn Healthcare Services, Inc., and Caremark, Inc. The basic theory of the lawsuit was Mrs. Green should have been monitored for toxic side effects of gentamicin following her hospitalization and that all the defendants owed her a duty to monitor. Dr. Gialde subsequently settled with the Greens for $425,000.00.

Dr. Larry Rumans, the Greens' medical expert on the issue of causation, was deposed prior to trial. During his deposition, Dr. Rumans was asked numerous questions about the dosages of gentamicin and the relationship of the drug to Mrs. Green's condition:

Q. [DEFENSE COUNSEL]: And, in fact, sir, are you able to point to anything in the medical records that suggests that Mrs. Green's blood levels of this medication exceeded the maximum therapeutic level?

A. [DR. RUMANS]: Not during her hospitalization.

Q. Are you able to point to anything which would suggest that if those blood

Page 221

levels were on the low side, given the certain dosage of Gentamicin during hospitalization, that they would have been expected to exceed therapeutic levels during out-patient therapy?

A. Well, the whole point is, Mr. Emerson, that we have no data as to what occurred as an outpatient, and so it is all speculation.

Q. That really is my point, I guess. You are not rendering an opinion, are you, that Mrs. Green's imbalance problems resulted from concentrations of Gentamicin in her blood that exceeded maximum therapeutic levels, are you?

A. Well, you see that is just it. We don't know.

Q. Well, that is my question, you are not suggesting that, are you?

A. I am not necessarily suggesting it, but I am saying that it could have happened.

Q. Okay. My question is whether or not you hold an opinion within a reasonable degree of medical certainty as to whether or not Mrs. Green's blood levels of Gentamicin exceeded the maximum therapeutic or the allowable therapeutic doses while she was an outpatient?

A. I have no opinion.

Q. Okay. My next question is whether you hold an opinion within a reasonable degree of medical certainty as to whether the ototoxic effects, which you believe Mrs. Green suffered, resulted from excessive blood levels of Gentamicin?

A. I believe that the ototoxicity that was experienced occurred as a result of excessive aminoglycosides, accumulation and concentration at the site...

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    • April 22, 1997
    ...discretion in excluding or admitting evidence which has not been disclosed in response to appropriate discovery. Green v. Fleishman, 882 S.W.2d 219, 222 (Mo.App.1994). A trial court can exclude such evidence or impose other appropriate sanctions. Id. When an expert witness has been deposed ......
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