Gridley v. Johnson, 55563

• Decision Date: 10 January 1972
• Docket Number: No. 1,No. 55563,55563,1
• Citation: 476 S.W.2d 475
• Parties: Mr. and Mrs. Larry E. GRIDLEY, Plaintiffs-Appellants, v. Morris JOHNSON et al., Defendants-Respondents
• Court: Missouri Supreme Court

Page 475

476 S.W.2d 475

Mr. and Mrs. Larry E. GRIDLEY, Plaintiffs-Appellants, v.Morris JOHNSON et al., Defendants-Respondents.

No. 55563.

Supreme Court of Missouri, Division No. 1.

Jan. 10, 1972.

Motions for Rehearing or to Transfer to Court En Banc Denied

Feb. 22, 1972.

Elwyn L. Cady, Jr., Independence, for appellants.

William H. Woodson, of Spencer, Fane, Britt & Browne, Kansas City, for appellees Johnson, Doane and Botwin.

Clem W. Fairchild, of Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for appellee Baptist Memorial Hospital.

SEILER, Judge.

The plaintiffs, husband and wife, sued three doctors and a hospital for damages caused the wife by the failure of the defendants to make a pregnancy test before doing a dilatation and curettage (referred to by the doctors as a 'D and C') and a gall bladder operation on her, when, in fact, she was pregnant and delivered a child seven months later.The court dismissed the hospital before the trial, dismissed defendant Doane at the close of the evidence, and the jury returned a verdict in favor of the other two doctors, Johnson and Botwin.

The plaintiffs appeal, ¹ claiming various trial errors, which the defendants dispute as well as claiming plaintiffs did not make a submissible case.

We first overrule the latter contention.Here, as in MacDonald v. Metropolitan St. Ry. Co., 219 Mo. 468, 118 S.W. 78, 81, '. . . The testimony is ladened with a luxuriant medical terminology quite useless for the administration of justice . . .'And here, as in that case, we will content ourselves '. . . with shortly giving the tendency of it in everyday speech'.Proceeding accordingly, there was competent evidence from which the jury could find that the medical profession in the Kansas City area does not perform the operations here involved on a woman of child bearing age who has symptoms consistent with pregnancy without first determining whether she is pregnant; that this admittedly was not done in this case, and although the patient did not miscarry and the fetus was not injured by the surgery, the health of plaintiff wife was impaired and she suffered mental anguish concerning possible injury to the unborn child.

Plaintiffs raise the point that the court erred in overruling their objection to argument by defendants' counsel about the inference the jury should draw from the failure of plaintiffs to produce as witnesses two doctors Mrs. Gridley saw a year and a half or so after the surgery.

The matter arose this way: In Mrs. Gridley's direct examination, the only doctors she mentioned were Drs. Johnson, Doane and Botwin, all in connection with the surgery, and Dr. Buckner, who delivered the baby.She testified she still had soreness in her stomach, was not able to keep up her housework, and unable to accept outside employment.On her cross-examination, defendants brought out that in July 1967, on the recommendation of Dr. Buckner, because she was not feeling well and had diarrhea, she went to a Dr. Hoadley.Then, in August 1967, the Gridleys moved to Jefferson City, where they resided two years, and in Jefferson Cityshe saw a Dr. Strait.Mrs. Gridley testified this was in the emergency ward, that he was an intern, she saw him one time, and was not to go back.It does not appear in the record what her complaint was to Dr. Strait or what he did.Then the Gridleys moved to Atlanta, Georgia, where she had a polyp removed and a D and C, which she testified was the same thing Dr. Johnson was supposed to have done.

On re-direct, she testified that while she was living in Grandview she took various preparations purchased at a health store, 'for ulcers, which Dr. Hoadley said I had'.

Plaintiffs' counsel, in opening argument, devoted most of his time to the liability issue, saying little about damages and making no mention of Drs. Hoadley and Strait.

