Hammer v. Waterhouse

• Citation: 895 S.W.2d 95
• Decision Date: 24 January 1995
• Docket Number: No. WD,WD
• Parties: Angela HAMMER, Appellant, v. George WATERHOUSE, M.D., Respondent. 49549.
• Court: Missouri Court of Appeals

Page 95

895 S.W.2d 95

Angela HAMMER, Appellant, v. George WATERHOUSE, M.D., Respondent.

No. WD 49549.

Missouri Court of Appeals,

Western District.

Jan. 24, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 28, 1995.

Application to Transfer Denied April 25, 1995.

Zel M. Fischer, Rockport, for appellant.

Randa Rawlins, Kansas City, for respondent.

Before FENNER, C.J., P.J., and HANNA and LAURA DENVIR STITH, JJ.

FENNER, Chief Judge.

Appellant, Angela Hammer, by and through her mother and Next Friend, Deneise Bird, appeals the judgment of the Circuit Court of Jackson County, Missouri, against her and in favor of respondent, Dr. George Waterhouse.

Angela brought suit against Dr. Waterhouse and others for medical malpractice. As a brief background, Angela was born with a congenital heart defect known as pulmonary stenosis. ¹ In December of 1979, Dr. Antoni Diehl at Children's Mercy Hospital in Kansas City, Missouri (Children's Mercy), recommended surgical correction of Angela's pulmonary stenosis. Shortly thereafter, when Angela was five years old, she underwent surgery to correct this condition. The surgery was performed on May 5, 1980 by Dr. Keith Ashcraft and Dr. George Waterhouse, a visiting surgery resident at Children's Mercy. Angela was released from the hospital on May 9, 1980, apparently in good condition.

On May 24, 1980, Angela became ill and was vomiting. On that day, Angela's mother took her to see Dr. Olin Mauldin at Prime Health. Dr. Mauldin diagnosed Angela as having the flu. On May 27, 1980, Angela's mother believed that Angela was well enough to return to preschool. When Angela's mother picked her up at preschool that day, the school advised her that Angela had been queasy and slept most of the afternoon.

On May 28, 1980, Mrs. Bird had her sister babysit Angela at home rather than send her to school. At 11:00 a.m., Mrs. Bird called home and learned that Angela's color was bad. Mrs. Bird went home from work and, according to Mrs. Bird's testimony, Angela's "mouth was real blue, and her gums were purple, and her skin was real gray looking, and she just looked real sick." Mrs. Bird took Angela to see Dr. Ronald Nicholis, and from there Angela was transported by ambulance to Children's Mercy.

Upon arrival at the hospital, Angela was seen by Dr. Waterhouse and another physician. Dr. Waterhouse told Mrs. Bird that fluid had built up around Angela's heart (a condition known as cardiac tamponade) that would have to be removed by surgical procedure. ² The procedure was to be performed by Dr. Thomas Holder who was involved in another operation at the time. During the procedure, which was performed by Dr. Holder, Angela suffered a heart fibrillation ³ and her brain was without oxygen for six minutes. As a result of the oxygen deprivation to her brain, Angela was rendered a spastic quadriplegic and mentally impaired.

Angela brought suit against the physicians and institutions alleged to be negligent, including Dr. Waterhouse. Angela filed her original Petition for Damages on April 8, 1991, naming as defendants Dr. Olin Mauldin, Dr. Antoni Diehl, Pediatric Surgical Associates, P.C., Dr. Keith Ashcraft, Dr. Thomas Holder, Dr. George Waterhouse, Humana, Inc., d/b/a Humana Prime Health, and Children's Mercy. In her petition, Angela alleged joint and several liability among the defendants for medical negligence. Angela filed a First Amended Petition for Damages on April 14, 1993, naming as defendants Dr. George Waterhouse, Dr. Rengasamy Gowdamarajan (Dr. Rajan), Dr. John Bandy, Dr. James Kauten, and Children's Mercy.

On November 24, 1993, Angela filed a Motion for Partial Summary Judgment on the issue of liability against Dr. Waterhouse, the only defendant remaining in the lawsuit. ⁴ Angela alleged that Dr. Waterhouse was acting in concert with the other physicians treating Angela at Children's Mercy whom Dr. Waterhouse admitted were negligent. Therefore, Angela alleged, Dr. Waterhouse is vicariously liable for the negligence of those other physicians, and is jointly and severally liable for the injuries caused to Angela by that negligence. On January 19, 1994, however, the trial court denied Angela's Motion for Partial Summary Judgment.

