Lowe v. Mercy Clinic E. Cmtys.

• Decision Date: 01 October 2019
• Docket Number: No. ED 106447,ED 106447
• Parties: Vincent LOWE, Respondent /Cross-Appellant, v. MERCY CLINIC EAST COMMUNITIES, James D. Cassat, M.D., Bryan J. Menges, D.O. and Mercy Hospitals East Communities, Appellants.
• Court: Missouri Court of Appeals

592 S.W.3d 10

Vincent LOWE, Respondent /Cross-Appellant,
v.
MERCY CLINIC EAST COMMUNITIES, James D. Cassat, M.D., Bryan J. Menges, D.O. and Mercy Hospitals East Communities, Appellants.

No. ED 106447

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: October 1, 2019
Application for Transfer Denied February 18, 2020

FOR APPELLANTS, William R. Price Jr., Jeffery Thomas McPherson, Paul L. Brusati, 7700 Forsyth Blvd., Suite 1800, Clayton, Missouri 63105, Philip L. Willman, Teresa M. Young, 800 Market Street, Suite 1100, St. Louis, Missouri 63101, Kenneth W. Bean, Bobbie J. Moon, 600 Washington Avenue, 15^th Floor, St. Louis, Missouri 63101.

FOR RESPONDENT, David M. Zevan, Rachel L. Roman, 1 North Taylor Avenue, St. Louis, Missouri 63108, Edward D. Robertson, III, 11150 Overbrook Road, Suite 200, Leawood, Kansas 66211, Edward D. Robertson, Jr., Mary Doerhoff Winter, 715 Swifts Highway, Jefferson City, Missouri 35109.

OPINION

James M. Dowd, Presiding Judge

592 S.W.3d 16

I. Introduction

Vincent Lowe brought this medical negligence suit in the Circuit Court of Franklin County against Bryan J. Menges, D.O., and James D. Cassat, M.D., and their respective employers Mercy Hospitals East Communities ("Mercy Hospitals") and Mercy Clinic East Communities ("Mercy Clinic"), alleging that as a result of their negligent failure to timely diagnose and treat the condition known as mesenteric ischemia which was causing inadequate blood supply to Lowe’s intestines, a substantial portion of his lower bowel had to be surgically removed leaving him with short bowel syndrome¹ which requires extensive ongoing medical care. The jury found in favor of Lowe returning a verdict for past and future economic and noneconomic damages totaling $14,245,545. The jury made comparative fault assessments of 65% to Dr. Menges and Mercy Hospitals, 25% to Dr. Cassat and Mercy Clinic, and 10% to Lowe for a net verdict of $12,820,990. After the trial court entered its judgment on the jury verdict in which the court ordered under § 538.220.2² the periodic payment of the future damages awarded by the jury, the parties filed cross-appeals. We affirm the judgment finding the doctors and their employers liable for Lowe’s injuries but we reverse and remand the portion of the judgment pertaining to attorney’s fees and to the periodic payment of future damages.

II. Factual Background

The following facts are undisputed: At the time of the medical care at issue in this case, Lowe was 52 years old and had an extensive history of vascular disease requiring treatments that included coronary bypass surgery and the placement of cardiac and iliac stents. Around 11:00 p.m. on April 30, 2014, Lowe presented to the emergency department at Mercy Hospitals in Washington, Missouri, with severe abdominal pain. Dr. Menges, the emergency room physician, examined Lowe and took a medical history. Initially suspecting that Lowe’s symptoms were the result of kidney stones, Dr. Menges ordered a non-contrast CT scan of Lowe’s abdomen. The radiologist reported to Dr. Menges that there was abdominal gas, possibly of the type known as portal venous gas, around Lowe’s liver. Because portal venous gas may be a sign of mesenteric ischemia—a dangerous condition involving the inadequate flow of blood to the intestines, which may lead to bowel death—the radiologist recommended an ultrasound to determine the character of the gas.

Dr. Menges then telephoned Dr. Cassat, the emergency room’s on-call surgeon, to confer about Lowe’s condition. Dr. Cassat recommended an outpatient ultrasound. Dr. Menges agreed and discharged Lowe home in the early morning hours of May 1, 2014, with a diagnosis of a back strain and with directions to call to schedule an ultrasound on an outpatient basis. Three days later, Lowe became critically ill and returned to the emergency room. He had

592 S.W.3d 17

septic shock, was diagnosed with partial bowel death, and had to undergo several emergency surgeries to save his life which included the removal of seven feet—nearly half the length—of his bowel.

