Kivland v. D.C. Orthopaedic Group

• Decision Date: 25 January 2011
• Docket Number: No. SC 90708.,SC 90708.
• Citation: 331 S.W.3d 299
• Parties: Jana KIVLAND and Kristin K. Bold, Appellants,v.COLUMBIA ORTHOPAEDIC GROUP, LLP, and Robert Gaines, M.D., Respondents.
• Court: Missouri Supreme Court

331 S.W.3d 299

Jana KIVLAND and Kristin K. Bold, Appellants,

v.COLUMBIA ORTHOPAEDIC GROUP, LLP, and Robert Gaines, M.D., Respondents.

No. SC 90708.

Supreme Court of Missouri, En Banc.

Jan. 25, 2011.

Thomas K. Neill, Stephen R. Woodley, Joan M. Lockwood, Gray, Ritter & Graham PC, St. Louis, for the Kivlands.Kevin F. O'Malley, Theodore D. Agniel, Marcus C. Wilburs, Greensfelder, Hemker & Gale PC, St. Louis, for Gaines and the Orthopaedic Group.MICHAEL A. WOLFF, Judge.

Introduction

After Dr. Robert Gaines performed surgery on Gerald Kivland's spine in January 2005, Kivland allegedly was paralyzed from the waist down and suffered continuous and extreme pain in the paralyzed region. He sued Dr. Gaines and his employer, Columbia Orthopaedic Group LLP (collectively “Dr. Gaines”) in July 2005 for medical negligence, seeking damages for injury, disability and suffering; his wife, Jana Kivland, sued for damages for loss of consortium. Because the case comes before this Court before there has been a trial, it is important to note that the statements about the surgery and its aftermath are allegations and medical opinions—the facts are yet to be proved.

Eight months after filing the medical negligence suit, Gerald Kivland committed suicide.

After Gerald Kivland's death, the medical negligence action was amended by adding a claim for wrongful death on behalf of his widow and his daughter, Kristin Bold (collectively “the Kivlands”). The lawsuit, as amended after Gerald Kivland's death, in effect has two separate claims:

(1) A claim under the wrongful death statute that Gerald Kivland's death was a direct result of Dr. Gaines' negligence. If this wrongful death claim is viable, Gerald Kivland's claim for damages for his injury, disability and suffering that he possessed at the time of his death are merged into the wrongful death claim as well as his wife's claim for loss of consortium. Kivland's widow and daughter are proper claimants under the wrongful death statute.¹ Section 537.080, RSMo 2000.²

(2) Dr. Gaines' negligence caused Gerald Kivland's injury, disability and pain—but was not a cause of his death. If there is no viable claim that Dr. Gaines' negligence caused Gerald Kivland's death, this “survivor” claim is one that Kivland had at the time of his death that passed to his estate.³ Section 537.020. Recovery on this claim properly is pursued by Jana Kivland, as representative of the estate. Section 537.021. She also would remain a plaintiff for loss of consortium incurred prior to her husband's death.⁴

Dr. Gaines first moved to strike the Kivlands' expert witness, whose opinion was that Gerald Kivland's death was a direct result of the pain from surgery. The circuit court granted the motion to strike the expert witness. The circuit court then granted Dr. Gaines' motion for partial summary judgment on the wrongful death claim. The partial summary judgment was designated as final for purposes of appeal under Rule 74.01(b).

The order granting summary judgment on the wrongful death claim disposes of a distinct claim for relief—the Kivlands' separate claim for wrongful death described in paragraph (1) above—and, on the circuit court's certification, it was final for purposes of appeal. Rule 74.01(b). The “survivor” claim on behalf of Gerald Kivland's estate, described in paragraph (2) above, remains pending in the circuit court.

The question presented in this appeal is whether suicide is an intervening cause of Kivland's death, unrelated to Dr. Gaines' alleged negligence as a matter of law, rendering irrelevant any expert testimony that the death was caused by post-surgical pain.

Facts and Procedural Posture

Dr. Gaines performed surgery on Gerald Kivland to correct a curvature of Kivland's spine in January 2005. Following surgery, Kivland was paralyzed from the waist down and suffered intense and continuous pain in the paralyzed region. Specifically, Kivland's suit alleges that his pain originated in his hips and tightened around his testicular area, that he felt a burning sensation in his legs and that the pain was so acute that it hurt to have a sheet touch his legs.

Kivland was prescribed several medications to combat the pain. When these medications failed to allay the pain, doctors surgically implanted a morphine pump, which also was unsuccessful at alleviating his pain. During this time, Kivland also was prescribed Wellbutrin, an antidepressant, to help him sleep and to treat his arthritis, and was placed on two anti-anxiety medications.

