Lawton v. Jewish Hosp. of St. Louis, 47129

• Decision Date: 04 September 1984
• Docket Number: No. 47129,47129
• Citation: 679 S.W.2d 370
• Parties: Edward LAWTON and Thea Lawton, Plaintiffs-Respondents, v. The JEWISH HOSPITAL OF ST. LOUIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 370

679 S.W.2d 370

Edward LAWTON and Thea Lawton, Plaintiffs-Respondents, v. The JEWISH HOSPITAL OF ST. LOUIS, Defendant-Appellant.

No. 47129.

Missouri Court of Appeals,

Eastern District,

Division One.

Sept. 4, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 16, 1984.

Application to Transfer Denied

Nov. 20, 1984.

Parks G. Carpenter, Dana D. Eilers, St. Louis, for defendant-appellant.

Charles L. Merz, St. Louis, for plaintiffs-respondents.

SNYDER, Presiding Judge.

This is a medical malpractice action brought by Edward Lawton and his wife for injuries suffered when, as a patient at Jewish Hospital, Mr. Lawton fell while attempting to remove himself from a geriatric chair. A jury sitting before the circuit court of the City of St. Louis awarded Edward Lawton $85,000 and Thea Lawton $5,000. Jewish Hospital now appeals. The judgment is reversed and remanded for a new trial on the issue of damages only.

On appeal, Jewish Hospital raises five points of error. First, it challenges the admission into evidence of a videotape of Mr. Lawton. Second, it argues the trial court committed plain error by allowing plaintiff's counsel to engage in improper closing argument. Third, appellant contends that it was error to admit into evidence a purported summary of special damages. Fourth, it claims error in the admission into evidence of a deposition of a witness who was present in the courtroom. Fifth, appellant challenges the wording of plaintiff's verdict direct instructions.

On April 10, 1980, Edward Lawton was admitted to Jewish Hospital suffering from pneumonia and a fever. He was 88 years old. The record indicates that prior to that admission, Mr. Lawton had a history of medical problems, including urological disorders (requiring a colostomy), kidney problems, Parkinson's disease and heart disease.

Mr. Lawton was found to have a huge abscess surrounding his left kidney. He underwent surgery during the course of which the left kidney was removed and the abscess drained.

Lawton's behavior was erratic, apparently due to his advanced age, ill health and deafness. At times, he appeared lucid, communicative and cooperative. At other times he was confused, angry and combative.

On May 18, 1980, Lawton was visited in his hospital room by his wife. Mrs. Lawton went to the nurse's desk and requested that Nurse Barbara Lueders remove Lawton from his bed and place him in a "geriatric chair." A "geriatric chair" resembles a "high chair," with a removeable tray that latches on the arms of the chair, with varying degrees of proximity to a patient. Although the chair's purpose is not solely that of a restraint, its effect is to prevent a person from leaving the chair until the tray has been removed.

Nurse Lueders then left the room. Sometime during Mrs. Lawton's visit, Mrs. Lawton left the room to go to a drinking fountain. When she returned, Mr. Lawton was on the floor, bleeding from his head and complaining that his leg was broken. It was later determined that Mr. Lawton had fractured his right hip and surgery would be necessary. Because of residual complications from the prior kidney surgery, the hip surgery was delayed.

Mr. Lawton left Jewish Hospital July 24, 1980 and went to Forest Park Manor, a recuperative facility, where he remained until his readmission September 29, 1980 to Jewish Hospital. Surgery was performed on the hip fracture, but because of the poor condition of the bone and bone stock, the preferred procedure could not be used. The surgeon performed a girdlestone type operation in which the ball portion of the hip joint is removed and not replaced. A permanent disability resulted. Other necessary evidence will be reviewed as the allegations of error are discussed.

