Marion v. Marcus
| Decision Date | 29 August 2006 |
| Docket Number | No. WD 65331.,WD 65331. |
| Citation | 199 S.W.3d 887 |
| Parties | Gail D. MARION, Appellant, v. David E. MARCUS, M.D., Robert J. Lackamp, M.D., Stephen N. Blatt, M.D., and Professional Radiology of ST. Joseph, P.C., Respondents. |
| Court | Missouri Court of Appeals |
Roy F. Walters, Kansas City, for Appellant.
D. Bruce Keplinger, Overland Park, KS, Gregory P. Forney and Charles H. Stitt, Kansas City, for Respondent.
Gail Marion appeals the judgment, after a jury verdict, finding defendants not at fault in her loss of chance case after she developed breast cancer. Ms. Marion raises five points on appeal. The first challenges the trial court's exclusion, during Ms. Marion's rebuttal evidence, of the defendants' "biopsy log." The second through fourth points challenge the trial court's refusal to submit her proffered verdict directors containing additional alleged acts of negligence by each defendant doctor. The fifth point challenges the verdict director regarding allocation of fault to her regular treating physician, who was not a defendant. The judgment is affirmed.
In January 2000, Ms. Marion conducted her monthly breast self-examination and discovered a pea-sized lump in her right breast. Within a few days, Ms. Marion scheduled a mammogram at Heartland Hospital in St. Joseph and a subsequent office visit with her primary care physician, Dr. Leanna Hoffman, to discuss the results. The mammogram included images of both breasts. The mammogram indicated two "lesions"1 on the right breast, one of which was "superficial" and the other deep, near the chest wall. The mammogram also indicated a lesion on her left breast.
Three radiologists at Heartland Hospital read Ms. Marion's mammogram, with differing interpretations. Dr. Stevens recommended following up with a sonogram. Dr. Marcus recommended following up with either a sonogram or MRI, but added that "MRI may be more advantageous" to evaluate the deep lesion, because MRI "will more reliably image the deep tissues near the chest wall." To break the "tie" between Drs. Marcus and Stevens, Dr. Lackamp also read the mammogram, and recommended that the deep lesion be evaluated with MRI, the superficial lesion with sonogram. Dr. Marcus's report, which includes Dr. Lackamp's addendum, classified the findings as "BI-RADS 0," indicating further radiological evaluation was needed.
Dr. Hoffman said that, after the mammogram was done, she determined by palpating the superficial lesion on the right breast that it was fibrocystic, not cancerous. Dr. Hoffman's only remaining uncertainty was the deep lesion. To evaluate the deep lesion, Dr. Hoffman ordered the MRI, not the sonogram, based on Dr. Marcus's report and Dr. Lackamp's addendum, and a conversation with a radiologist who clarified the reason for recommending MRI over sonogram. The MRI included both breasts. Dr. Blatt read the MRI in conjunction with the mammogram and reported that each lesion on the right breast was "likely to be benign." He also reported that the MRI was "not specific" as to the nature of the left breast lesion. Dr. Blatt's report added the following:
Recommendations for follow-up include further evaluation of the lesion within the left breast with sonography at this time. In addition, the findings in the right breast also warrant close further evaluation due to report of a palpable nodule. Further evaluation of the right breast takes the form of a repeat x-ray evaluation ... in six months. These recommendations should be carefully modified if the physical findings change.
BI-RADS 0. Additional imaging requested for further evaluation including sonography of the left breast and six month follow-up of the right breast.
After the MRI, Ms. Marion called Dr. Hoffman's office and was told by a nurse, who was reading from Dr. Blatt's report, that the palpable lump in the right breast was probably benign. Ms. Marion asked if she needed to return to Dr. Hoffman's office, and the nurse replied that the doctor's office would contact her if Dr. Hoffman wanted her to come back. Ms. Marion did not receive a call.
In March, Ms. Marion noticed the palpable lump in the right breast had grown larger, and scheduled another visit with Dr. Hoffman on March 27. Dr. Hoffman, relying on Dr. Blatt's report, recommended another mammogram six months after the date of the initial mammogram. Ms. Marion scheduled a mammogram August 15 and a general physical exam with Dr. Miller August 18. Dr. Miller examined Ms. Marion's breasts and determined that the right breast must be biopsied immediately. The biopsy was performed August 22, and the results showed that Ms. Marion had cancer. Ms. Marion subsequently developed a mastistic brain tumor, with effectively no chance of recovery.
Ms. Marion filed this suit against Drs. Marcus, Lackamp, and Blatt, alleging their actions negligently caused her to lose a material chance of recovery, which decreased from 75% in January and February, when she had the initial tests and was told the lump was benign, to 20% in August, when the lump was biopsied and found to be cancerous. The jury returned a verdict assessing no fault to the radiologist defendants.
