Lindquist v. Scott Radiological Group, Inc.

• Citation: 168 S.W.3d 635
• Decision Date: 30 August 2005
• Docket Number: No. ED 84085.,ED 84085.
• Parties: Karen LINDQUIST, as the Personal Representative of the Estate of Michael Lindquist, Deceased, Appellant, v. SCOTT RADIOLOGICAL GROUP, INC., Mid-America Orthopedic Surgery, Inc., and Barnes-Jewish St. Peters Hospital, Respondent.
• Court: United States State Supreme Court of Missouri

168 S.W.3d 635

Karen LINDQUIST, as the Personal Representative of the Estate of Michael Lindquist, Deceased, Appellant, v. SCOTT RADIOLOGICAL GROUP, INC., Mid-America Orthopedic Surgery, Inc., and Barnes-Jewish St. Peters Hospital, Respondent.

No. ED 84085.

Missouri Court of Appeals, Eastern District, Division Two.

May 31, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.

Application for Transfer Denied August 30, 2005.

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James E. Hollverson, Jr., Clayton, MO, for appellant.

Donald P. Myre, Robyn G. Fox, Paul N. Venker, St. Louis, MO, for respondents.

PATRICIA L. COHEN, Presiding Judge.

Introduction

Karen Lindquist ("Plaintiff"), the Personal Representative of the Estate of Michael Lindquist, appeals from a judgment of the Circuit Court of the City of St. Louis, which granted: (1) a new trial to Mid-America Orthopaedic Surgery ("Mid-America") and Barnes-Jewish St. Peters Hospital ("Barnes-Jewish"); and (2) judgment notwithstanding the verdict ("JNOV") to Scott Radiological Group ("Scott Radiological") in connection with Mr. Lindquist's claims for personal injury as a result of medical negligence. Barnes-Jewish also contends that the trial court erred in denying its motions for directed verdict, as well as its Motion for JNOV, and on the grounds that Plaintiff failed to adduce evidence of agency sufficient to impose vicarious liability. We affirm in part and reverse and remand in part.

Background

In March 1999, at age 51, Michael Lindquist developed pain between his shoulder blades. In an attempt to control the pain, Mr. Lindquist took over-the-counter medication. However, the pain worsened and, in early April 1999, Mr. Lindquist saw his family physician, Dr. Farrell. After an examination, Dr. Farrell diagnosed Mr. Lindquist as having "thoracic somatic dysfunction," administered osteopathic manipulation and prescribed medication.

When the manipulation and medication did not alleviate the pain, Mr. Lindquist sought a second opinion from Dr. Weis, an orthopedic surgeon. The intake nurse's records from Mr. Lindquist's April 20, 1999 visit indicate that he told the intake nurse that he was experiencing "sharp pain, squeezing pressure pain, in his upper back, right side, his mid back on the right side for approximately one week ... [and that] standing up and moving around is best position." When asked if he had done anything to injure his back, Mr. Lindquist explained that he washed his truck and picked up a couch. After examining Mr. Lindquist, Dr. Weis diagnosed him with "thoracal lumbar sprain with exacerbation of degenerative arthritis in his back." Dr. Weis prescribed muscle relaxants and pain medication, and scheduled Mr. Lindquist for a follow-up examination two weeks later.

Mr. Lindquist returned to Dr. Weis on May 4, 1999 complaining of continued soreness and trouble sleeping. At a May 11, 1999 appointment, Mr. Lindquist reported that his back was "a little better." In his medical records, Dr. Weis noted that Mr. Lindquist had "good healing of the muscle spasm." Dr. Weis further reported: "[T]his patient was improving greatly, to the point that he was almost over the symptoms that he presented with. I saw no reason at all to pursue any further examination of that patient in a particular area that was involved or any further testing that needed to be done. I fully expect him at the next visit no complaint [sic] or not return at all."

However, on May 25, 1999, Mr. Lindquist returned to Dr. Weis complaining of increasing back pain at night rendering him unable to sleep. Dr. Weis believed that Mr. Lindquist's increased pain at night and inability to sleep was due to degenerative arthritis in his back. Accordingly, Dr. Weis adjusted Mr. Lindquist's medications and ordered Mr. Lindquist to return in two weeks. Mr. Lindquist returned on June 1, 1999 complaining of muscle spasms. Dr. Weis attempted to relieve the spasms through manipulation and again altered Mr. Lindquist's medications. Mr. Lindquist never returned to Dr. Weis.

