Larose v. Washington University

• Decision Date: 09 November 2004
• Docket Number: No. ED 84271.,ED 84271.
• Citation: 154 S.W.3d 365
• Parties: Richard LaROSE, as the Personal Representative of the Estate of Gail LaRose, and Richard LaRose, Individually, Respondents, v. WASHINGTON UNIVERSITY, Appellant.
• Court: Missouri Court of Appeals

154 S.W.3d 365

Richard LaROSE, as the Personal Representative of the Estate of Gail LaRose, and Richard LaRose, Individually, Respondents, v. WASHINGTON UNIVERSITY, Appellant.

No. ED 84271.

Missouri Court of Appeals, Eastern District, Division Three.

November 9, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 5, 2005.

Application for Transfer Denied March 1, 2005.

Robert T. Haar, St. Louis, MO, for appellant.

Jeffrey S. Maguire, David M. Zevan, Cape Girardeau, MO, for respondent.

CLIFFORD H. AHRENS, Judge.

Washington University ("defendant") appeals the judgment on a jury verdict in favor of Gail LaRose and Richard LaRose (collectively referred to herein as "plaintiffs"). Defendant claims that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiffs failed to make a submissible case. Additionally, defendant claims that the trial court erred in denying its motion to amend the judgment, or in the alternative for remittitur or new trial because the judgment was excessive. Finally, defendant argues that the trial court erred in denying its motion for new trial because undue prejudice resulted from the court's decision to allow Richard LaRose to testify twice during the trial, including once near the end of defendant's case. Finding no error, we affirm¹

Mohammad Moaddabi, M.D. was Gail LaRose's primary care physician. Dr. Moaddabi referred Gail to Benjamin Schwartz, M.D., one of Washington University's physicians, for the evaluation of a potential rheumatological condition in June 2000. Dr. Moaddabi provided Dr. Schwartz with certain radiological reports for his evaluation of Gail, including a bone scan report which recommended a bilateral renal ultrasound. Dr. Schwartz examined Gail, and treated her rheumatological condition, but did not order the ultrasound as recommended by the bone scan report. In February 2001, Gail was ultimately diagnosed with ovarian cancer. Plaintiffs subsequently filed a petition alleging medical malpractice against Dr. Moaddabi, Dr. Schwartz and Washington University² for failure to timely diagnose her ovarian cancer and alleging loss of consortium on behalf of Richard LaRose. After trial, a jury returned a verdict in favor of plaintiffs and against defendant on each of their claims. Specifically, the jury assessed fifty percent fault to Washington University and fifty percent to Dr. Moaddabi. The jury awarded Gail LaRose $70,000.00 in past economic damages, $430,000.00 in past noneconomic damages, $400,000.00 for future economic damages, and $2,000,000.00 for future noneconomic damages. The jury determined that Gail lost a fifty-seven percent chance of recovery. On Richard LaRose's claim for loss of consortium, the jury found that he did sustain damage as a result of the injury to his wife Gail, and awarded him $50,000.00 in past noneconomic damages and $200,000.00 in future noneconomic damages. The court entered its judgment on the jury's verdict, reducing the amount of damages awarded to plaintiffs. The court found that the jury's award of past economic damages for Gail's claim exceeded the evidence, and reduced it accordingly. The court also reduced the damages awarded to both plaintiffs by multiplying the amount by the percentage of chance lost, as found by the jury. This amount was then reduced by the amount of fault assessed to Dr. Moaddabi, as a result of his settlement with plaintiffs. The amount of noneconomic damages was further reduced by the maximum limit set forth in section 538.210 RSMo (Cum.Supp.2003), which at the time of judgment was $557,000.00. The court noted that it made no such reduction to the damages awarded to Richard because the amount was already less than this maximum limit. Thus, after the reductions made by the trial court, Gail LaRose was awarded a total of $690,908.56 in damages³, and Richard LaRose was awarded $71,250.00⁴. The trial court subsequently denied defendant's motions for judgment notwithstanding the verdict, for remittitur, new trial or to amend the judgment. Defendant now appeals.

In its first point on appeal, defendant claims that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiffs failed to make a submissible case.

"The standard of review based on a trial court's denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case." Echard v. Barnes-Jewish Hosp., 98 S.W.3d 558, 565 (Mo.App.2002). To make a submissible case, a plaintiff must present substantial evidence to support every fact essential to liability. Id. In determining whether a plaintiff has made a submissible case, we view the evidence and all reasonable inferences therefrom in the light most favorable to plaintiff. Id. We will reverse the verdict of the jury only where there is a "complete absence of probative fact" to support the jury's conclusion. Id.

