Grippe v. Momtazee

• Citation: 705 S.W.2d 551
• Decision Date: 14 January 1986
• Docket Number: No. 47512,47512
• Parties: Joseph GRIPPE, Plaintiff-Appellant, v. Dr. Sam MOMTAZEE and St. Louis Ob-Gyn Group, Inc., Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

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705 S.W.2d 551 Joseph GRIPPE, Plaintiff-Appellant,
v.
Dr. Sam MOMTAZEE and St. Louis Ob-Gyn Group, Inc.,
Defendants-Respondents. No. 47512. Missouri Court of Appeals,
Eastern District,
Division Four. Jan. 14, 1986.
Motion for Rehearing and/or Transfer
Denied Feb. 11, 1986.
Application to Transfer Denied
March 25, 1986.

Page 552

Samuel A. Goldblatt, Fox, Goldblatt & Singer, Inc., St. Louis, for plaintiff-appellant.

Joseph M. Kortenhof, Kortenhof & Ely, St. Louis, for defendants-respondents.

CARL R. GAERTNER, Presiding Judge.

This medical malpractice-wrongful death action is before this court for the second time. On plaintiff's appeal from a jury verdict and judgment in favor of defendants, we earlier ruled that plaintiff had failed to sustain his burden of proving a causal relationship between the alleged negligence of defendants and the death of his wife. The Supreme Court sustained a motion to transfer and has now remanded the appeal to this court with directions that we consider various allegations of trial court error. We are directed to address the issue of submissibility only in the event we first determine that plaintiff is entitled to a new trial. Grippe v. Momtazee, 696 S.W.2d 797 (Mo. banc 1985).

Plaintiff asserts trial court error 1) in the giving of Instruction No. 7 on contributory negligence, 2) in prohibiting his use of certain medical literature in cross-examination, 3) in quashing a subpoena duces tecum seeking production of records pertaining to other patients of the defendant, and 4) in excluding certain portions of deposition testimony. We address each issue in order.

I. Contributory Negligence Instruction

Plaintiff's contention that the trial court erred in giving Instruction No. 7 on contributory negligence necessitates a review of the evidence. We hasten to point out

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that in our earlier opinion, circulated but never officially published, we viewed the evidence in the light most favorable to plaintiff in determining the issue of submissibility. Conversely, in considering the propriety of a contributory negligence instruction, we must view the evidence in the light most favorable to the defendants, giving them the benefit of all favorable inferences reasonably to be drawn from all of the evidence. Plaintiff's evidence is to be disregarded unless it tends to support the grounds of contributory negligence submitted in the instruction. Welch v. Hyatt, 578 S.W.2d 905, 912 (Mo. banc 1979).

Plaintiff's wife, Marie Grippe, had been a patient of Dr. Hutto, a gynecologist, from 1969 until the doctor's death in 1978. During that time she had a hysterectomy and a cyst in her left breast which Dr. Hutto aspirated. After his death, she consulted Dr. Momtazee. She was first examined by defendant on January 11, 1979. Mrs. Grippe, by deposition taken before her death, said she complained of pain in the area of a lump in her right breast. However, Dr. Momtazee testified and his office records reflected her sole complaint was soreness of both breasts. On examination both breasts were found to be "100% normal, negative." He instructed her to return in six months because "at one time I may find nothing wrong, and 6 months later you could have a problem." Mrs. Grippe claimed the lump continued to grow larger. She had read articles about lumps in the breast and was aware that increase in the size of a lump should be brought to the attention of a doctor without delay. Nevertheless, she did not return to the doctor until August 21, 1980, 19 months later. Her reason for the delay was that she was too involved in her work at the company she and her husband owned. She testified her time was more valuable. On this examination, Dr. Momtazee noted lumps in both breasts. Although he thought they were cysts, he suggested she consult a surgeon and recommended the names of two doctors she might see. She did not follow this suggestion but returned to Dr. Sam Momtazee on March 19, 1981. This examination disclosed a two centimeter by two centimeter lump in the right breast. She was immediately referred to a surgeon previously recommended. A biopsy revealed the lump to be a poorly differentiated anaplastic tumor. A modified radical mastectomy was performed and it was found that the cancer had metastasized, involving two lymph nodes. Subsequent treatment was unavailing and Mrs. Grippe died on March 11, 1983.