Ms. Marion's first point on appeal alleges error in the trial court's refusal, during Ms. Marion's rebuttal, to admit Heartland Health Center's "biopsy log." The mammography technician whose deposition was offered to lay foundation for the log stated that the log listed patients for whom the radiologists at Heartland Health had ordered or recommended biopsy. The technician explained that the purpose of the log was to ensure follow-up on biopsy orders and recommendations. The log indicates briefly in one column the findings from radiological tests such as sonograms and mammograms, and in another column the findings from biopsy. Additional columns list the referring doctor, the radiologist, the patient, and a date. Ms. Marion's name does not appear on the log.
At trial, during rebuttal, Ms. Marion offered the log (1) to show that the radiologists did sometimes biopsy a "density," rebutting the radiologists' testimony that they did not recommend biopsy based on the mammogram findings because the mammogram indicated only a "density," rather than a "mass," and they would never biopsy a density; and (2) to show that Dr. Blatt had recommended biopsy in other cases that were "less serious" than Ms. Marion's, and therefore he should have recommended biopsy for Ms. Marion.
On appeal, Ms. Marion asserts different grounds for the relevance of the log, and abandons the grounds asserted at trial. She now argues that the log (a) rebuts the radiologists' claims that they declined to recommend biopsy because it was untimely so long as the radiology findings remained BI-RADS 0, incomplete; and (b) rebuts Dr. Blatt's claim that, in contrast to his written recommendation, he orally recommended to Dr. Hoffman that she order a biopsy. Based on the relevancy grounds advanced at trial, the court found the log constituted improper rebuttal and, even if it were proper rebuttal, it was nevertheless inadmissible.
"[A]llegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal from a jury tried case." Rule 84.13(a). When an appellant challenges the exclusion of evidence, the "appellant is limited to the reason he gave at the time he made the offer of evidence." Atherton v. Kansas City Power & Light Co., 356 Mo. 505, 202 S.W.2d 59, 64 (1947). Frein v. Madesco Inv. Corp., 735 S.W.2d 760, 762 (Mo.App. E.D.1987). The relevancy grounds asserted at trial are abandoned here by not being raised on appeal, and the grounds now raised were not preserved by being presented to the trial court.
Ms. Marion's second point alleges the trial court erred in refusing to instruct the jury on additional alleged acts of negligence by Dr. Marcus. The court instructed the jury that it must find against Dr. Marcus if the jury found that Dr. Marcus breached the duty of care when he
recommended magnetic resonance imaging of the palpable mass in plaintiff's right breast instead of ultrasound imaging, or
did not recommend a biopsy of the palpable mass on plaintiff's right breast[.]
Ms. Marion asked the court to also instruct the jury to find against Dr. Marcus if the jury found the doctor breached the duty of care when he
characterized the palpable mass on plaintiff's right breast as "most likely represents a benign process" or "suggesting a non-malignant process," or stated that MRI would, as compared to ultrasound, more reliably image the palpable mass on plaintiff's right breast[.]
Regarding our standard for reviewing a trial court's refusal to give a proffered jury instruction, both parties state that the trial court has discretion to give, or refuse to give, an instruction. The cases cited by the parties indeed stand for this proposition. However, those cases conflict with Rule 70.02(a), which declares that jury instructions "shall be given or refused by the court according to the law and the evidence in the case." The imperative "shall" in Rule 70.02(a) does not admit discretion on the part of the trial judge if the proffered instruction is supported by the evidence and the law and is in proper form. Rule 70.02(a), rewritten in 1993, conforms to the Missouri Supreme Court's holding that "a party is entitled to an instruction upon any theory supported by the evidence." Vandergriff v. Mo. Pac. R.R., 769 S.W.2d 99, 104 (Mo. banc 1989) (emphasis added); Mast v. Surgical Serv. of Sedalia, L.L.C., 107 S.W.3d 360, 380 (Mo.App. W.D.2003) (Holliger, J., dissenting) (citing Vandergriff). The refusal to give a verdict director...
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Miller v. Norfolk S. Ry. Co., WD 82088
...supported by the evidence and the law." Cluck v. Union Pac. R.R. Co. , 367 S.W.3d 25, 32 (Mo. banc 2012) (citing Marion v. Marcus , 199 S.W.3d 887, 893 (Mo. App. W.D. 2006) ). If we find instructional error, we reverse "only if such an error results in prejudice and materially affected the ......
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...65 (Mo. banc 2009). The instruction must be supported by both the evidence presented at trial and the applicable law. Marion v. Marcus , 199 S.W.3d 887, 892 (Mo. App. 2006). We will reverse for instructional error only if "the instruction misdirected, misled, or confused the jury and result......
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Ford v. Ford Motor Co.
...jury is a matter that this Court reviews de novo. Cluck v. Union Pacific R. Co. , 367 S.W.3d 25, 32 (Mo. banc 2012) ; Marion v. Marcus , 199 S.W.3d 887, 893 (Mo. App. W.D. 2006). We evaluate whether the proffered instruction was supported by the evidence and the law. Id. An instruction must......
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