Kummer v. Cruz

• Decision Date: 22 March 1988
• Docket Number: No. 52593,52593
• Parties: Carol L. KUMMER, et al., Plaintiffs-Appellants, v. Eligio C. CRUZ, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 801

752 S.W.2d 801

Carol L. KUMMER, et al., Plaintiffs-Appellants, v. Eligio C. CRUZ, et al., Defendants-Respondents.

No. 52593.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 22, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 1, 1988.

Application to Transfer Denied July 26, 1988.

Dowd & Dowd, P.C., Edward L. Dowd, Jr., St. Louis, for plaintiffs-appellants.

Kortenhof & Ely, Ben Ely, Jr., St. Louis, for defendants-respondents.

SIMON, Presiding Judge.

This appeal arises out of a medical malpractice action instituted by plaintiffs, Carol L. Kummer, and her husband, Robert Kummer, against defendants, Dr. Eligio C. Cruz and Associated Obstetrics and Gynecology, Inc. The gravamen of plaintiffs' first amended petition averred that Carol Kummer sustained injuries and damages as a result of a midline episiotomy performed during childbirth by defendant, Dr. Eligio C. Cruz, during which Dr. Cruz negligently cut the anal sphincter muscles of Carol Kummer and, thereafter, negligently failed to recognize the damage done by the episiotomy and birth and to suture the sphincter muscles properly. The defendants joined issue as to the cause of Mrs. Kummer's injury on two alternate theories. Defendants' first theory is that Mrs. Kummer's episiotomy had become infected, that the injury to the sphincter muscle was due to the infection, that infection is simply a normal risk in this type of operation, and that Dr. Cruz did not cause any injury. Defendants' second theory was that the sphincter muscle was cut during subsequent surgery performed by Dr. Francis Burns.

The jury in the Circuit Court of the County of St. Louis returned its verdict in favor of defendants and judgment was entered thereon. On appeal, plaintiffs assert that the trial court erred: (1) in sustaining defendants' objections to plaintiffs' questions to their witness, Dr. Francis Burns, the subsequent treating physician, as to the cause of Mrs. Kummer's injury; and (2) in refusing to permit plaintiffs to cross-examine Dr. Burns, regarding his previous statements and records that directly contradicted his testimony at trial. We reverse and remand.

On March 24, 1981, Carol Kummer gave birth to her second child while under the care of defendants, Dr. Eligio C. Cruz and Associated Obstetrics and Gynecology, Inc. During the delivery, Dr. Cruz performed a midline episiotomy. A midline episiotomy is a surgical incision of the vulva running from the opening of the vagina towards the anus. The purpose of an episiotomy is to prevent an uncontrolled laceration or tearing of the opening of the vagina during the delivery of the child.

Mrs. Kummer was discharged from the hospital on March 28, 1981. Approximately six weeks later, on May 9, 1981, Mrs. Kummer went to see Dr. Cruz for a standard post delivery checkup. Dr. Cruz testified that Mrs. Kummer made no complaints at that time.

Mrs. Kummer testified that after she went home from the hospital, she continued to bleed and had some swelling and discomfort. She testified that she told Dr. Cruz about the bleeding during the May 9, 1981 checkup and that Dr. Cruz told her that she was still healing and not to worry about it.

In June of 1981, Mrs. Kummer's condition grew worse. She began noticing a foul smelling discharge, accompanied by burning and itching, in the vaginal area. Mrs. Kummer returned to see Dr. Cruz on August 15, 1981. At this time she informed Dr. Cruz that she had been passing stool in the vaginal area since mid-July 1981. Dr. Cruz diagnosed a rectal-perineum fistula (an abnormal passage through the tissues between the rectum and the perineum through which feces matter was being passed). Dr. Cruz recommended surgery to correct the problem, and referred Mrs. Kummer to Dr. LaBlanc, a proctologist. Whether Mrs. Kummer ever saw Dr. LaBlanc does not appear in the record.

On August 24, 1981, five months after the delivery of her second child, and nine days after her last visit to Dr. Cruz, Mrs. Kummer went to see Dr. Francis Burns, upon referral by Dr. Al Denk. Dr. Burns testified that he was a friend of Dr. Cruz and Dr. Cruz testified that he played golf regularly with Dr. Burns.

Dr. Burns testified that he examined the records of Mrs. Kummer's medical history, spoke with Mrs. Kummer about her problem, and performed a physical examination on Mrs. Kummer. Dr. Burns testified, without objection, that Mrs. Kummer complained of difficulty in controlling bowel movements and of an extraordinary amount of flatulence, when she saw him on August 24, 1981. She complained that the condition had existed approximately five months, referring to the birth of her second child and the episiotomy. Dr. Burns testified that he made a visual examination of the area and also performed an anoscopic examination. Using a probe, Dr. Burns determined that Mrs. Kummer had a rectal-vaginal fistula (an abnormal passage through the tissues between the rectum and vagina) and that "there was an obvious separation of the sphincter muscle."