Lowe claimed Dr. Menges rendered negligent medical care (1) by failing to order an inpatient ultrasound while Lowe was under his care in the emergency room; (2) by failing to rule out mesenteric ischemia; and (3) by discharging Lowe under the circumstances. Lowe claimed Dr. Cassat, the on-call physician, also rendered negligent care (1) by failing to come to the hospital to assess Lowe in the emergency room; and (2) by failing to order an inpatient ultrasound prior to Lowe’s discharge, among other tests.

After the jury returned the above verdict in Lowe’s favor for past and future economic and non-economic damages, the court entered its judgment. With respect to the past economic and non-economic damages, the judgment awarded Lowe a lump sum of $2,470,990 to be paid immediately. With respect to the remaining $10,350,000 in future damages, the defendants invoked their right under § 538.220 to have the future damages paid out in whole or in part in periodic payments. So, the trial court made the following entries: First, the court ordered the $900,000 in future noneconomic damages to be paid in two annual installments of $450,000. Then, for the remaining $9,450,000 in future medical damages, the court established a 26-year periodic payment schedule that ordered annual payments which started with $988,134 to be paid in the first year, $778,638 paid in years two through five, $707,486 in years six through ten, and $113,117 in years eleven through twenty-six. The court also made all future damages payments subject to the fixed interest rate of 1.48 percent derived from § 538.220.

Dr. Menges and Mercy Hospitals, and Dr. Cassat and Mercy Clinic, now appeal the trial court’s judgment, and Lowe cross-appeals.³ Drs. Menges and Cassat, their points considered together, (1) challenge the submissibility of Lowe’s case against each of them; (2) assert instructional error; (3) contend the trial court should have granted a mistrial based on testimony of one of Lowe’s medical experts; (4) complain that Lowe’s life care plan and supporting testimony were erroneously admitted; and (5) cite the trial court’s failure to adhere to § 538.220.2’s mandatory formula for calculating the amounts of periodic future damages payments.

Lowe, for his part, claims that the trial court erred by failing to award him a lump sum sufficient to pay his attorney’s fees because § 538.220.4 creates the presumption that, where the plaintiff has not made different arrangements with counsel, attorney’s fees "will be paid at the time the judgment becomes final." Lowe also faults the trial court for ordering pursuant to § 538.220.2 future payments to be subject to the fixed interest rate of 1.48 percent.

We reverse the trial court’s judgment solely as regards its damages award, on two grounds: (1) the court failed to adhere to § 538.220.2’s mandatory formula for calculating the amounts of periodic future damages payments; and (2) the court violated § 538.220.4 by failing to award Lowe a lump sum sufficient to pay his attorney’s fees. The case is remanded for entry of a new judgment in accordance with this

592 S.W.3d 18

opinion. In all other respects, the judgment is affirmed.

Discussion

I. Lowe made a submissible case of negligence against both doctors.

Each doctor challenges the submissibility of Lowe’s case. Dr. Menges contends Lowe failed to present sufficient evidence of a causal connection between Dr. Menges’s actions and Lowe’s injuries, while Dr. Cassat, for his part, asserts he owed Lowe no duty because he did not have a physician-patient relationship with him. We disagree on both counts.

A. The submissible case against Dr. Menges.

Viewing the record, as we must, in the light most favorable to Lowe, Wicklund v. Handoyo , 181 S.W.3d 143, 147 (Mo.App.E.D. 2005), we find that Lowe made a submissible case that Dr. Menges caused his injuries.⁴

Causation is established through expert testimony that there is a reasonable degree of medical or scientific certainty that but for the tortfeasor’s conduct, the injured party would not have been damaged. Id. at 149. A court may reverse the jury’s verdict for insufficient evidence only when there is a complete absence of probative fact to support the jury’s conclusion. Delacroix v. Doncasters, Inc. , 407 S.W.3d 13, 26 (Mo.App.E.D. 2013) (en banc) (citing Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo.banc 2010) ); Sanders v. Ahmed , 364 S.W.3d 195, 208 (Mo.banc 2012). Indeed, where reasonable minds may differ on the question before the jury, we cannot disturb the verdict. Wicklund , 181 S.W.3d at 147.

Here, Lowe presented ample evidence that Dr. Menges caused or contributed to cause his injuries. At least two experts including Dr. James Matthews, whose opinions Lowe adduced regarding Dr. Menges’s care, testified that Lowe had been suffering from mesenteric ischemia for several hours when he arrived at the emergency room on the evening of April 30, 2014. Both sides' experts agreed that it is important to treat mesenteric ischemia as early as possible since it is a "life-threatening condition" that may lead to—as it did here—bowel death. Dr....