MacDonald v. Sheets

• Decision Date: 16 November 1993
• Docket Number: No. 62804,62804
• Citation: 867 S.W.2d 627
• Parties: Cynthia MacDONALD, Appellant, v. J.L. SHEETS, D.D.S., Respondent.
• Court: Missouri Court of Appeals

Page 627

867 S.W.2d 627

Cynthia MacDONALD, Appellant, v. J.L. SHEETS, D.D.S., Respondent.

No. 62804.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Nov. 16, 1993.

Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 16, 1993.

Application to Transfer Denied Jan. 25, 1994.

G.H. Terando, Poplar Bluff, for appellant.

Maurice B. Graham, Fredericktown, for respondent.

CRIST, Judge.

Medical malpractice case. Plaintiff Cynthia MacDonald (Patient) appeals the entry of summary judgment for Defendant J.L. Sheets, D.D.S. (Doctor). We reverse and remand.

In early 1987, Patient consulted with an orthodontist, John N. Fox, D.D.S., regarding her overbite. Dr. Fox diagnosed Patient with severe skeletal dysplasia, where the jaw bones are misaligned to the extent orthodontia alone cannot rectify the overbite. Dr. Fox recommended Patient receive surgery to correct the dysplasia by moving the jaw bones. Patient consulted with Doctor, an oral surgeon. On August 10, 1989, Doctor performed surgery to correct the dysplasia. Doctor also performed a turbinectomy. On August 23, 1989, Patient developed a severe nose bleed. Patient lost approximately a liter to two liters of blood before being admitted to the emergency room. At the time of admission, Patient did not have a blood pressure. Bruce F. Dennison, M.D., was able to stop the bleeding by using balloon catheters in Patient's nose.

On May 22, 1991, Patient filed a two-count petition in the Circuit Court of Cape Girardeau County. In Count I, Patient alleged medical malpractice against Doctor. Patient alleged Doctor had failed to exercise the ordinary skill and care used by other oral surgeons in carelessly and negligently: (1) performing the operations described for alignment; (2) performing a turbinectomy at the same time; (3) failing to properly inform or obtain consent of Patient; (4) performing surgical procedures which he was not qualified to perform; and (5) failing to provide adequate follow-up care of Patient. In Count II, Patient alleged Doctor had breached his contract with her by misrepresenting to her the turbinectomy would allow her to breathe easier.

On September 10, 1991, Doctor filed his amended answer and counterclaim. Doctor claimed he had provided care to Patient to align her teeth and jaw and had performed a maxillary osteotomy and mandibular osteotomy. In consideration for such treatment, Doctor alleged Patient had agreed to pay the reasonable amount of his medical fees. Defendant averred Patient was indebted to him for the reasonable amount of his medical fees, $7,400, plus 2% interest per month until paid.

On May 14, 1992, Doctor filed a motion for summary judgment on his counterclaim. Doctor averred Patient had agreed to pay the reasonable amount of fees, as well as any finance charges or interest. Doctor attached a copy of a consent form signed by Patient.

On June 24, 1992, Doctor filed a motion for a protective order. Doctor averred Patient had failed to provide him with the names of all expert witnesses she planned to call at trial other than those mentioned in her interrogatory answers. Defendant asked the court to prohibit Patient from endorsing any additional expert witnesses because trial was only three weeks away.

On July 1, 1992, Doctor filed a motion for summary judgment contending Patient has failed to furnish an expert who would testify as to the standard of care and Doctor deviated from said standard. Doctor also filed a motion in limine on July 12, 1992, to limit the testimony of Dr. John Fox and Dr. Bruce Dennison to their care and treatment of Patient. Doctor argued Drs. Fox and Dennison were not qualified to testify as expert witnesses, because they had disqualified themselves as experts. Attached to Doctor's motion for summary judgment were portions of the depositions of Drs. Fox and Dennison.

On July 14, 1992, Patient filed her suggestions in opposition to the motion for summary judgment. Patient referred to deposition testimony of Drs. Fox and Dennison, which she alleged established the standard of care and Doctor's deviation from it.

On July 13, 1992, a hearing was held on Doctor's motion for protective order, motion in limine, and motions for summary judgment on Patient's claims and Doctor's counterclaim. On July 17, 1992, the trial court issued its order granting all four motions in favor of Doctor.