Appellant first contends that the trial court erred in admitting into evidence a videotape of Mr. Lawton going about his daily routine. Mr. Lawton's health prohibited his attendance at trial. The tape showed Mr. Lawton using his walker, getting in and out of bed, using the bathroom, being shaved and dressed, and also moving around the house. The trial judge reviewed the tape in the absence of the jury and admitted it into evidence upon the condition that it be played without sound. He also directed that certain portions he considered irrelevant or inflammatory be excised. ¹

The decision of the trial court in the admissibility of a videotape must be accorded great weight and will not be disturbed on appeal unless it is shown that there has been an abuse of discretion. Cryts v. Ford Motor Co., 571 S.W.2d 683, 691 (Mo.App.1978).

Here, the film illustrated the impact of the hip injury on respondent's daily routine. The nature and extent of respondent's injuries were facts essential to proof of his claims and necessary for the jury's determination of damages. Kickham v. Carter, 314 S.W.2d 902, 908 (Mo.1958). The videotape provided information essential to a fair jury determination because respondent's ill health prevented his appearance in the courtroom. Its probative value outweighed any prejudice that might have resulted.

The trial court carefully reviewed the videotape, removed from the jury's consideration any portions determined to be inflammatory or prejudicial, and ordered that it be played without the sound. There is nothing in the record before this court to indicate that the admission of the remaining portions of the videotape constituted an abuse of discretion. The point is denied.

In his second point, appellant argues that the trial court committed plain error by allowing respondent's counsel to engage in an improper closing argument. Appellant failed to object at trial. Although timely objections probably would have been sustained, it is unnecessary to discuss the content of that argument because the point is not reviewable by this court.

The plain error rule should not be invoked here to excuse mere failure to object to argument a party deems improper. The rule may be resorted to only in those exceptional circumstances when the reviewing court deems that manifest injustice or a miscarriage of justice occurred. Goodman v. Firmin Desloge Hospital, 540 S.W.2d 907, 917 (Mo.App.1976). This court finds no such circumstances. Appellant's second point is denied.

In his third point, appellant contends that a purported summary of special damages should not have been admitted into evidence. This court agrees.

At trial, Mrs. Lawton testified as to Mr. Lawton's medical expenses, using a summary of expenses compiled by her and respondent's attorney.

The summary was as follows:

                JEWISH HOSPITAL                  $6,218.69
                FOREST PARK MANOR                 1,057.50
                JEWISH HOME FOR
                  THE AGED                       10,473.00
                DR. JEROME GILDEN                 1,905.50
                PRIVATE NURSING
                  CARE
                             1980: $  823.00
                             1981: 7,729.80
                             1982: 7,852.00
                (as of 2/12) 1983: 1,160.00
                             ---------------
                                                 17,564.88
                WHEELCHAIR &amp
                  WALKER RENTAL                     565.54
                                                ----------
                                                $37,785.11
                

No bills or copies of bills were introduced into evidence to substantiate those expenses, nor was there any evidence to support a conclusion that those expenses originated solely because of the broken hip injury instead of Mr. Lawton's other physical problems.

A medical practitioner is liable only for the damage or injury caused by his or her malpractice, and not for the results of the patient's original injury or illness. State ex rel. Baldwin v. Gaertner, 613 S.W.2d 638, 640[1, 2] (Mo. banc 1981); Guntner v. Whitener, 75 S.W.2d 588, 592 (Mo.App.1934).

In a negligence case, a defendant can be held liable only for those damages directly caused by his negligence. See Vest v. City National Bank & Trust Co., 470 S.W.2d 518, 521 (Mo.1971). Similarly, a physician or surgeon, or in this case a hospital responsible for the actions of a nurse employee, is liable only for the damage or injury caused by any malpractice, and not for the results of the patient's original injury or illness. Gunter v. Whitener, 75 S.W.2d 588, 592 (Mo.App.1934).

At the time of the accident, respondent was in the hospital suffering from pneumonia and a fever. He had undergone major surgery for removal of an abscessed kidney. He was 88 years old. Mr. Lawton's behavior was erratic because of his advanced age, ill health and deafness. At times he appeared lucid, communicative and cooperative. At other times he was confused, angry...