In the present case, defendant specifically challenges the sufficiency of plaintiffs' evidence concerning defendant's breach of the standard of care. Defendant argues that plaintiffs were required to establish, through substantial evidence, that Dr. Schwartz breached the standard of care exercised by other members of his profession under the same or similar circumstances. Defendant claims that the testimony of Gary Salzman, M.D., plaintiffs' expert witness, was based upon inappropriate foundation and was not supported by proper authority. Additionally, defendant points out what it claims to be a "fatal inconsistency" in Dr. Salzman's testimony. According to defendant, Dr. Salzman could not opine that Dr. Schwartz met the standard of care for his treatment of Gail LaRose's potential rheumatological condition, and still testify that Dr. Schwartz failed to meet the standard of care with respect to the diagnosis of her ovarian cancer.

In the present case, Dr. Salzman, an expert in the areas of internal medicine, pulmonary disease and critical care medicine, testified that after a finding of potential blockage of one of Gail's ureters on a bone scan, Dr. Schwartz deviated from the standard of care in failing to either order an ultrasound for further evaluation, or recommend that one be ordered. Dr. Salzman stated that an internal medicine physician evaluating a patient would be required by the standard of care to investigate the finding on the bone scan by ordering an ultrasound.

Dr. Salzman testified, based upon his clinical experience as an internal medicine physician, as to what other physicians, exercising the same degree of skill and learning would ordinarily use under the same or similar circumstances. Any argument by defendant regarding inconsistencies in Dr. Salzman's opinions, or lack of authority speaks to the weight and credibility of Dr. Salzman's testimony, which is a question for the jury. Davolt v. Highland, 119 S.W.3d 118, 127 (Mo.App.2003).

Additionally, defendant argues that in order to make a submissible case, plaintiffs were required to present substantial evidence that an ultrasound would have detected Gail's ovarian cancer in June of 2000, and that Gail's prospects would have been materially better if the diagnosis had been made at that time. Again, defendant argues that because of inappropriate foundation and inconsistencies in the testimony of plaintiffs' experts, plaintiffs failed to present substantial evidence to support their claim.

Both of plaintiffs' experts testified that the ovarian cancer was present and diagnosable in June 2000. Dr. Salzman stated that more likely than not, the finding of potential blockage to one of Gail's ureters on the bone scan performed in February 2000, was caused by the ovarian tumor that was compressing her ureter. He testified that his opinion was that if an ultrasound had been done to follow up this finding, the ovarian mass would have been detected and ultimately diagnosed as ovarian cancer. Additionally, Howard Ozer, M.D., an oncologist, testified as an expert for plaintiffs. Dr. Ozer testified that in June 2000, Gail's ovarian tumor would have been detected by an ultrasound. He believed that the tumor was present in June 2000, and at that time, Gail would have had a sixty percent chance of living five years with the disease if it had been diagnosed.

Based upon the testimony of Dr. Salzman and Dr. Ozer, plaintiffs presented substantial evidence that Dr. Schwartz deviated from the standard of care, and that the cancer was present and diagnosable in June 2000. Therefore, the case was properly submitted to the jury, and the trial court did not err in denying defendant's motion for judgment notwithstanding the verdict. Point denied.

In its next three points on appeal, defendant asserts that the trial court erred in denying its motion to amend the judgment, or alternatively for remittitur or new trial because the judgment was excessive.

The standard of review for a trial court's denial of a motion to amend a judgment and for remittitur is for abuse of discretion. Brockman v. Soltysiak, 49 S.W.3d 740, 744 (Mo.App.2001). Remittitur will be considered appropriate where the verdict of the jury is excessive because it "exceeds fair and reasonable compensation for plaintiff's ... damages." Id.; (quoting Meyer v. McGarvie, 856 S.W.2d 904, 908 (Mo.App.1993)).

First, defendant claims that the judgment was excessive because the evidence did not support the jury's determination that Gail LaRose lost a fifty-seven percent chance of recovery. Defendant argues that the fifty-seven percent assessment is not supported by the evidence because it necessarily incorporates events not attributable to the negligence of defendant. According to defendant, the loss of chance must only be calculated by determining the chance at the time plaintiff alleges the disease should have been diagnosed less the chance at the time the disease is actually diagnosed. We disagree.

The cause of action of loss of chance of...