After trial by jury, a verdict was entered against Angela and in favor of Dr. Waterhouse and the court entered judgment accordingly on February 24, 1994. Angela filed a Motion for Judgment Notwithstanding the Verdict or, in the alternative, Motion for New Trial on March 7, 1994, which motion was denied. This appeal followed.

I.

In her first point on appeal, Angela argues that the trial court erred in refusing to grant her motion for summary judgment and motion for directed verdict on the issue of liability as a matter of law because Dr. Waterhouse "judicially admitted vicarious liability in that he admitted in interrogatory answers and in testimony that those with whom he was acting in concert were negligent and that their negligence caused [Angela's] damages."

Initially we note that a denial of a motion for summary judgment is not subject to appellate review. Southwest Regional Joint Bd. of Amalgamated Clothing & Textile Workers Union v. Barcus, 860 S.W.2d 29, 31 (Mo.App.1993) (citations omitted). Thus, insofar as Angela's claim challenges the denial of her motion for summary judgment, such claim is not subject to our review and is denied. ⁵

Angela's point on appeal, however, also challenges the trial court's denial of her motion for directed verdict on the issue of liability which motion was filed on February 23, 1994. We review this challenge in Angela's first point.

Appellate review of a denied directed verdict motion is a question of law. Lee v. Hartwig, 848 S.W.2d 496, 500 (Mo.App.1992). A trial court should grant a directed verdict only if reasonable persons would not differ on the correct disposition of the case. Id. Directed verdicts in favor of the parties bearing the burden of proof are not favored, and are considered drastic. Id. However, a directed verdict may be granted against a defendant when he admits in pleadings, by counsel, or in individual testimony to the truth of the basic facts supporting the plaintiff's claim. Id. As was stated in Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 693 (1942):

It is a generally accepted rule in this state that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof.... There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass (emphasis added).

Missouri courts have often quoted and applied the rule set forth in Coleman. Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993). In Brandt, the Missouri Supreme Court stated:

Except for the part of the Coleman rule concerning undisputed documentary proof, a directed verdict is not given in favor of the party having the burden of proof no matter how overwhelming that party's evidence may be or how miniscule the other party's evidence may be; a directed verdict in favor of the party having the burden of proof (usually the plaintiff) is never based upon the plaintiff's evidence. This is in recognition of the fact that the defendant, who has the benefit of the burden of proof, is entitled to try the case with no evidence at all and to rely solely upon the jury disbelieving the plaintiff's evidence. This strategy may result in a loss for the defendant, but it will not be on a directed verdict; the defendant is entitled to have the case go to the jury.

Id. at 664-65 (emphasis added).

To make a prima facie case of medical malpractice, plaintiff must establish that the act or omission of the defendant failed to meet the requisite medical standard of care, the act or omission was performed negligently, and there was a causal connection between the act or omission and the injury sustained by the plaintiff. Tompkins v. Kusama, 822 S.W.2d 463, 464 (Mo.App.1991). With regard to vicarious liability for the negligence of another physician, the general rule is that physicians independently employed or acting independently in the case are not vicariously liable, unless the one observed, or, in the exercise of ordinary care, should have observed, the wrongful act of the other. Crump v. Piper, 425 S.W.2d 924, 928 (Mo.1968). Vicarious liability has been imposed in some circumstances where the physicians were jointly employed or were acting jointly or "in concert" in the case. Id. In the verdict director submitted by appellant (Instruction No. 6), "acting in concert" is defined as "two or more persons ... acting jointly, not independently, to plan, agree on and provide medical care."

Even though doctors may share responsibility for the care and treatment of the patient, Dr. A is not liable for the negligent treatment given by Dr. B if Dr. A exercised no control over Dr. B's treatment of the patient and there is no evidence that Dr. A had any right to do so. Bottger v. Cheek, 815 S.W.2d 76, 82 (Mo.App.1991). In other words, if the evidence fails to show that Dr. A (who is being sued for medical malpractice based upon the negligence of Dr. B) controlled or had the right to control Dr. B in...