Ladish v. Gordon
| Decision Date | 17 May 1994 |
| Docket Number | No. WD,WD |
| Parties | Heather LADISH, Appellant, v. Stephen M. GORDON, D.O., Respondent. 46715. |
| Court | Missouri Court of Appeals |
J. Scott Bertram, Law Offices of J. Scott Bertram, Kansas City, for appellant.
J. Michael Shaffer, McDowell, Rice & Smith, Kansas City, for respondent.
Before ULRICH, P.J., and BERREY and SMART, JJ.
This case involves a physician's treatment of the plaintiff's condition of genital warts. A jury awarded plaintiff $75,000.00 for pain and suffering on her claim of negligence. The trial court granted defendant's motion for judgment notwithstanding the verdict. Plaintiff Ladish appeals the trial court's judgment granting defendant's motion for judgment notwithstanding the verdict.
On November 18, 1987, Heather Ladish sought medical treatment from Dr. Stephen Gordon for condyloma, commonly known as genital warts. Plaintiff had earlier seen another physician for this condition, and had been provided a topical cream designed to eradicate the warts. However, plaintiff's warts had spread despite the use of the cream. Plaintiff's sister, who was consulting Dr. Gordon about another matter, informed Dr. Gordon of plaintiff's circumstances. Dr. Gordon recommended that plaintiff see him right away, which she did.
In the examination on November 18, Dr. Gordon explained to plaintiff that the warts, which are usually transmitted by sexual contact, are potentially quite dangerous because they are precancerous. Because plaintiff's cervix was also affected by the warts, Dr. Gordon wanted to perform a biopsy of the cervix before deciding on the precise plan of treatment for the warts. Dr. Gordon indicated he anticipated using laser surgery to remove the warts on the vulva. He explained that recovering from laser surgery can be quite painful. He advised plaintiff that he wanted her to be prepared following the laser surgery to administer suppositories in her vagina, and to apply a cream to the inside and outside of the labial lips. He said that he also wanted her to soak in sitz baths as an aid to her recovery. He also indicated that, several weeks after surgery, he would prescribe the use of a topical substance called Efudex, which contains a chemotherapy agent. Dr. Gordon told her the Efudex also causes a painful burning sensation. Dr. Gordon advised her that treatments to remove warts are not always successful in permanently eradicating the warts, and that for some people the warts chronically recur.
Dr. Gordon instructed Ms. Ladish to have the sitz bath equipment, the suppositories, and the medicated cream on hand at the time of the surgery so she would be prepared for the recuperation process upon her return home following the outpatient surgery. He indicated he would plan to see her two weeks after the laser surgery, and that he anticipated implementing the use of the Efudex cream at that time. Her appointment was set for November 24 to review the results of the biopsy, and to schedule the outpatient laser surgery and any other procedures.
On November 24, Ms. Ladish conferred with Dr. Gordon by telephone, and learned that Dr. Gordon would use the laser surgery for the cervix as well as the vulva. The surgery was scheduled for December 28, 1987. Ms. Ladish was concerned that the surgery was not scheduled sooner, but she did not demand an explanation for the delay.
The surgery was conducted on December 28 as scheduled. The laser surgery was quite extensive because the warts had continued to spread during the intervening period. Following the operation, Ms. Ladish experienced a great deal of pain and discomfort. She also experienced a vast amount of swelling of her genital area. After being contacted by Ms. Ladish's mother on January 2, 1988, who insisted that Dr. Gordon see Ms. Ladish immediately, Dr. Gordon met Ms. Ladish at the emergency room. Ms. Ladish had an extremely bad case of swelling. Dr. Gordon administered a steroid injection to Ms. Ladish in an effort to reduce the swelling of the tissues. Dr. Gordon also observed that there was an adherence of the labial lips which required separation. Using his finger, Dr. Gordon separated the labial lips. According to Ms. Ladish, the pain she experienced at that moment was the worst pain she had ever experienced in her life. The procedure took two or three seconds.
On January 11, 1988, Dr. Gordon again physically examined Heather Ladish. At this time, although Ms. Ladish was still experiencing some pain and swelling in her genital area, the intensity of both had decreased substantially. During this visit, Dr. Gordon prescribed Efudex. Upon applying the Efudex, Ms. Ladish again experienced severe burning and inflammation. Being dissatisfied with Dr. Gordon's treatment, Ms. Ladish sought an evaluation with another physician. In April, 1988, her new physician performed a second laser procedure on Ms. Ladish, apparently because of a recurrence of the warts.