Before his death in March 2006, Kivland purchased a gun and ammunition and wrote farewell letters to his wife and daughter. The morning of his death, he spoke to his wife regarding his meal and medication, and he congratulated his daughter for obtaining a new job. He then wheeled himself out of his condominium, with a blanket covering his lap to hide the gun, and killed himself.

Kivland's personal injury lawsuit subsequently was amended to add the wrongful death claim of his widow and daughter and to name his widow, as representative of his estate, on the lost chance of survival claim. Dr. Gaines' motion for partial summary judgment on these two claims—for wrongful death and lost chance of recovery—asserted that Kivland's suicide was an independent intervening act and that, as a matter of law, Dr. Gaines legally could not be responsible for his death. This first motion for partial summary judgment was overruled.

Dr. Michael Jarvis, the chief medical director of inpatient psychiatry at Barnes–Jewish Hospital in St. Louis, retained as an expert by the Kivlands, then testified in a deposition that Gerald Kivland's suicide resulted from the pain caused by the surgery, that Kivland's suicide was not based on a rational choice and, therefore, that the suicide was not “voluntary.”

After Dr. Jarvis' deposition, the circuit court sustained Dr. Gaines' motion to strike Dr. Jarvis as an expert witness. The court ruled that Dr. Jarvis would be precluded from testifying at trial as to issues relating to the cause of Gerald Kivland's suicide. Dr. Gaines then renewed his motion for partial summary judgment, which the circuit court granted. The court certified the judgment for appeal. Following an opinion in the court of appeals on the Kivlands' appeal, this Court granted transfer.

Dr. Gaines filed a motion with this Court, arguing the Court does not have appellate jurisdiction because the dismissal of the Kivlands' claims for lost chance of survival and wrongful death on partial summary judgment does not dispose of separate claims under Rule 74.01(b).⁵ These claims relate only to the separate claim for wrongful death, however, which alleges that the negligence of Dr. Gaines caused Gerald Kivland's death. The circuit court's order, therefore, disposed of separate, distinct claims. This Court has jurisdiction to review the circuit court's order granting partial summary judgment to Dr. Gaines. Mo. Const. art. V, sec. 10.

Standard of Review

This Court's review of a grant of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The Court reviews the whole record in the light most favorable to the non-moving party. Id. See also Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo.App.1999) (“As an appellate court, we are confined to considering the same information that the trial court considered in rendering its decision on the motion for summary judgment.”). The non-moving party is to be given the benefit of all reasonable inferences. ITT Commercial Finance Corp., 854 S.W.2d at 376. “[A]ny evidence in the record that presents a genuine dispute as to the material facts defeats the movant's prima facie showing.” Id. at 382. Summary judgment is, therefore, only proper when the moving party has demonstrated that there is no genuine issue of material fact such that judgment is proper as a matter of law. Wallingsford v. City of Maplewood, 287 S.W.3d 682, 685 (Mo. banc 2009).

Lost Chance of Survival

The Kivlands' claim for lost chance of survival could be resolved on a motion to dismiss for failure to state a claim by not considering the evidentiary material a court examines in converting a motion to dismiss to a motion for summary judgment. Rule 55.27(a).⁶ The Kivlands' claim for lost chance of survival alleges nearly the same facts as their wrongful death claim. There are only two minor differences between the allegations. The lost chance of survival claim is filed on behalf of Jana Kivland, as plaintiff ad litem and personal representative of the estate of Gerald Kivland, whereas the wrongful death claim is on behalf of Jana Kivland and Kristin Bold, as claimants under the wrongful death statute, section 537.080. The lost chance of survival claim contains one additional allegation that is not contained within the wrongful death claim—that “[a]s a direct and proximate result of the negligence and carelessness of defendants ... Gerald Kivland lost a substantial chance of recovery, and as such, plaintiff Jana Kivland is entitled to damages for said loss under [section] 537.021.”

The purpose of a lost chance of recovery or survival claim is to address the harm that a patient suffers “when the doctor fails to diagnose or adequately treat a serious injury or disease.” Wollen, 828 S.W.2d at 686. In Wollen, the decedent went to the defendant doctors for medical treatment. The doctors failed to diagnose him with anything, and he subsequently died. If the doctors had performed appropriate tests or had interpreted correctly the tests they did conduct, they would have diagnosed the decedent with gastric cancer. If he had received this diagnosis and had been given appropriate treatment, he would have had a 30 percent chance of survival. Id. at 681–82. In Wollen, the Court recognized a lost chance of survival or recovery claim. The Court said that the claim should be used when “it is...