Kinser v. Elkadi

• Court: Missouri Court of Appeals
• Writing for the Court: CROW; GREENE, C.J., FLANIGAN, P.J., and TITUS
• Citation: Kinser v. Elkadi, 674 S.W.2d 226 (Mo. App. 1984)
• Decision Date: 28 June 1984
• Docket Number: No. 12021,12021
• Parties: Billie KINSER and Clifford (Jay) Kinser, Respondents, v. Ahmed ELKADI, Appellant.

Page 226

674 S.W.2d 226

Billie KINSER and Clifford (Jay) Kinser, Respondents, v. Ahmed ELKADI, Appellant.

No. 12021.

Missouri Court of Appeals,

Southern District,

Division One.

June 28, 1984.

Motion for Rehearing or Transfer Denied

July 18, 1984.

Application to Transfer Denied

Sept. 11, 1984.

B.H. Clampett, Patrick K. Roberts, Daniel, Clampett, Rittershouse, Dalton & Powell, Springfield, for appellant.

Thomas Strong, Mathew W. Placzek, John Wooddell, Strong & Placzek, P.C., Springfield, for respondents.

CROW, Judge.

Appellant ("Elkadi"), a thoracic and cardiovascular surgeon, appeals from a judgment, per jury trial, awarding Billie Kinser ("Billie") $900,000, and her husband, Clifford ("Jay"), $25,000. The Kinsers' claims were submitted to the jury on the theory that Elkadi was negligent in that he (1) performed an unnecessary "bilateral aorta-femoral bypass" surgical procedure on Billie on September 26, 1973, or (2) failed to secure an informed consent from Billie before performing the surgery. The Kinsers did not contend that the surgery itself was performed in a negligent manner.

This is the second time this appeal has been before this court. The first time, it was ordered dismissed as moot. Thereafter, on Elkadi's application, the Supreme Court of Missouri ordered the cause transferred there, Mo. Const. art. V, § 10, and, in Kinser v. Elkadi, 654 S.W.2d 901 (Mo. banc 1983), returned the cause to us for consideration of the appeal on the merits.

Elkadi assigns error in the denial of his motion for a directed verdict on each claim at the close of all the evidence, and the denial of his subsequent motion for judgment in accordance with his motion for directed verdicts. He also attacks certain jury instructions, the reception of certain evidence over his objection, and some comments by one of the attorneys for the Kinsers in opening statement and closing argument. Additionally, Elkadi contends a mistrial should have been declared when one of the attorneys for the Kinsers telephoned Mrs. H________, who was, at the outset of the trial, a member of the jury. Mrs. H________ was excused as a juror on the fifth day of trial because of her husband's illness, and the call was made two days thereafter, while the trial was still in progress.

Regarding the sufficiency of the evidence, Elkadi characterizes the trial as "nothing more than a conflict of judgment" between the medical specialists who testified for him and those who testified for the Kinsers. Arguing that his experts maintained the surgery was appropriate, and that the disclosure he made to Billie was adequate, Elkadi, citing Haase v. Garfinkel, 418 S.W.2d 108, 114 (Mo.1967), insists he was entitled to a wide range in the exercise of his judgment and discretion, and could not be found guilty of negligence unless it were shown that the course he pursued was clearly against the course recognized as correct by the medical profession generally. He asserts that as long as there is room for an honest difference of opinion among competent physicians, a physician who uses his own best judgment cannot be convicted of negligence, even though it may afterward develop that he was mistaken. Id. at 114.

The Kinsers respond that the evidence made a jury issue on both submissions of negligence, as there was testimony from their experts that Elkadi, in performing the surgery when it was unnecessary, and in giving Billie the explanation about it beforehand, failed to use the degree of skill and learning ordinarily used under the same or similar circumstances by members of his profession.

The trial consumed 14 days; the transcript exceeds 2,500 pages. Nine medical doctors (including Elkadi) testified, and there were nine other witnesses (including the Kinsers). Inasmuch as we, in gauging the sufficiency of the evidence, view it in the light most favorable to the verdicts, giving the Kinsers the benefit of all reasonable inferences therefrom, Haswell v. Liberty Mutual Insurance Co., 557 S.W.2d 628, 633 (Mo. banc 1977), we need not summarize all the testimony, but only that which supports the result below.

Billie was 35 years old when she first saw Elkadi on September 20, 1973. Billie, according to her testimony, told Elkadi she occasionally had a "burning ache" behind her left knee when she exercised. She considered it a "minor nuisance." She added that she sometimes had a similar ache behind her right knee, but it was "almost nonexistent." Billie's testimony regarding her symptoms conflicted with Elkadi's office records of what she told him, the records reflecting more serious symptoms. Which version was true was a jury issue, and we need not detail the discrepancies.

