Lashmet v. McQueary
| Decision Date | 24 September 1997 |
| Docket Number | No. 21034,21034 |
| Citation | 954 S.W.2d 546 |
| Parties | Tina LASHMET, Plaintiff-Appellant, v. Frederick G. McQUEARY, M.D., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Paul L. Redfearn & Michael D. Holzknecht, for Appellant.
Bruce E. Hunt & Jeffrey S. Monroe, for Respondent.
Tina Lashmet (Plaintiff) appeals from the trial court's order which granted Frederick G. McQueary, M.D. (Defendant) a new trial.
Plaintiff brought this medical malpractice action against Defendant, other physicians and medical entities, for damages she alleged arose from their negligent failure to remove a wooden toothpick from her left foot.
Following a jury trial, a verdict was returned in Plaintiff's favor and assessed 100% of the fault against Defendant Dr. McQueary. The jury found that the other physicians and medical entities were not at fault. The jury awarded Plaintiff compensatory damages in the sum of $224,000.00. However, the trial court granted Defendant a new trial on all issues because it found that the fifth disjunctive submission of negligence, in paragraph First of Plaintiff's Instruction Number Eight, gave the jury no factual guidelines or standard to determine negligence, and therefore gave the jury a roving commission on the issue of Defendant's liability to Plaintiff.
Plaintiff raises one point of trial court error. She maintains that her fifth disjunctive submission of negligence, in Instruction Number Eight, more fully explained below, wherein the jury was asked to determine whether Defendant "failed to adequately inform and instruct the Plaintiff of the foreseeable risk of a retained toothpick in Plaintiff's foot," was not a roving commission. Therefore, she maintains that the trial court erred in granting Defendant's motion for a new trial.
On February 19, 1989, Plaintiff stepped on a toothpick with her left foot in the kitchen of her home in Bolivar, Missouri. Plaintiff immediately went to the emergency room of Citizens Memorial Hospital where she received a tetanus shot and was released. On February 20, 1989, Plaintiff met with Dr. Dias, who prescribed some antibiotics for Plaintiff and suggested that she go home and keep her foot elevated. Plaintiff's foot continued to get worse, however, following her visit with Dr. Dias. On February 24, 1989, Plaintiff returned to Dr. Dias, and he again instructed her to go home and keep her left foot elevated. Plaintiff followed Dr. Dias' instructions but her foot did not improve.
On February 26, 1989, Plaintiff traveled to Springfield, Missouri, to be examined in the emergency room of St. John's Hospital. On that day, Dr. Newport made an incision in Plaintiff's left foot, removed some "debris," closed the incision, and released Plaintiff from the hospital.
Plaintiff's foot became much worse, however, after that surgical procedure was performed by Dr. Newport. Plaintiff's foot was "real red" and "a lot more swollen." On February 28, 1989, Plaintiff, pursuant to Dr. Newport's instructions, returned to St. John's Hospital. On that day, Plaintiff met with Dr. Mire, who examined her foot, gave her some antibiotics, and sent her home.
On March 10, 1989, Plaintiff returned to St. John's Hospital because her foot was still not improving and because she was experiencing "fever and chills." On that visit, Plaintiff met with Dr. Skeins, who told her she needed to have additional surgery because he believed something must still be embedded in her left foot.
Plaintiff was then referred to Defendant, a surgeon. Defendant examined Plaintiff's foot on March 10, 1989, and explained to her that her foot was in a condition to be expected following the surgery performed by Dr. Newport.
Plaintiff then met with Defendant on two separate occasions, once on March 14, 1989, and again on March 17, 1989. On those visits, Defendant explained to Plaintiff that there were no signs of "active" infection, that her left foot appeared to be "well-healed" and that he believed that Plaintiff's left foot would recover without additional medical treatment. Defendant testified that the prior incision made in her foot appeared to be healed and that he continued her "off antibiotics." He did suggest physical therapy treatment for Plaintiff's left foot. Plaintiff received no medical treatment for her left foot for almost one year following her last visit with Defendant.
Sometime during February 1990, Plaintiff met with Dr. Harris in Bolivar, Missouri because she was still experiencing pain and because she had developed some "knots" on the top of her left foot. Dr. Harris referred Plaintiff to Dr. Kimbrough in Springfield, Missouri. Plaintiff then met with Dr. Kimbrough and explained to him that her former doctors had previously removed a toothpick from her left foot. She told Dr. Kimbrough that "[t]hey got it out."
