Hickman v. Branson Ear, Nose & Throat, Inc., No. 27648 (Mo. App. 8/29/2007)
| Decision Date | 29 August 2007 |
| Docket Number | No. 27648.,27648. |
| Court | Missouri Court of Appeals |
| Parties | Roger Hickman and Carla Hickman, Plaintiffs/Respondents v. Branson Ear, Nose & Throat, Inc., Defendant/Appellant, and Michael Bays, D.O., and Skaggs Health Systems, Inc., Defendants. |
Appeal from the Circuit Court of Christian County, Hon. James L. Eiffert.
Susan Ford Robertson, for Appellant.
Steve Garner and Rachel M. Dockery, for Respondent.
Before Bates, C.J., and Lynch, J.
This appeal is from a judgment entered by the Circuit Court of Christian County following a jury verdict rendered in favor of Roger Hickman ("Roger") and Carla Hickman ("Carla") (collectively referred to as "Plaintiffs") on their claim for medical malpractice and loss of consortium against Branson Ear, Nose & Throat, Inc. ("Defendant").
Roger, a music minister, who wrote and recorded gospel music, went to see Dr. Christopher Rittman ("Dr. Rittman), a general practitioner, in April 2001, for a "general checkup" and physical examination. During the examination, Dr. Rittman felt Roger's throat and noticed that something was "going on" with his thyroid. As a result, Dr. Rittman, ordered a CT scan and ultrasound. The ultrasound showed that there were nodules in both the left and right thyroid lobes. In addition, the CT scan showed a large calcified mass about the size of a full thyroid lobe growing off of the lower right pole of the right thyroid. Dr. Rittman referred Roger to Dr. Michael Bays ("Dr. Bays"), a physician and surgeon practicing in Branson, Missouri, for further evaluation. Dr. Bays specialized in the treatment of conditions involving the ears, nose, and throat.
Dr. Bays ordered an ultrasound, which revealed similar findings. He performed a needle biopsy on Roger, the results of which were nonspecific, and therefore, Dr. Bays recommended that Roger undergo surgery. Dr. Bays explained to Roger and Carla that his plan was to remove the entire right thyroid lobe, that he would have the tumor and thyroid examined, and if cancer was found, he would perform a total thyroidectomy, which he explained was a procedure whereby all macroscopic or visible thyroid tissue is removed in both the thyroid lobes.
Dr. Bays performed surgery on Roger at Skaggs Health Systems, Inc., ("Skaggs"), a hospital in Branson, Missouri. During surgery to remove Roger's right thyroid, a frozen section was analyzed which indicated that the tumor was cancerous. Dr. Bays indicated in his medical report that he had performed a total thyroidectomy, removing the right and left lobes, and he told the Plaintiffs that he had performed a total thyroidectomy. Following Roger's surgery, he experienced complications that sent him to the CCU and almost caused his death, including a heart attack which caused damage to his heart.
After Roger's surgery, Dr. Bays referred Roger to Dr. Gregory Ledger ("Dr. Ledger"), an endocrinologist, for further evaluation and treatment. Following a total thyroidectomy, a patient's thyroid hormone level should diminish or fade to nothing. In the meantime, a patient's thyroid stimulating hormone level ("TSH") should rise dramatically because the body recognizes a lack of thyroid, and produces excessive levels of the hormone that stimulates thyroid production. However, when Dr. Ledger performed blood tests on Roger, he found that his thyroid levels were basically normal, did not decrease, and his THS levels did not increase as they should following a total thyroidectomy. Dr. Ledger, therefore, ordered an ultrasound, which showed that Roger's left thyroid lobe had been removed, but that his right thyroid gland was still present. The ultrasound ultimately showed the right thyroid gland to be present in its entirety, although the mass was no longer attached to it. It also showed that the nodules that existed in the right thyroid before Roger's surgery were still present, and that the amount of right thyroid tissue that was left prevented effective radioablation.1
Dr. Ledger recommended further surgery and referred Roger to Dr. Ashley, a thyroid surgeon in Springfield, Missouri. Dr. Ashley reviewed the post-surgery ultrasounds and determined that Roger needed to have a second surgery to remove the right thyroid that had been left during the first surgery. Because the surgery was much more complicated and risky, he referred Roger to Dr. Moley, a surgeon in St. Louis, Missouri, who recommended a second surgery to remove the right thyroid to remove the cancer risk, and so that he could undergo post-surgical radioablation.