Defendants' counsel spent most of his argument on lack of proof of injury and damage to Mrs. Gridley.About a third of the way through his argument, counsel said: 'Furthermore, regarding this damage, the fact that Mrs. Gridley has only been to doctors three or four times in the years since . . . is strong indication . . . this lady hasn't suffered any damage.After Dr. Botwin's treatment she saw Dr. Hoadley for a little while for some diarrhea . . . there is no evidence . . . diarrhea . . . had anything to do with the surgery . . . Some year after that, she saw a doctor down in Jefferson City . . . one time, found an ulcer . . . (T)here is no evidence . . . an ulcer some two years later is in any way whatever related to this case.If there had been a doctor that would say these things, don't you really believe that doctor would have been brought in here by these people to tell you this?'(emphasis supplied).At this point, plaintiffs' counsel objected.The objection was overruled.

Defendants' counsel continued: 'Gentlemen, what isn't in evidence maybe is as important as what was evidence in some respects about these damages.It's the law of the State of Missouri that if plaintiff fails to call a doctor who has taken care of her and who has been her attending doctor, at the time of a lawsuit, the jury is entitled to infer by his absence, gentlemen, that his testimony would be contrary to her position'(emphasis supplied).

Plaintiffs' counsel again objected.This time the court sustained the objection, but declined to instruct the jury to disregard the argument.²Defendants' counsel then immediately said as follows: 'Gentlemen, if these doctors would have supported plaintiffs, isn't it reasonable to think they would have been here and testified?'(emphasis supplied).Plaintiffs' counsel again objected.The objection was overruled.

We believe it is clear from the above that defendants were permitted to argue to the jury the fact plaintiffs did not produce Dr. Hoadley and Dr. Strait meant the two doctors would not have supported the plaintiffs and the jury should so regard it.Was this proper under the circumstances of this case?We rule it was not.

Under State ex rel. McNutt v. Keet, (Mo.Sup. banc), 432 S.W.2d 597, in a damage suit, once issue has been joined on the question of damages, plaintiff will be taken to have waived the patient-physician privilege so far as discovery is concerned.Once the privilege is thus waived, defendant can proceed, for example, to take the deposition of plaintiff's attending doctor or those doctors who have information bearing on the claims plaintiff is asserting against defendant.

Does this waiver mean that plaintiff's doctors are equally available so that defendant cannot comment on plaintiff's failure to produce her doctor?Our answer is that the McNuttcase, supra, does not stand for the proposition that all the doctors are thereby equally available.The fact that a doctor under McNutt is subject to a deposition where he would not have been before McNutt, does not necessarily mean that he is equally available.Many witnesses all along have been subject to having their depositions taken, but they are nevertheless not equally available.A spouse, for example, would be subject to deposition; so would an employee or a subordinate, so would a relative, but it does not follow that their being subject to a deposition means that if they are available and not produced as witnesses, the opposing party may comment on the non-production.There is more involved here than simply being subject to deposition.

On this point, the reasoning set forth in Chavaries v. National Life & Accident Ins. Co. of Tennessee, (Mo.App.)110 S.W.2d 790, 794, is still sound, the court saying as follows: 'Now the term 'available,' in the sense in which we are using it, does not mean merely available or accessible for the service of a subpoena, since any witness who can be found may be subpoenaed at the instance of either party to a cause.To the contrary, the question of whether a witness is 'available' to one or the other of the contending parties depends upon such matters as the one party's superior means of knowledge of the existence and identity of the witness, the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case, and the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation, and make it natural that he would be expected to testify in favor of the one party and against the other.In other words, a witness may be said to have been peculiarly 'available' to one party to an action, so that upon that party's failure to have produced him in court an inference will arise that his testimony would have been unfavorable, when, because of such party's opportunity for knowledge of or control over the witness, or the community of interest between the two, or the prior statements and declarations of the witness, it would be reasonably proper that the witness would have been called to the trial to testify for such party except for the fact that it was either known or feared that his testimony on the stand would have been damaging rather than favorable . . .'

However, while the McNuttcase, supra, as stated, does not permit plaintiffs to assail defendants' argument on the basis that the two doctors--Hoadley and Strait--were equally available and hence their absence did not permit the inference argued by defendants, it does not follow that because the two doctors were not equally available the defendants were entitled to make the argument they did.The difficulty is that there is nothing in the record to show that Drs. Hoadley and Strait had any knowledge about the claims which defendants say they should have been brought in to support.There is nothing to show that either had any knowledge or opinion relating to the question of whether there should have been a pregnancy test given Mrs. Gridley prior...