Dr. Burns performed two surgeries on Mrs. Kummer in an attempt to correct her condition. He performed a fistulotomy on September 30, 1981, to repair the fistula, and he performed an anoplasty on October 19, 1981, removing scar tissue from the sphincter muscle which had been divided and bringing the tissues together with heavy suture material. As a part of the operation, Dr. Burns disected tissue on a major portion of the vagina and built up the perineal body. Dr. Burns testified that Mrs. Kummer's sphincter muscle was lacerated before he saw her and that she had suffered a third degree laceration of that muscle. During direct examination, plaintiffs' counsel attempted to elicit testimony from Dr. Burns that the laceration of Mrs. Kummer's sphincter muscle was caused by the episiotomy. All of defendants' objections to such testimony were sustained. Plaintiffs made no formal offer of proof. Plaintiffs then framed a hypothetical question as to the cause of the lacerated sphincter muscle. Defendants objected on foundational grounds and no answer was given. However, the trial court did not rule on the objection. On cross-examination, Dr. Burns testified that the laceration of the sphincter muscle could have resulted from infection. Based on this testimony plaintiffs' counsel sought leave to reexamine and then to cross-examine Dr. Burns in an attempt to impeach him with his previous statements and records indicating that the sphincter muscle was lacerated at birth. Leave was denied by the trial court. Again, plaintiffs failed to make an offer of proof.

Mrs. Kummer had another child in January, 1985, which was delivered by caeserian section by Dr. Herman Taute. Dr. Taute had initially seen Mrs. Kummer on July 16, 1982, at which time she did not complain to him of incontinence. He next saw her on June 27, 1984, at which time she was pregnant, and he continued to follow her through the pregnancy. Mrs. Kummer never complained of incontinence of her bowels to Dr. Taute during any of her prenatal visits.

Plaintiffs' expert witness, Dr. Marvin Krane, a board certified obstetrician/gynecologist from Philadelphia, Pennsylvania, testified, based on his review of the medical records in the case, that Mrs. Kummer had suffered a recto-vaginal fistula. Dr. Krane also testified that in his opinion Mrs. Kummer's sphincter muscle was lacerated at the time of the delivery of her second child by the mid-line episiotomy performed by Dr. Cruz and that he caused the fistula. Dr. Krane testified that Dr. Cruz's failure to identify and repair the laceration led to Mrs. Kummer's problems with the sphincter muscle. He testified that Mrs. Kummer will always have pain during sexual intercourse because of scar tissue and that Dr. Cruz's failure to identify and repair Mrs. Kummer's lacerated sphincter muscle caused the scarring. Dr. Krane testified on cross-examination that he had been employed by counsel for plaintiffs to examine the case, that he was being paid to testify, that he had testified for plaintiffs' counsel in another case, and that he had reviewed and testified in many malpractice cases.

Dr. Cruz testified that neither the episiotomy nor the delivery caused the laceration of the sphincter muscle and that after the birth, Mrs. Kummer did not have a laceration of the sphincter. Dr. Cruz testified that infection was the cause of the fistula.

Defendants' expert witness, Dr. Lee Rigg, testified, based on his review of the medical records in the case, that the episiotomy and delivery of March, 1981, were unrelated to the development of Mrs. Kummer's fistula. Dr. Rigg testified further that in his opinion Mrs. Kummer's sphincter muscle was intact before the fistulotomy performed by Dr. Burns and that the sphincter muscle was in fact cut during that surgery performed by Dr. Burns.

In their first point, plaintiffs assert that the trial court erred in sustaining defendants' objections to questions put by plaintiffs to Dr. Burns concerning the cause of Mrs. Kummer's lacerated sphincter muscle. Plaintiffs allege error in two regards. First, plaintiffs claim that Dr. Burns was a "treating physician," and as such, should have been permitted to testify as to the cause of the lacerated sphincter muscle based upon facts within his knowledge and observation. Second, plaintiffs argue that even if Dr. Burns cannot be classified as a treating physician, Dr. Burns should have been permitted to answer a hypothetical question, containing necessary facts and plaintiffs' theory of the case, as to the cause of Mrs. Kummer's lacerated sphincter muscle.

Plaintiffs' allegations of error involve the following exchange at trial:

Q (By Plaintiffs' counsel): Doctor [Burns], you previously testified [Mrs. Kummer] suffered a third degree laceration at birth?

A Yes.

Q Of the sphincter muscle?

A Yes.

Q Now that laceration of the sphincter muscle, could you tell whether this caused, whether or not...