Elkadi, acting on his version of Billie's history, together with his examination of her, suspected she was afflicted with aortoiliac occlusive disease and right carotid occlusive disease. On September 25, 1973, at Elkadi's direction, Dr. Thomas P. Sweeney, a radiologist, performed a carotid arteriogram and an abdominal aortogram with run-off studies on Billie. Elkadi, after reviewing Sweeney's report and studying the films, diagnosed that Billie had aortoiliac occlusive disease, characterized at trial as arteriosclerosis or atherosclerosis.

The arteriography had required Billie to be hospitalized, and on the evening of September 25, 1973, Elkadi visited Billie in her hospital room, explaining his diagnosis and describing how her symptoms could be relieved by surgery. There were conflicts in the testimony of Elkadi and Billie regarding what Elkadi said during the visit, but we need not recount each difference. It was the province of the jury to decide whose testimony to believe. At the end of the visit, Billie signed a consent for the surgery, and Elkadi performed it the next day.

Elkadi described the surgery as "a bypass procedure connecting the aorta to the femoral arteries using a bypass graft," made of Dacron. The procedure was designed to route the flow of blood around the area Elkadi said was significantly diseased, the lower part of the aorta and its main branches. The operation was performed without complications, and Billie was discharged from the hospital on October 5, 1973.

In November, 1976, Billie had a sudden onset of symptoms, and it was discovered that the wall of the femoral artery and the graft, where they had been sewn together, had disrupted, allowing blood to leak and causing a clot to block off the graft and the artery to which the graft was hooked. Dr. Thomas E. Ashley performed repair surgery, removing the clot and repairing the disruption between the graft and the artery, installing a new suture line.

In September, 1977, Billie experienced pain in her left leg and numbness of her left foot, leading to the discovery that the same side of the graft was blocked again. Ashley once more undertook repair surgery, but this time the condition of the arteries was such that he believed he should not "try to again hook this graft in, which on two occasions in less than a year had formed a false aneurysm." Ashley took a segment of the saphenous vein from Billie's left thigh and made a new blood vessel similar to the graft, hooked it to Billie's superficial femoral artery and bypassed the clotted area.

Dr. Phillip Carr, "board certified" in internal medicine and cardiovascular disease, had examined Billie the day before her 1976 surgery. While Billie was hospitalized for her 1977 surgery, Jay asked Carr whether the 1973 surgery should have been done. Carr, who had "reviewed all of the situation," responded, "No, I don't believe the operation should have been done, Mr. Kinser." This suit was filed a few months later.

The test for negligence in this case is whether Elkadi, in the respects complained of by the Kinsers, failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of his profession. Gridley v. Johnson, 476 S.W.2d 475, 481-83 (Mo.1972); MAI 11.06 [1978 Revision]. Because both submissions of negligence involve issues of medical expertise beyond the common knowledge or experience of laymen, the Kinsers were obliged to present expert medical testimony that Elkadi, as to each submission, failed to meet the required standard. Haase, 418 S.W.2d at 112-14; Aiken v. Clary, 396 S.W.2d 668, 673-75 (Mo.1965). Presentation of such testimony makes a submissible case, and once such testimony is presented, the ultimate determination whether Elkadi, in either or both respects submitted, was negligent, becomes a jury question. Aiken, 396 S.W.2d at 675. If such testimony be lacking regarding either assignment of negligence, the verdicts cannot stand. Cook v. Cox, 478 S.W.2d 678, 680 (Mo.1972); Miller v. Scholl, 594 S.W.2d 324, 328 (Mo.App.1980).

The dispute between the Kinsers' medical experts and Elkadi and his experts centered around whether, and to what extent, Billie was afflicted with arteriosclerosis in 1973, and whether the surgery Elkadi performed was necessary or appropriate at that time. Because we need decide only whether the Kinsers fulfilled their obligation of presenting expert testimony that Elkadi, as to both grounds submitted, was negligent, it is unnecessary to recount the opinions of all nine physicians.

The Kinsers rely primarily on the testimony of Dr. Carr to sustain their position. His testimony fills 227 pages of the transcript, and is punctuated by objections, interruptions, rephrased questions, narrative answers, clarifications, arguments of counsel, bench conferences, and other flotsam of a hard fought trial.

Without undertaking to quote or paraphrase everything Carr said pertinent to the submissions of negligence, we hold that his testimony, cast in the light most favorable to the Kinsers and giving them the benefit of all reasonable inferences, Haswell, 557 S.W.2d at 633, expresses the opinion that Elkadi, in performing the 1973 surgery, and in telling Billie about her condition and why the...