Mast v. Surgical Services of Sedalia, WD 60014.
| Decision Date | 28 March 2003 |
| Docket Number | No. WD 60014.,WD 60014. |
| Parties | James E. MAST, Jr., et al., Appellants, v. SURGICAL SERVICES OF SEDALIA, L.L.C., et al.; Stuart J. Braverman, M.D.; David H. Wuellner; and Sedalia Internal Medicine Specialists, P.C., Respondents. |
| Court | Missouri Court of Appeals |
Connie J. Clark, Osage Beach, MO, for Appellants.
D. Bruce Keplinger, Overland Park, KS, for respondents, Surgical Services of Sedalia, L.L.C. and Stuart J. Braverman.
John L. Roark, Columbia, MO, for respondents, Sedalia Internal Medicine Specialists, P.C., and David H. Wuellner.
Before JOSEPH M. ELLIS, Chief Judge, HAROLD L. LOWENSTEIN, ROBERT G. ULRICH, PATRICIA A. BRECKENRIDGE, PAUL M. SPINDEN, JAMES M. SMART, JR., EDWIN H. SMITH, VICTOR C. HOWARD, THOMAS H. NEWTON, RONALD R. HOLLIGER, and LISA WHITE HARDWICK, Judges.
In June 1997, Mrs. Shirley Mast was suffering from gastroesophageal reflux disease. Dr. Stuart Braverman was treating her and eventually performed a fundoplication surgery. In the two weeks following this surgery, Dr. Braverman performed two additional surgeries on Mrs. Mast in order to rectify complications that were seemingly a result of the initial surgery. After her third surgery, Dr. David Wuellner met with Mrs. Mast at Dr. Braverman's request for a consultation to evaluate and assist in her treatment. Mrs. Mast was then discharged from the hospital on August 7, 1997.
Further complications arose, and Mrs. Mast developed some abscesses. Mrs. Mast was hospitalized for this condition, and during this visit she was placed on total perineal nutrition (TPN), a means of delivering life-sustaining nutrition intravenously. On October 2, 1997, Mrs. Mast was again released from the hospital.
Following this hospitalization, Mrs. Mast experienced significant weight loss, losing fifty-three pounds between mid-October and December 12, 1997. In order to address her sudden weight loss, Dr. Braverman ordered that a barium swallow test and an endoscopy be performed on Mrs. Mast in January of 1998.
Because of her continued sickness, Dr. Braverman recommended that Mrs. Mast be evaluated at the University of Missouri Health Center on March 18, 1998. Mrs. Mast followed this recommendation and was subsequently hospitalized at the University Hospital on April 9, 1998, where she was once again placed on TPN.
On May 6, 1998, Mrs. Mast died at the hospital from medical complications. Appellants James E. Mast, husband, and the Estate of Shirley Mast, filed a petition seeking recovery for the wrongful death of Shirley Mast based upon the alleged medical negligence of respondents Stuart J. Braverman, M.D., Dr. Braverman's employer (Surgical Services of Sedalia, L.L.C.), David H. Wuellner, M.D., and Dr. Wuellner's employer (Sedalia Internal Medicine Specialists, P.C.). This petition alleged a cause of action for Shirley Mast's wrongful death and a claim by Mr. Mast for loss of consortium. This matter was tried by jury in the circuit court of Cooper County before the Honorable Ellen S. Roper. During the trial, Dr. Glennon Schaefer testified, offering the sole expert medical testimony in support of plaintiffs'/appellants' lawsuit. While testifying, Dr. Schaefer discussed Mrs. Mast's medical history and the events that occurred preceding her death. In preparation for testifying, Dr. Schaefer reviewed the medical records, which had been compiled during the course of Mrs. Mast's care. Dr. Schaefer testified that, based on his expert opinion, he believed that Mrs. Mast died as a result of malnourishment and that her death was caused by the medical negligence of Dr. Braverman and Dr. Wuellner. Dr. Schaefer stated that had Mrs. Mast been properly diagnosed as being malnourished, and then properly treated for this condition, she would not have died.
During his testimony, Dr. Schaefer discussed various types of treatment, which could have been used to insure Mrs. Mast was receiving adequate nourishment. One such method is total perineal nutrition ("TPN"). TPN, as mentioned earlier, nourishes the body by delivering nutrients intravenously. Other means of delivering nutrition, spoken of by Dr. Schaefer, are through an epigastrostomy tube (G tube) and a jejunostomy tube. The tube places food directly into the patient's stomach, where the patient then digests the food. This process, called enteral feeding, is preferable, Dr. Schaefer testified, because it is more natural and makes it possible for the patient to consume a wider variety of nutrients.