Dr. Kimbrough decided to hospitalize Plaintiff in early March 1990 so that an abscess could be drained from her left foot by him and Dr. Brown. At that time, Dr. Kimbrough and Dr. Brown discovered some anaerobic bacteria in Plaintiff's foot known as actinomyces. This kind of bacteria is expected when there is a puncture wound made by an object, such as a toothpick, that has been contaminated by human saliva. Plaintiff was prescribed high dosages of penicillin to control the infection in her left foot.
Plaintiff's left foot began to feel a little better but she was still experiencing pain. Drs. Kimbrough and Brown then referred Plaintiff to Dr. Robin Quinn, a neurologist. Dr. Quinn decided that Plaintiff should undergo "sympathetic blocks." This procedure would require that a catheter be placed in Plaintiff's spine and every day for one week a solution would be injected into her spine to alleviate her pain. This procedure provided some relief from Plaintiff's left foot pain.
In late 1990, Dr. Quinn decided to perform a lumbar sympathectomy on Plaintiff, a more aggressive and invasive procedure, for which Plaintiff was again hospitalized. During this procedure, the surgeons surgically removed the sympathetic nerves which affected Plaintiff's left leg and left foot. This procedure provided additional relief but Plaintiff was still experiencing pain in her left foot.
On March 19, 1991, with Plaintiff still experiencing pain, Dr. Brown performed exploratory surgery on Plaintiff's left foot, which revealed that there was three-quarter's of a wooden toothpick embedded in her left foot. This toothpick was the source of all Plaintiff's pain in her left foot. Plaintiff testified that after the toothpick was removed, "I started feeling well again."
However, Plaintiff was still suffering from residual effects of pain in her left foot. Plaintiff was also suffering from the inability to properly ambulate from having favored her left foot for more than two years from the date that the toothpick became embedded in her left foot. After the toothpick was ultimately removed, Plaintiff brought this medical malpractice action.
The trial court's grant of a new trial is presumptively correct and will be disturbed only in the event of manifest abuse of discretion. Nguyen v. Haworth, 916 S.W.2d 887, 888-89 (Mo.App.1996). The appellate court indulges every reasonable inference favoring the trial court's ruling. Id. at 888.
However, a trial court's authority to grant a new trial is discretionary only as to questions of fact, not as to matters of law. Meyer v. McGarvie, 856 S.W.2d 904, 907 (Mo.App.1993). Instructional error involves a question of law. Id. Therefore, if a new trial has been granted for such error, the appellate court must examine the record presented to determine whether the challenged instructions were erroneous and, if so, whether such instructions prejudiced the party challenging the instructions. Id.
In Plaintiff's sole point on appeal, she contends that the trial court erred in granting Defendant a new trial on the ground that Plaintiff's Instruction Number Eight granted the jury a roving commission. The trial court found that the fifth disjunctive submission of negligence in paragraph First of Plaintiff's Instruction Number Eight gave the jury no factual guidelines or standard to determine Defendant's negligence. We disagree.
Plaintiff's Instruction Number Eight was worded in the following manner:
Your verdict must be for the Plaintiff if you believe:
First, Defendant Fred G. McQueary either:
failed to order a CAT Scan to locate the toothpick, or failed to order an MRI to locate the toothpick, or
failed to remove the toothpick and administer adequate antibiotics, or
failed to remove the toothpick, or
failed to adequately inform and instruct the Plaintiff of the foreseeable risk of a retained toothpick in Plaintiff's foot, and
Second, Defendant Fred G. McQueary, in any one or more of the respects submitted in paragraph First, was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage to Plaintiff. (emphasis added).
It is the fifth submission of negligence of paragraph First, emphasized above, that the trial court found to be a roving commission.
A jury instruction amounts to a "roving commission" when it fails to advise the jury, or point out in any way, what acts or omissions on the part of the defendant, if any, found by them from the evidence, would constitute liability. Paisley v. Kansas City Pub. Serv. Co., 351 Mo. 468, 173 S.W.2d 33, 38 (1943); see also Spain v. Brown, 811 S.W.2d 417, 420-21 (Mo.App.1991); Douglas v. Hoeh, 595 S.W.2d 434, 438 (Mo.App.1980). A jury instruction may also be considered a roving commission when it is "too general." Paisley, 173 S.W.2d at 38. Where an instruction submits a question to the jury in a broad, abstract way without being limited to any issues of fact or law developed in the case, it may be considered a "roving commission." Gillioz v....
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