One year later, Ms. Ladish filed her petition for damages against Dr. Gordon for the negligent treatment of her condition. The case was tried in May, 1992. Plaintiff's expert appeared by way of a deposition taken several weeks earlier. Ms. Ladish's petition alleged Dr. Gordon was negligent in (1) failing to perform the procedure before December 28, 1987; (2) failing to advise plaintiff as to the importance of separating the labial lips periodically to keep the lips from adhering to one another; (3) failing to personally evaluate plaintiff's condition until five days after surgical procedure; (4) failing to administer pain medication prior to separating the labia; and (5) prescribing Efudex. No special damages were sought by plaintiff. Plaintiff sought recovery only for increased pain and suffering which she contended resulted from negligent treatment provided by Dr. Gordon. The jury awarded Ms. Ladish $75,000.00 for her pain and suffering.
On August 13, 1992, the trial court entered an order granting Dr. Gordon's motion for judgment notwithstanding the verdict on the grounds that (1) plaintiff failed to offer testimony from a qualified expert with an understanding of the applicable standard of care; (2) there was no competent evidence to support the allegations of negligence contained in the verdict-directing instruction; and (3) there was no competent evidence to support a damage award for pain and suffering. The trial judge further ordered that if the judgment notwithstanding the verdict was reversed on appeal, then Dr. Gordon would be granted a new trial. 1 Heather Ladish appeals from the trial court's judgment.
Plaintiff argues that the trial court erred in granting defendant's motion for judgment notwithstanding the verdict because: (1) plaintiff presented a qualified medical expert and the expert's rendition of the applicable standard of care was proper; (2) plaintiff presented substantial evidence to support each allegation of negligence set forth in the verdict directing instruction; (3) plaintiff presented competent evidence of her pain and suffering to support the jury's verdict; and (4) the court did not abuse its discretion in allowing the jury as much time as was deemed necessary in which to render a verdict.
The first issue to be addressed in this case is whether plaintiff made a submissible case for negligence against Dr. Gordon on any theory. In determining whether plaintiff made a submissible case against defendant, this court views the evidence in the light most favorable to the plaintiff, giving plaintiff the benefit of all favorable evidence and reasonable inferences to be drawn therefrom, and this court disregards all evidence contrary to plaintiff's claim. Delisi v. St. Luke's Episcopal-Presbyterian Hosp., 701 S.W.2d 170, 173 (Mo.App.1985). If we conclude that the trial court was correct in finding a submissible case was not made, plaintiff's points are moot.
To make a prima facie negligence claim, plaintiff must prove the existence of a duty to be performed by defendant, a breach of the existing duty, and a resulting injury caused by defendant's breach of duty. Krause v. United States Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990). Expert testimony generally must be introduced to establish the standard of care in a medical negligence case. Dine v. Williams, 830 S.W.2d 453, 456 (Mo.App.1992). In order to establish her prima facie case, Plaintiff Ladish bears the burden of proving that Dr. Gordon failed to exercise that degree of skill and learning ordinarily exercised by members of his profession under the same or similar circumstances in treating her condition. Cebula v. Benoit, 652 S.W.2d 304, 307 (Mo.App.1983). Additionally, plaintiff must show that defendant's negligent act or acts caused her resulting pain and suffering. Swope v. Printz, 468 S.W.2d 34, 39 (Mo.1971).
Plaintiff's verdict directing instruction for her medical malpractice claim read as follows:
Your verdict must be for plaintiff Heather Ladish, if you believe:
First, defendant Stephen M. Gordon, D.O. either:
Scheduled the laser procedure for December 28, 1987, or
Failed to personally examine Heather Ladish after the procedure of December 28, 1987, until January 2, 1988, or
Failed to advise plaintiff Heather Ladish to separate the labial lips until January 2, 1988, or
Failed to give plaintiff Heather Ladish any pain medication in the Emergency Room before separating her labial lips on January 2, 1988, or
On January 11, 1988, prescribed Efudex to plaintiff Heather Ladish, and
Second, defendant Stephen M. Gordon, D.O., in any one or more of the respects submitted in Paragraph First, was thereby negligent, and
Third, as a direct result of such negligence plaintiff sustained damage.
Missouri courts have held that it is error to give an instruction where there is no...
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