Lunn v. Anderson, ED 92395.
| Decision Date | 08 December 2009 |
| Docket Number | No. ED 92395.,ED 92395. |
| Citation | 302 S.W.3d 180 |
| Parties | Janet LUNN, Plaintiff/Appellant, v. Scott ANDERSON, M.D., Heather White, M.D., Digestive Disease Specialists, Inc., Esse Health, and SSM Healthcare d/b/a Depaul Health Center, Defendants/Respondents. |
| Court | Missouri Court of Appeals |
Leonard P. Cervantes, Jennifer Suttmoeller, Cervantes & Associates, St. Louis, MO, for Appellant.
J. Thaddeus Eckenrode, Eckenrode-Maupin, Clayton, MO, for Respondents, Scott Anderson, M.D. And Esse Health.
David P. Ellington, Brown & James, St. Louis, MO, for Respondents, Heather White, M.D. and Digestive Disease Specialists, Inc.
Rodney M. Sharp, Natalie J. Kussart, Sandberg Phoenix & von Gontard, P.C., St. Louis, MO, for Respondent, SSM Health Care St. Louis d/b/a Depaul Health Care.
Janet Lunn (Plaintiff) appeals from trial court's entry of judgment, following a jury verdict, in favor of Defendants Scott Anderson, M.D., Heather White, M.D., and Digestive Disease Specialists, Inc., in Plaintiff's wrongful death medical malpractice action. On appeal, Plaintiff asserts the trial court erred: 1) in granting summary judgment in favor of defendant SSM Healthcare d/b/a DePaul Health Center (DePaul) prior to trial; 2) in denying Plaintiff leave to file a first amended petition claiming negligence based upon the use of sequential compression devices; and 3) allowing the jury to review certain evidence during deliberation. We reverse and remand the trial court's entry of summary judgment in favor of DePaul, but affirm the trial court's judgment in all other respects.
Plaintiff, the surviving daughter of John Holzer (Decedent) initiated this wrongful death action on behalf of Decedent's survivors against, among others, Dr. Anderson, Dr. White, Digestive Disease Specialists, Esse Health, and DePaul on December 30, 2005.1
The parties engaged in extensive discovery prior to trial. On November 10, 2006, Plaintiff took the deposition of Dr. Anderson, and on January 23, 2007, Plaintiff took the deposition of Dr. White. On January 8, 2008, Plaintiff filed her Supplemental Answers to Interrogatories and designated certain expert witnesses, including Russell Holman, M.D. (Dr. Holman), and Geraldine Breite. RN (Nurse Breite). On June 11, 2008, Defendants took Dr. Holman's deposition. On July 2, 2008, Defendants took the deposition of Nurse Breite. Defendants endorsed their experts in August 2008. Plaintiff took the deposition of Michael Cox, M.D., on September 10, 2008, and the deposition of Neil Ettinger, M.D., on September 18, 2008.
On September 17, 2008, Plaintiff sought leave to file an amended petition containing several new allegations. With regard to the alleged negligence of DePaul, Plaintiff alleged in paragraph 11 of her First Amended Petition that DePaul, through its agents, servants, and employees, was negligent, inter alia, because:
c. Defendant's nurses failed to question Dr. White or advocate for decedent to Dr. White for the re-ordering and continuance of Lovenox or other anti-coagulant medication after the June 7, 2002 operation; and, or
d. Defendant failed to properly use the sequential compression devices on decedent's legs which resulted in bilateral deep venous thrombus formation which required the administration of full dose IV Heparin and Coumadin, which caused or contributed to cause internal bleeding which, in turn, caused or contributed to cause decedent's death."
DePaul objected to the proposed amendments, stating that Plaintiff had named her expert witnesses in January 2008 and had more than nine months in which to amend her pleadings to conform to the expert's anticipated testimony. DePaul argued that allowing Plaintiff to amend her negligence claim against it three weeks prior to the scheduled trial would cause unnecessary and undue prejudice to DePaul. With regard to the negligence claim against DePaul, the trial court granted Plaintiff's motion for leave to file her amended petition in part, allowing paragraph 11(c), but striking paragraph 11(d).
As modified by the trial court, Plaintiff's First Amended Petition (Petition) alleged as follows. On May 10, 2002, Decedent was admitted to DePaul for abdominal pain and a small bowel obstruction, and was a patient of the Defendants until his death on June 21, 2002. On May 11, Decedent underwent abdominal surgery to correct the obstruction. Because Decedent was at risk to develop deep venous thrombosis (DVT), he was placed on anticoagulant therapy consisting of subcutaneously administered Heparin and sequential compression devices (SCDs, also referred to as Intermittent Pneumatic Compression or IPCs) applied to his lower extremities. The Heparin was discontinued on May 18, and Decedent was then placed on subcutaneously administered Lovenox.