Patient appeals, alleging the trial court erred: (1) in sustaining Doctor's motion in limine, because the expert witnesses had not conceded their inability to testify to all the medical issues in controversy; (2) in sustaining Doctor's motion for summary judgment because genuine issues of material fact remained; and (3) in sustaining Doctor's motion for summary judgment on his counterclaim because genuine issues of material fact remained.

We will consider Patient's first two points together. The trial court sustained both Doctor's motion in limine and motion for summary judgment. The trial court first limited the testimony of Drs. Fox and Dennison to their respective care and treatment of Patient. It found Dr. Fox and Dr. Dennison had both conceded their inability to testify to the medical issues in controversy and were not qualified to testify to the standard of care exercised by Doctor. The trial court then granted summary judgment for Doctor, finding Patient had failed to produce qualified expert testimony regarding medical negligence.

Summary judgment is proper where Doctor has proved "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law." Rule 74.04(c). Doctor may meet his burden by merely showing Patient has failed to prove one of the elements of her cause of action. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 381 (Mo. banc 1993). In reviewing the record, we examine it in the light most favorable to Patient. Richardson v. Rohrbaugh, 857 S.W.2d 415, 417 (Mo.App.1993).

To prove her claim of medical malpractice, Patient must show Doctor's acts or omissions: (1) failed to meet the requisite standard of care; (2) were performed negligently; and (3) caused her claimed injury or condition. Pinky v. Winer, 674 S.W.2d 158, 160 (Mo.App.1984). Patient must present expert testimony to prove Doctor failed to exercise that degree of skill and care ordinarily used under the same or similar circumstances by members of his profession. Mills v. Redington, 736 S.W.2d 522, 524 (Mo.App.1987); Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 883 (Mo.App.1985); Cebula v. Benoit, 652 S.W.2d 304, 307 (Mo.App.1983).

To qualify as an expert, a witness must have "knowledge, skill, experience, training, or education" so that his or her opinion will probably aid the trier of fact. § 490.065, RSMo Supp.1992; Eichelberger v. Barnes Hosp., 655 S.W.2d 699, 704 (Mo.App.1983). This determination is within the discretion of the trial court. Dine v. Williams, 830 S.W.2d 453, 457 (Mo.App.1992); Eichelberger, 655 S.W.2d at 704. However, the experience and competence of a medical expert goes to the weight, not the admissibility, of his or her testimony. Swope v. Printz, 468 S.W.2d 34, 40 (Mo.1971); See also, Lisec v. Coy, 793 S.W.2d 173, 178 (Mo.App.1990). "When an expert from a particular profession is called to testify, it is not normally required that he be a specialist in a particular branch of that profession." Hiers v. Lemley, 834 S.W.2d 729, 733 (Mo. banc 1992).

We find the court erred in finding Dr. Fox and Dr. Dennison were not qualified to testify as experts. Dr. Fox received a Bachelor of Science in Chemistry from John Carroll University and his Doctor of Dental Surgery from the University of Missouri-Kansas City. He also received a Master of Science in Orthodontics from St. Louis University. He was licensed for general practice in dentistry in Missouri. While he was not an oral surgeon, he testified he had studied oral surgery and was familiar with recommended procedures. Further, he has had a professional relationship with oral surgeons since 1980. He also stated he has worked closely with about a dozen different oral surgeons over the years and has frequently observed fixation and stabilization post-surgically. Dr. Fox is clearly qualified to testify as an expert. See, Donjon v. Black & Decker (U.S.), Inc., 825 S.W.2d 31, 32 (Mo.App.1992).

In addition, Dr. Dennison is qualified to testify as an expert. He is an otolaryngologist, a medical doctor who specializes in ear, nose, and throat surgery (ENT). He received his medical degree from Medical College of Wisconsin in 1981. Although not in the dental profession, Dr. Dennison testified his training to specialize in ENT overlaps a great deal with oral surgery. The extent of his experience merely goes to the weight of his testimony, not the admissibility. See, Swope, 468 S.W.2d at 40.

The trial court further erred in finding both witnesses had conceded their inability to testify to the medical issues in controversy. The court relied upon the Childs v. Williams, 825 S.W.2d 4 (Mo.App.1992), where the plaintiff brought a claim for intentional infliction of emotional distress....