This action was commenced by Mrs. Grippe and her husband prior to her death. The amended petition of her husband, filed on April 14, 1983, charged that Dr. Momtazee, individually and as the employee of St. Louis Ob-Gyn Group, Inc. negligently failed to diagnose his wife's breast cancer and that this negligence resulted in her death. At trial, plaintiff introduced the deposition testimony of a lawyer-doctor from Chicago, Robert Bouer. He testified that it was a deviation from accepted medical practice to fail to refer any 57 year old woman with a complaint of breast soreness to a surgeon or for mammography. He agreed that Dr. Momtazee was guilty of no negligence on the third visit. Further, he testified that if the doctor had suggested Mrs. Grippe see a surgeon on the second visit, this was in conformity with accepted practice. His criticism was leveled at the failure to make a reference at the January 11, 1979 visit.

The case was submitted to the jury under the following instructions:

INSTRUCTION NO. 5

Your verdict must be for plaintiff Joseph Grippe and against defendants Dr. Sam Momtazee and St. Louis OB-GYN Group, Inc., a corporation, if you believe:

First, plaintiff was the spouse of Marie Grippe, and

Second, defendant Dr. Sam Momtazee failed to diagnose breast cancer, and

Third, defendant Dr. Sam Momtazee was thereby negligent, and

Fourth, as a direct result of such negligence Marie Grippe died, unless you

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believe plaintiff is not entitled to recover by reason of Instruction No. 7.

The term "negligent" or "negligence" as used in this instruction means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant's profession.

INSTRUCTION NO. 7

Your verdict must be for defendants if you believe:

First, Marie Grippe failed to return to Dr. Momtazee following the January 11, 1979, visit until August 21, 1980, contrary to Dr. Momtazee's instructions, and

Second, Marie Grippe was thereby negligent, and

Third, such negligence of Marie Grippe directly caused or directly contributed to cause any damage plaintiff may have sustained.

The term "negligent" or "negligence" as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.

In attacking the contributory negligence instruction, plaintiff overlooks the differences between appellate review of submissibility of a plaintiff's case and appellate review of a contributory negligence submission. First of all, we view the evidence in the light most supportive of the instruction and the verdict. Welch v. Hyatt, supra; Lane v. Cape Mutual Insurance Co., 674 S.W.2d 644, 645 (Mo.App.1984). Additionally, as lucidly explained in Tomlin v. Alford, 351 S.W.2d 705 (Mo.1961), a defendant, not voluntarily before the court, must plead and submit all defenses available to him even though they be inconsistent. In Tomlin, the Supreme Court approved the submission of a contributory negligence instruction supported by plaintiff's evidence even though the defendant's evidence consisted of a denial of the incident and a denial of the negligent act. Overruling prior decisions, the Supreme Court stated that although "a plaintiff may not predicate recovery upon a theory which is contrary to his own positive evidence," this rule does not apply to a contributory negligence submission. Id. at 711 (emphasis in the original). Were the defendant bound by the same rule as the plaintiff, said the Tomlin court, he "would be in the dilemma of being forced to select and submit at his peril only one of his valid defenses, thereby being deprived, for no good reason, of the very defense which, if submitted, may have gained him acquittance of the liability charged." Id. at 710. This principle is also noted in Ellison v. Simmons, 447 S.W.2d 66, 71 (Mo.1969).

Based upon these principles we accept as true Dr. Momtazee's testimony, supported by his office records, that he attempted to refer Mrs. Grippe to a surgeon on the occasion of the second visit on August 21, 1980, and we disregard her contrary evidence. Plaintiff's expert testimony was that referral to a surgeon conformed to the appropriate standard of care; therefore, viewed in this light, the only possible negligence on the part of Dr. Momtazee was his failure to discover the lump Mrs. Grippe said existed on January 11, 1979. Her failure to follow his instruction to return in 6 months, even though the lump was continually enlarging and she had read articles concerning the import of this fact, obviously contributed to the delay in surgical intervention until after metastasis. ¹

Plaintiff's expert testimony was to the effect that a cancer patient's chances of survival are reduced if surgical intervention is not undertaken before the carcinoma changes from...