Thereafter, Dr. White, Decedent's internist and gastroenterologist, in anticipation of a June 7 surgery she scheduled for Decedent to insert a PEG stomach feeding tube, entered an order to "hold" the administration of Lovenox on June 6.
Following the surgery, neither Dr. White nor Dr. Anderson, who was Decedent's attending and primary care physician, entered an order to restart Lovenox or other anti-coagulant medication. As a result, Decedent was not given anti-coagulant medication until June 17, when he was diagnosed with DVT of both legs. On June 17, Decedent was administered full dose IV Heparin drip and Coumadin. These anti-coagulant medicines, ordered on June 17 to treat Decedent's DVT, caused internal bleeding that resulted in Decedent's death on June 21.
Plaintiff alleged DePaul was careless and negligent because it failed to properly dress a central IV line and to use that degree of skill and learning ordinarily utilized by nurses or other health care professionals in inserting a central IV line, and/or to question Dr. White or advocate for Decedent to Dr. White for the re-ordering and continuance of Lovenox or other anti-coagulant medication after the June 7 operation.
Plaintiff alleged Dr. Anderson, Esse Health, Dr. White, and Digestive Disease Specialists were careless and negligent because they failed to restart the administration of Lovenox or other anti-coagulant medication after the Decedent underwent the June 7 surgery, and/or to use that degree of skill and learning ordinarily used by physicians in maintaining anti-coagulation medicines including Lovenox after the surgery.
As to DePaul, Dr. Anderson, and Esse Health, Plaintiff alleged carelessness and negligence in failing to diagnose Decedent's internal hemorrhage prior to his death; to communicate Decedent's signs and symptoms of internal bleeding prior to his death; to respond to numerous requests by nurses and other health care providers to changes in Decedent's medical condition; to use that degree of skill and learning ordinarily used by physicians and nurses in responding to Decedent's change in medical condition; and/or to coordinate Decedent's care by overseeing the re-ordering of Lovenox or other anti-coagulant medication after the June 7 surgery.
Plaintiff asserted that the carelessness and negligence of Defendants in failing to restart Lovenox or other anti-coagulant medication after this surgery resulted in Decedent developing DVT on June 17 that required the administration of full dose IV Heparin and Coumadin, which caused, or contributed to cause, internal bleeding that caused or contributed to the death of Decedent on June 21, 2002.
In addition to striking allegations that DePaul failed to properly use sequential compression devices on Decedent's legs following his surgery from the Petition, the trial court further modified the Petition by striking allegations of negligence involving the use sequential compression devices in relation to the other defendants, and also removed an allegation that the Defendants' acts of negligence constituted aggravating circumstances attending the death of Decedent, entitling his survivors for additional damages.
On August 22, 2008, DePaul filed a Motion for Summary Judgment. In its Motion for Summary Judgment, DePaul argued that Plaintiff's allegation of negligence as to DePaul was limited to the nurses who tended the Decedent during the initial 48 hours following surgery. Specifically, Plaintiff alleged the nursing staff had an obligation to inquire with Dr. White as to whether Dr. White wanted Decedent's blood thinning agent/anticoagulant, Lovenox, restarted. DePaul contended that Dr. White testified at her deposition that she consciously made a decision to not restart the Lovenox, and that Plaintiff's expert witness acknowledged in her deposition testimony that Dr. White would have declined to restart the Decedent on Lovenox even had the nurses questioned her about restarting the blood thinning agent. Given this testimony, DePaul argued Plaintiff could not make a submissible case on causation against the DePaul nursing staff, and, therefore, DePaul was entitled to summary judgment.
In her response to DePaul's Motion for Summary Judgment and Statement of Uncontested Facts, Plaintiff denied that her physician expert, Dr. Holman, acknowledged that Dr. White made a conscious decision to not restart Lovenox. Plaintiff further denied that her nursing expert, Nurse Breite, acknowledged that Dr. White would not have changed the hold order even if the nurses had asked Dr. White about the Lovenox. Plaintiff denied the assertion that no expert had testified to a reasonable degree of medical certainty that DePaul contributed to or caused Decedent's death, and affirmatively stated that Nurse Breite's expert opinion was that the nurses...
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