Hackman v. Dandamudi

• Decision Date: 12 November 1986
• Docket Number: No. 50457,50457
• Citation: 733 S.W.2d 452
• Parties: Alma HACKMAN, Plaintiff-Respondent, v. Babu R. DANDAMUDI, M.D., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 452

733 S.W.2d 452

Alma HACKMAN, Plaintiff-Respondent, v.Babu R. DANDAMUDI, M.D., Defendant-Appellant.

No. 50457.

Missouri Court of Appeals,

Eastern District,

Division Three.

Nov. 12, 1986.

Motion for Rehearing and/or Transfer Denied Dec. 16, 1986.

Case Transferred to Supreme Court Feb. 17, 1987.

Case Retransferred to Court of Appeals May 27, 1987.

Original Opinion Reinstated June 1, 1987.

Brent W. Baldwin, St. Louis, for defendant-appellant.

Robert F. Ritter, St. Louis, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

Dr. Babu R. Dandamudi appeals from a judgment entered in the Circuit Court of the City of St. Louis following a jury trial and verdict for both actual and punitive damages against him, and his co-defendant, Professional Care Centers, a corporation doing business as Oak Park Professional Care Nursing Home, hereinafter Oak Park, and in favor of the plaintiff, Alma Hackman on a medical malpractice claim.We affirm.

The action was brought by Carolyn Hackman, plaintiff's daughter, in her legal capacity as plaintiff's guardian and conservator.During the pendency of this appeal, plaintiff died.However, Carolyn Hackman, now acting as the representative of plaintiff's estate continues to defend this appeal.

The events that led to the action began in February 1983 when appellant, plaintiff's personal physician, recommended that plaintiff be placed in a nursing home.At that time, plaintiff, who was a diabetic, was also suffering from incontinence and her behavior was often irrational.After visiting several homes and consulting with appellant, Carolyn Hackman chose Oak Park.However, between February and early June of 1983, when Carolyn left for a summer vacation in Colorado, she became increasingly concerned about the cleanliness of the home and the monitoring of her mother's condition.Because of her concern, she wrote both the director of nursing at Oak Park and appellant on June 12, 1983 from Colorado.After receiving the letter addressed to him, appellant contacted Carolyn and reassured her that he would keep a close watch on plaintiff during the summer.

On June 22, 1983, appellant was contacted by someone at Oak Park and informed that plaintiff had a blister on her right heel.Appellant ordered a heel protector and directed the use of a stoma adhesive, a sticky type bandage which would cover the blister.He also stated that he would check on plaintiff in a day or two.On June 25, he examined plaintiff's right foot and discovered a second sore that had not been reported to him.He attempted to check the peripheral pulse in the foot, and was unable to find one.He ordered the continued use of the heel protector and prescribed an antibiotic to be administered for ten days.

Appellant had no further contact with the home in regard to plaintiff's condition until July 29, 1983 when Carolyn noticed bloody sheets on plaintiff's bed when she visited Oak Park.At that time, she ordered the home to call appellant.Appellant was then contacted and informed that there was bloody pus oozing from the blister.Appellant informed Oak Park that he would visit plaintiff the next day.When he did so, he ordered her transferred to a hospital, where it was later determined that the foot was gangrenous and that amputation was necessary.An above the knee amputation was performed on August 2, 1983.It was determined that the source of the infection which had led to the gangrenous condition was plaintiff's own feces.

Three former Oak Park employees testified that there had been complaints about the home's cleanliness and about patients being left in wet beds.There was no record that plaintiff's urine sugar had been monitored between June 27 and July 30, 1983 and her vital signs were not checked during the month of July.

Evah Johnson, a family friend, testified that the first time she visited the home, plaintiff was lying in her own feces.

The jury awarded $250,000 in actual damages and assessed $75,000 in punitive damages against each defendant.The fault was apportioned thirty percent to appellant and seventy percent to Oak Park.However, prior to the trial, Oak Park and plaintiff's representatives had entered into an agreement whereby Oak Park had agreed to pay plaintiff $100,000 in installments secured by promissory notes and a deed of trust.The agreement also provided that if more than $100,000 in damages was assessed against Oak Park, plaintiff would execute on the judgment only against Oak Park's insurer which was in liquidation at the time.The agreement further provided that plaintiff would execute against appellant only for appellant's proportionate share of the fault and that any amount less expenses recovered from appellant, up to $100,000, would be used to offset the $100,000 that Oak Park had agreed to pay.

