Hiers v. Lemley, 74386

• Decision Date: 02 June 1992
• Docket Number: No. 74386,74386
• Citation: 834 S.W.2d 729
• Parties: Lorraine HIERS, Personal Representative of the Estate of Gene Hiers, Deceased, and Lorraine Hiers, Plaintiffs/Respondents, v. J. Stephen LEMLEY, M.D. and J. Stephen Lemley, M.D., Inc., Defendants/Appellants.
• Court: Missouri Supreme Court

Page 729

834 S.W.2d 729

Lorraine HIERS, Personal Representative of the Estate of Gene Hiers, Deceased, and Lorraine Hiers Plaintiffs/Respondents, v. J. Stephen LEMLEY, M.D. and J. Stephen Lemley, M.D., Inc. Defendants/Appellants.

No. 74386.

Supreme Court of Missouri En Banc.

June 2, 1992.

Morris E. Stokes, Kevin F. O'Malley, Mary L. Reitz, Clayton, for defendants, appellants.

Dowd & Dowd, P.C., Douglas P. Dowd, St. Louis, for plaintiffs, respondents.

HOLSTEIN, Judge.

This case involves the use or, more aptly, misuse of an "Affirmative Converse Instruction" described in MAI 33.01 and 33.05. ¹ Defendant J. Stephen Lemley submitted what purports to be an affirmative converse in response to the verdict directing instruction in a medical malpractice case. Following a verdict for defendant, the trial court sustained plaintiff Lorraine Hiers' motion for new trial, citing as its reason that the converse instruction was in error. This appeal by defendants followed. We affirm.

FACTS

On March 6, 1984, Gene Hiers was admitted to St. Joseph's Hospital for tests to determine the cause of respiratory problems. Biopsies were performed. On March 9th Dr. William H. Sheffield, a pathologist and director of the hospital's pathology laboratory, issued a report concluding that Hiers had (1) interstitial pneumonitis and (2) bronchoalveolar carcinoma, more commonly referred to as lung cancer. Another pathologist, Dr. William Boyce, also examined the biopsy slides with Dr. Sheffield. Dr. Boyce was uncertain of the diagnosis. As a result, a sample was sent to an expert in pulmonary pathology in North Carolina.

Dr. Lemley, an oncologist, also viewed the biopsy slides. He then informed Hiers that he had cancer and had only three weeks to live. Lemley recommended chemotherapy. Lemley's recommendation was based on the pathology reports and his own examination of the tissue. Lemley was aware that a request had been made for an outside opinion. On Lemley's recommendation, Hiers consented to and received one chemotherapy treatment on March 19, 1984. The treatment was followed by extreme nausea, debilitation, loss of weight, loss of hair, and abnormal blood counts. On March 23rd the North Carolina pathologist issued his report that the tissue indicated only interstitial pneumonitis. His findings were "against a diagnosis of ... carcinoma." On April 1st Dr. Lemley entered the Hiers' hospital room. According to Mrs. Hiers, Dr. Lemley was very excited and reported, "We just received a report back stating your husband does not have cancer." Approximately two years later Hiers died of interstitial pneumonitis.

Lorraine Hiers brought a survivor's action for medical malpractice against Dr Lemley submitting negligence in three respects:

(1) misdiagnosing Hiers as having cancer,

(2) treating Hiers with chemotherapy even though he knew the cancer diagnosis was in doubt, and

(3) failing to promptly inform Hiers upon learning the diagnosis was in error.

A defendant's verdict was returned by the jury. However, the trial court granted plaintiff's motion for new trial. Dr. Lemley appeals from the order granting a new trial.

I.

The first point on appeal claims the trial court's order granting a new trial was insufficient to meet the specificity requirements of Rules 78.03 and 84.05(b). Rule 78.03 provides, "Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted." Rule 84.05(b) states in part, "When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent."

The order sustaining the motion for new trial stated, "Plaintiffs' Motion for a New Trial is sustained because of error in giving Instructions 9 and 13 for the reasons stated in paragraph 6 of Plaintiffs' Motion for New Trial." Paragraph 6 of the motion for new trial states:

6. The trial court erred, and prejudicially so, in submitting Defendants' Instruction Numbers 9 and 13 in that said Instructions were roving commissions for the jury to find that in the event Doctor Lemley had any reason for his conduct he should be exonerated from liability, and in that there was no standard presented as to whether or not Doctor Lemley's "reasonable belief" or "reasonably relied" was not negligent and said Instructions were comments on the evidence. These instructions were not proper converses. Said instructions are attached as Exhibits A and B.