Additionally, Dr. Schaefer pointed to specific notations in Mrs. Mast's medical records that he believed should have alerted doctors that she was in need of such treatment. Specifically, Dr. Schaefer testified that by December 12, 1997, Mrs. Mast's medical records demonstrated that she had lost fifty-three pounds over two months. Additionally, Dr. Schaefer stated that the substantial decrease in Mrs. Mast's albumin levels1 should have also been an indicator of her serious need for additional medical treatment.
Accordingly, Dr. Schaefer stated that these aforementioned medical records should have caused an investigation as to why Mrs. Mast could not adequately nourish herself and, ultimately, should have prompted medical authorities to begin treatment for her malnourished condition. It was Dr. Schaefer's ultimate opinion that Mrs. Mast's death resulted from the failure to follow these procedures.
The trial court held its first jury instruction conference after plaintiffs rested their case in chief. At that time, plaintiffs elected to submit their case to the jury on a theory of wrongful death. During this conference, plaintiffs also submitted their proposed verdict director for respondents Dr. Braverman and Surgical Services of Sedalia, L.L.C. (marked as "A" by the court), and a proposed verdict director for Dr. Wuellner and Sedalia Internal Medical Specialists, P.C. (marked as "B" by the court). Both sets of defendants objected to plaintiffs' proposed instructions "A" and "B."
In the alternative, plaintiffs proposed instructions "C" (relating to Dr. Braverman) and "D" (relating to Dr. Wuellner). Again, both sets of defendants objected to these alternative sets of instructions. At that time, the trial court advised plaintiffs' attorney of its concerns with both sets of instructions. In fact, during this instruction conference, the court discussed, in its estimation, the substance of the verdict director that would be appropriate for this case. However, because the case had yet to be submitted to the jury (defendants' case in chief and plaintiffs' rebuttal had not yet been heard by the court), the court reserved a final ruling on these issues until all the evidence had been heard.
On the following day, plaintiffs recalled Dr. Schaefer for rebuttal testimony. During this testimony, Dr. Schaefer once again discussed the types of treatment that were available for Mrs. Mast's condition.
Following the close of the evidence in the case, the final jury instruction conference was held. During this instruction conference, the trial court ruled that plaintiffs' proposed jury instructions "A" through "D" were all denied. Alternatively, the trial court accepted the defendants' proposed verdict directors, Number 8 (Dr. Braverman) and Number 10 (Dr. Wuellner), over plaintiffs' objections. At that time, plaintiffs did not suggest any proposed language in those instructions regarding failure to diagnose malnutrition. The case was submitted to the jury. The jury returned a verdict in favor of all the defendants and against plaintiffs.
Appellants bring six points on appeal, with each point raising a jury instruction issue. Appellants' first four points contest the trial court's refusal to submit appellants' proposed verdict directors "A" through "D." Points Five and Six argue that the trial court erred in submitting the respondents' proposed verdict directors to the jury, Numbers 8 and 10.
On appellate review, a trial court's refusal to submit an instruction to the jury will not be disturbed absent a showing of an abuse of discretion. Hampton v. Jecman, 50 S.W.3d 897, 901 (Mo. App. W.D.2001). Even where error is found in a trial court's refusal to give an instruction, it is reversible error only if the refusal was prejudicial to the complaining party. Higby v. Wein, 996 S.W.2d 95, 97 (Mo.App. E.D.1999).
In considering the propriety of a proffered instruction, we view the evidence in the light most favorable to the submission of the instruction, keeping in mind that a party is entitled to an instruction on any theory supported by the evidence. Hampton, 50 S.W.3d at 901. However, jury instructions must be supported by substantial evidence. Deckard v. O'Reilly Auto., Inc., 31 S.W.3d 6, 17 (Mo.App. W.D. 2000). When an instruction provides for disjunctive alternatives, each alternative submitted must be supported by substantial evidence. Hampton, 50 S.W.3d at 901. If the evidence does not support each allegation presented in the instruction, the giving of the instruction is error. Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo.App. W.D.1994).
A. Dr. Braverman, the Surgical Services of Sedalia, and Instructions "A" and "C"
In submitting their proposed jury instructions, appellants first requested that instruction "A" be submitted in regard to Dr. Braverman. After this instruction was denied, instruction "C" was proposed as an alternative (which was also ultimately rejected by the trial court). These two jury instructions read as follows.
Your verdict must be for plaintiff James E. Mast Jr. for the survivors of Shirley Mast, against defendants, Stuart J. Braverman and Surgical Services of Sedalia, L.L.C., if you...
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