When the trial began, the agreement had not yet been reduced to writing, but appellant, his counsel, and the trial judge were informed of the essential elements of the agreement and it was later reduced to writing.

Appellant relies on three points:

I: Appellant should be entitled to a new trial, because the trial from which this appeal was taken, was conducted under the influence of an agreement between plaintiff and co-defendant which should be held invalid as contrary to public policy.

II.If Mary Carter agreements are allowable in Missouri, the trial court erred in failing to order a separate trial, in preventing appellant from introducing portions of the agreement into evidence, and in prohibiting cross examination regarding the agreement as to any witness who might be affected thereby.

III: The trial court erred in allowing plaintiff, over appellant's objection, to read into evidence a lengthy deposition passage wherein a subsequent treating doctor gives a detailed description of the amputation.

We first note that none of appellant's points relied on are in compliance with the requirements of Rule 84.04(d) which are mandatory.

Appellant's first point fails to state what "actions or rulings of the trial court are sought to be reviewed."In his reply brief, he attempts to remedy this by restating his point to read "[t]he trial court erred in failing to grant a mistrial and/or to declare the agreement between plaintiff and home invalid as contrary to public policy...."

The record before this court, however, is devoid of any indication that appellant ever requested such relief, either at trial or in his motion for a new trial.A trial court, except in exceptional circumstances, will not be faulted for failing to grant relief which was never requested.See, State v. Gordon, 649 S.W.2d 903, 907(Mo.App.1983).However, because a public policy issue is involved, appellant's failure to properly preserve and present this issue is not critical.See, White v. McCoy Land Company, 101 S.W.2d 763, 765(Mo.App.1937).Appellant's first point, however, can also be faulted for its failure to give any indication of why Mary Carter Agreements are against public policy.

Appellant's second point states wherein the trial court allegedly erred, but, like point one, it fails to state why the trial court's failure to order a severance was error.Appellant's final point also fails to state why it was error to admit the deposition testimony which described the amputation.However, these inadequacies in the wording of appellant's points are corrected at least partially by appellant's points in his reply brief.

Appellant's violations of Rule 84.04(d) would, as respondent suggests, justify dismissal of his appeal.However, rather than taking the time to give appellant notice of his violations and an opportunity to correct the errors, we will consider the merits, if any, of the points.Empire Gas Corporation v. Small's LP Gas Company, 637 S.W.2d 239, 245(Mo.App.1982).

Appellant contends that this agreement was a so-called Mary Carter Agreement, popularized after the case of Booth v. Mary Carter Paint Company, 202 So.2d 8(Fla.App.1967), and he argues that all such agreements should be held by Missouri courts to be contrary to public policy.

A Mary Carter Agreement is an agreement which limits the agreeing defendant's liability to a specified amount and guarantees the plaintiff that he will receive at least that amount.Such agreements also provide both that the agreeing defendant will remain in the case, without fully disclosing the agreement, and that if judgment for more than the specified amount is obtained against the nonsettling defendant, the money collected will be used first to offset the specified amount, so that the settling defendant may wind up paying nothing.See, Blending Mary Carter's Colors: A Tainted Covenant, 12 Gonzaga Law Review 266, 266-267 (1977).

Respondent contends that the agreement here was not a Mary Carter Agreement, but was rather a valid combination of a loan receipt agreement and the type of agreement authorized by section 537.065 RSMo 1978.

Respondent bases his argument that the agreement here was not a Mary Carter Agreement, on the fact that Oak Park's liability was not limited by the agreement, because the agreement did not limit the liability of Oak Park's insurer and did not place any limitation on respondent's right to proceed against the insurer.However, Oak Park's insurer was in liquidation at the time, and it is clear that neither respondent nor Oak Park believed that the right to proceed against the insurer was very valuable.If Oak Park had expected its insurer to have the capacity to pay, it would have had no reason to enter into this agreement.Thus, in effect this agreement was a Mary Carter Agreement.However, it does not follow that the agreement was necessarily not a valid combination of a loan receipt agreement and an agreement of the type authorized by § 537.065.

A loan receipt agreement allows a person to advance money to a party with the proviso that it must be paid back only if the party obtains a judgment.Section 537.065 allows a...