On April 4, 2002, Roger underwent a second surgery during which 8.2 grams of thyroid tissue measuring four centimeters by two and a half centimeters by two centimeters was removed, which was basically the size of the right thyroid lobe. Subsequent testing of the thyroid tissue removed showed it was cancer free.
Following the second surgery, Roger's voice was dramatically different. Roger found that he had no endurance for singing, and that he had a significantly reduced vocal range for singing. He could no longer sing commercially, record music, or work as a full-time music minister.
Plaintiffs filed suit against Dr. Bays, Skaggs, and Defendant in May 2003. Prior to trial, Plaintiffs dismissed their action against Dr. Bays without prejudice and against Skaggs with prejudice. The case went to jury trial on January 23-26, 2006, against Defendant alone. The trial court denied Defendant's motions for directed verdict filed both at the close of Plaintiffs' case, and after Defendant rested without presenting evidence. The case was submitted to the jury and the jury returned a verdict for Roger for personal injuries against Defendant in the amount of $299,644.97. The jury also entered a verdict finding that Carla did sustain damages as a direct result of injury to Roger and awarded her damages in the amount of $10,000. The trial court entered a judgment on the jury verdicts. Defendant's motion for judgment notwithstanding the verdict was denied. This appeal followed.
In two points on appeal, Defendant contends that the trial court erred in denying its motions for directed verdict as well as its motion for judgment notwithstanding the verdict ("JNOV") because Plaintiffs failed to elicit expert testimony describing and defining the meaning of the phrase "standard of care" so that the jury was properly informed of the meaning of the phrase and that the opinions offered by the experts were based on the correct standard. As a result, Defendant contends that Plaintiffs failed to make a submissible case. Since the same analysis will apply to both points, they will be discussed as one.
The standard of review relating to the denial of a motion for JNOV and one for a directed verdict are essentially the same, and we will affirm the trial court's denial of such motions as long as the plaintiff made a submissible case. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 184 (Mo.App. W.D. 2006). In reviewing to determine if a submissible case was made, we view the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable inferences that can be drawn from the evidence, while disregarding all unfavorable evidence and inferences. Id. To make a submissible case, the plaintiff must present substantial evidence establishing each and every element of the claim. Id. The evidence is sufficient to make a submissible case if a reasonable probability that the defendant was negligent may be fairly inferred from it. Delisi v. St. Luke's Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 173 (Mo.App. E.D. 1985). If, however, viewing the evidence in a light most favorable to the plaintiff, the question of negligence may only be determined by resort to conjecture and surmise, then the plaintiff has failed to make a submissible case. Id.
"To make a submissible case in a medical malpractice action, plaintiffs must prove that defendants failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants' profession and that their negligent act or acts caused plaintiffs' injury." Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995). Stated another way, the plaintiff must prove (1) an act or omission of the defendant failed to meet the required standard of care; (2) the defendant was negligent in the performance of the act or omission; and (3) the act or omission caused the plaintiff's injury. Montgomery v. South County Radiologists, Inc., 168 S.W.3d 685, 691 (Mo.App. E.D. 2005). "When considering whether a submissible case has been made all the evidence is to be construed in the light most favorable to the plaintiff." Banther v. Drew, 171 S.W.3d 119, 122 (Mo.App. S.D. 2005). We are to give the plaintiff the benefit of all favorable evidence and reasonable inferences drawn therefrom, to the exclusion of all contrary evidence. Id.
As submitted to the jury, liability of Defendant was premised on whether Dr. Bays "failed to perform a total thyroidectomy" on Roger, it was thereby negligent, and such negligence directly caused or contributed to cause damage to him. Negligence was defined for the jury in an instruction based on MAI 11.06 as "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant's profession." In this case, therefore, the issue for decision relates to the sufficiency of the evidence to show that Dr. Bay's failure to perform a total thyroidectomy, if found by the jury to be true, violated the applicable standard of care. In other words, if Dr. Bays failed to perform a total thyroidectomy, did that failure constitute the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of his profession.
It was Plaintiffs' contention that Dr. Bays left the right...
To continue reading
Request your trial