On June 7, 1999, Mr. Lindquist experienced mid-back pain that radiated into his chest. Fearing that Mr. Lindquist was having a heart attack, Plaintiff transported her husband to the emergency room at Barnes-Jewish Hospital in St. Peters. After Mr. Lindquist signed forms consenting to medical treatment, Doctors Gardiner and Deline treated Mr. Lindquist. Dr. Gardiner ordered a chest x-ray and released Mr. Lindquist and instructed him to return to his physician, Dr. Farrell, and to have an ultrasound of his gall bladder the next day.¹

On or about June 25, 1999, Mr. Lindquist called Dr. Farrell's exchange complaining of numbness in his lower chest area and legs. In response, the on-call doctor, Dr. Hingst, wrote a prescription for additional medication. At an appointment with Dr. Hingst on June 28, 1999, Dr. Hingst prescribed an "MRI L-spine," a lumbar MRI. Mr. Lindquist's symptoms, however, were concentrated in the thoracic area of his back. Plaintiff and Mr. Lindquist went directly from Dr. Hingst's office to have the MRI. Dr. McCown, a radiologist, reviewed the MRI and prepared a report indicating only degenerative changes in Mr. Lindquist's lower back.

Later that same evening, Mr. Lindquist discovered that he could not get off of the toilet or lift his legs after attempting to move his bowels. An ambulance transported Mr. Lindquist to Barnes-Jewish Hospital in St. Peters. On June 29, 1999, Mr. Lindquist was transferred to Barnes-Washington University where he learned that an x-ray and MRI revealed multifocal plasmacytoma, or malignant tumors of the plasma cells. Essentially, Mr. Lindquist became a paraplegic when his 5th thoracic vertebra disintegrated due to undiagnosed spinal cancer.

Mr. Lindquist filed suit against the corporate employers of eight doctors for alleged delayed diagnosis and treatment of Mr. Lindquist's spinal cancer.² The named defendants included: Scott Radiological; Barnes-Jewish; Family Medical Group of St. Peters, Inc.; Mid-America; SEC/EMCARE Emergency Care, Inc.; EMCARE Physician Services, Inc.; EMCARE of Missouri, Inc.; Multi-Care Medical, P.C.; Washington University; and Nydic Open MRI of Missouri.³ The case was tried, and, on May 13, 2003, a jury returned a verdict in favor of Mr. Lindquist on his personal injury claim and awarded him damages as follows: $5.5 million ($1,750,000 for past economic damages, including medical damages; $1,750,000 for past non-economic damages; $1,000,000 for future economic damages excluding medical damages; and $1,000,000 for future non-economic damages).

On June 18, 2003, the trial court entered its judgment on the verdict. Three defendants, Mid-America, Scott Radiological and Barnes-Jewish, filed post-trial motions.⁴

Mid-America filed a Motion for Judgment Notwithstanding the Verdict and in accordance with the Motion for Directed Verdict, or, in the alternative, Motion for a New Trial or, in the alternative, Motion to Amend the Judgment. In its Motion for Judgment Notwithstanding the Verdict, Mid-America alleged, inter alia, that: (1) Plaintiffs failed to produce legally sufficient evidence to make a submissible case of negligence, causation or damages against Mid-America; and (2) the verdict returned by the jury was manifestly irregular and defective because it permitted multiple recoveries for the same injury or category of damages.

In its alternative Motion for a New Trial, Mid-America alleged, inter alia, that: (1) the verdict against Mid-America was against the weight of the evidence because the only evidence of past economic loss was medical bills amounting to approximately $200,000 and the jury returned a verdict of $1,750,000 for past economic damages; and (2) the award of $1,000,000 for future economic damages was not supported by the evidence because Mr. Lindquist earned $87,000 per year prior to his voluntary retirement and, post-retirement, received substantial benefits from the school district. Mid-America further alleged that a new trial was necessary because of instructional errors. Specifically, Mid-America alleged, inter alia, that Instructions 18, 20, 22, 24 and 26:(1) included improper roving commissions; (2) were not contained in M.A.I.; and (3) were contrary to M.A.I. Furthermore, Mid-America alleged that the verdict and judgment in favor of Plaintiffs was grossly and shockingly excessive in amount indicating juror passion, prejudice and sympathy.

In its alternative Motion to Amend Judgment on non-economic damages, Mid-America alleged that a single statutory cap for non-economic damages should be applied to the award of $1,000,000 in non-economic damages. Mid-America further alleged that the verdict and judgment were manifestly irregular and defective because of erroneous instructions and an erroneous verdict form.

Scott Radiological filed a Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for New Trial. In its Motion for Judgment Notwithstanding the Verdict, Scott Radiological alleged, inter alia, that there was no legally sufficient medical evidence to indicate that: (1) Mr. Lindquist's damages were caused by care and treatment provided by Dr. McCown; (2) there was a discrepancy between the order for an MRI of the lumbar spine and the symptoms questionnaire completed by Mr. Lindquist; and/or (3) Dr. McCown had a duty to attempt to contact Dr. Hingst about the alleged discrepancy.

In its alternative Motion for a New Trial, Scott Radiological alleged, inter alia, that: (1) the verdict was against the weight of the evidence in that evidence revealed that Dr. McCown did not have a duty to contact Dr. Hingst and that Mr. Lindquist's condition and eventual outcome was not caused by any negligent acts by Dr. McCown; (2) Instruction Number 7 constituted an improper roving commission; (3) the trial court erroneously refused to...