Said instructions also failed to furnish any citation for the second paragraph of said instructions, and there is no authority for such an instruction. The trial court erred in failing to direct defense counsel to furnish authority for said instructions in that Plaintiffs are at a legal disadvantage in preparing their objections to said instructions.

These instructions have no basis in law, and Plaintiffs are clearly entitled to a new trial because of their erroneous nature.

The purpose of requiring specificity in motions for new trial is to define the reason for granting the new trial and thus limit the issues cognizable on appeal, thus promoting judicial economy. Dixon v. Bi-State Dev. Agency, 636 S.W.2d 696, 698 (Mo.App.1982); Hightower v. Hightower, 590 S.W.2d 99, 103 (Mo.App.1979). An order granting a new trial due to an error in giving one or more instructions, without explaining why the instructions were erroneous, has been held insufficiently specific under our rules and their statutory predecessors. Chappell v. City of Springfield, 423 S.W.2d 810, 811 (Mo.1968); Davis v. Kansas City Public Service Co., 361 Mo. 168, 233 S.W.2d 669, 678 (banc 1950); Southern Missouri Bank v. Fogle, 738 S.W.2d 153, 156 (Mo.App.1987). However, where the order granting a new trial finds that an instruction was erroneous for specific reasons set out in identified paragraphs of a motion for new trial, the failure to recite the contents of the paragraph does not violate the specificity requirement of our rules. Caldwell v. St. Louis Public Service Co., 275 S.W.2d 288, 290 (Mo.1955); Osborne v. Warehouse Mail Order, 622 S.W.2d 34, 35 (Mo.App.1981). The argument that the trial court's order granting a new trial lacks specificity because it adopts its reasons by referencing a paragraph of the motion for new trial is without merit.

The content of the motion for new trial is quoted above in its entirety. It contains enough specific detail to put the defendant on notice that the trial court found the converse instruction was improper because it 1) amounted to a comment on the evidence, 2) gave the jury excessive latitude in returning its verdict, and 3) failed to establish a proper standard of care by which the jury could assess the reasonableness of Dr. Lemley's conduct. In addition, the recital that the converse instruction "failed to furnish any citation for the second paragraph ... and there is no authority for such an instruction" is an inartful way of saying that the converse instruction that was submitted was not consistent with the approved converse instruction forms and the notes on use for converse instructions. Rule 70.02. Taken as a whole, paragraph 6 was sufficiently specific to assert a legal basis for granting a new trial and to define and limit the issues to be addressed on appeal.

Defendant relies on Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535 (1950), as support for its claim that the trial court's order was overly broad and therefore insufficient to meet the specificity requirements of Rules 78.03 and 84.05(b). In Goodman the trial court's order granting a new trial merely referenced a paragraph of the motion for new trial stating "[t]hat the court erred in admitting, over the objection and exception of plaintiff, incompetent, irrelevant, immaterial, improper, prejudicial and illegal evidence offered by the defendant." 232 S.W.2d at 537. Thus, Goodman is distinguishable because the trial court failed to identify the evidence to which it referred.

II.

Appellant's second claim is that plaintiff did not make a submissible case of negligent medical treatment. If no submissible case was made, any error in giving the converse instruction was inconsequential and the trial court should have sustained the defendant's motion for directed verdict.

To determine if a submissible case was made by plaintiff, this Court "must view the evidence and inferences therefrom in a light most favorable to the plaintiffs and disregard all contrary evidence." Community Title Co. v. Roosevelt Federal Savings & Loan Ass'n, 796 S.W.2d 369, 371 (Mo. banc 1990). For plaintiffs to make a submissible case of medical malpractice, they must establish (1) an act or omission of the defendant failed to meet the requisite medical standard of care; (2) the act or omission was performed negligently; and (3) there was a causal connection between the act or omission and the plaintiff's injury. Jines v. Young, 732 S.W.2d 938, 944 (Mo.App.1987).

A.

The first theory of negligence was that Dr. Lemley made a misdiagnosis that Gene Hiers had lung cancer. Defendant argues here that he made no diagnosis or misdiagnosis of lung cancer. The hospital record includes the following entry dictated by Dr. Lemley:

Patient eventually underwent a right minithoracotomy at which time some confusion was initially encountered as to the etiology of his problem, being either desquamative interstitial pneumonitis vs. bronchoalveolar carcinoma; however, on review of pathology slide preparations, this definitely appears to be bronchoalveolar cell carcinoma.

....

Impression:

1. On the basis of my interpretation of the pathology slide, I definitely feel this is bronchoalveolar cell type of lung carcinoma. Unfortunately, disease at this point is rather far advanced and the patient has a very poor prognosis.

At trial, Dr. Lynch, a...