McKinley v. Vize

• Decision Date: 21 February 1978
• Docket Number: No. 38185,38185
• Citation: 563 S.W.2d 505
• Parties: Daniel G. McKINLEY and Clara E. McKinley, Respondents, v. J. L. VIZE, Jr., D. D. S., Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 505

563 S.W.2d 505

Daniel G. McKINLEY and Clara E. McKinley, Respondents, v. J. L. VIZE, Jr., D. D. S., Appellant.

No. 38185.

Missouri Court of Appeals, St. Louis District, Division Four.

Feb. 21, 1978.

George E. Lee, Doris J. Banta, Barnard & Bear, St. Louis, for appellant.

Robert Lee Smith, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for respondents.

ALDEN A. STOCKARD, Special Judge.

Daniel G. McKinley, Jr., eighteen years of age, died on July 29, 1970, in an operating room at Rockwood Hospital in St. Louis County immediately following the extraction of two wisdom teeth. This action for wrongful death was brought by his parents against the dentist, the nurse-anesthetist and the operator of the hospital. Settlements were effected during trial with the hospital operator and the nurse-anesthetist. The trial proceeded against the dentist alone and resulted in a verdict for plaintiffs in the amount of $28,000. The defendant dentist has appealed. We affirm.

Daniel had been a regular patient of appellant since 1963. On July 13, 1970, appellant took x-rays and discovered that Daniel had two impacted wisdom teeth, which in his opinion should be removed, and arrangements were made to have that done at the Rockwood Hospital.

Daniel had a history of asthma in his childhood and some allergic symptoms continued. Appellant testified that he did not know Daniel had asthma, but his mother testified that when she first took him to appellant in 1963 she "told him then that (he) had childhood asthma," and that on a later occasion when appellant extracted some teeth for Daniel she "reminded him again that (he) had asthma."

Dr. Ecker, Daniel's personal physician, examined him prior to the dental surgery because the hospital required a pre-operative physical examination. In a letter to appellant Dr. Ecker stated that Daniel was in good health. " No mention was made of any allergy or asthma problem. The record of Dr. Ecker's examination contained the entry "no asthmatic breathing. " However, Dr. Ecker testified by deposition that in 1963 Daniel "definitely (had) asthma" and that he treated him for asthma in 1966 and again in 1967.

Daniel was admitted to Rockwood Hospital on July 28, 1970. Blood and urine tests were performed and a history was taken by the house doctor. An entry made at that time on what was referred to as "Progress Notes" showed "history of childhood asthma," but apparently this was not a part of Daniel's medical chart and neither the anesthetist nor appellant saw this entry prior to the surgery.

The anesthetist talked to Daniel when he was brought to the operating room. She asked if he was allergic to anything, if he had been taking medicine before coming to the hospital, and if he had any heart problems. When she first saw him Daniel was lying on a stretcher. He seemed calm, but was breathing rapidly. She testified that his blood pressure was elevated somewhat, but not significantly. She observed nothing which would cause her to suggest that the operation be called off.

The anesthetist also testified that she considered using Innovar or Flourtheine as the main anesthetic agent, and that she decided to use Innovar. She further testified that the "narcotic portion" of Innovar acts as a "bronchial constrictor somewhat," while Flourtheine "dilates the bronchials," and that if a person has a history of asthma "Flourtheine would be the drug of choice" to use. She further stated that she did not know that Daniel had a history of asthma, that appellant did not advise her that he had any such condition, and that if she had known he had asthma she would have used Flourtheine.

The extraction went smoothly and both wisdom teeth were removed. The anesthetist testified that she monitored Daniel's pulse and blood pressure throughout the procedure and they remained normal. Appellant told the anesthetist that he was finished. He then removed some throat packing, washed up at the sink, took the chart and walked to a table outside the room and began to write on the chart. He immediately returned to the operating room when he heard something said about Daniel not looking good. The anesthetist said she could not get a pulse, and appellant sent his assistant for a doctor. Two doctors came in and administered some drugs and applied external cardiac massage, but without success.

It is not disputed that the immediate cause of Daniel's death was cardiac arrest. Plaintiff called as a witness Dr. Barnett A. Green, a medical doctor, who, after being qualified as an expert and a specialist in the field of anesthesiology, was permitted to testify that in his opinion the cause of the cardiac arrest was "lack of sufficient oxygen," a condition known as hypoxia, and that the cause of the hypoxia was "inadequate dilation of the lungs" so that "when the blood left the lungs and started to circulate out of the lungs to the rest of the body it was carrying too little oxygen." He was also permitted to testify that in his opinion Daniel's lungs could not adequately ventilate or expand to deliver the oxygen through the respiratory tract because "bronchial spasm undoubtedly was present restricting the amount of oxygen going into this patient," and that the bronchial spasm was the result of a "combination of * * * (Daniel's) asthmatic reactivity and * * * the Innovar to which he was exposed which is a stimulus to bronchi spasm * * *."

Appellant asserts that the trial court erred in permitting Dr. Green to give an opinion "as to the cause of (Daniel's) death because there was insufficient evidence to support his opinion and his opinion was plainly founded upon speculation." Before examining this contention we should set forth the basic theory which permits the admission into evidence of an opinion of an expert witness.

As an exception to the general rule that a witness may not express an opinion, an expert witness may do so when qualified as such and when the subject matter of the opinion is not of common knowledge so that the opinion of an expert witness would be helpful to the jury in the determination of the issues before it. Schears v. Missouri Pacific Railroad Company, 355 S.W.2d 314, 321 (Mo. banc 1962). Such opinion must be based on facts established by competent evidence, Craddock v. Greenberg Mercantile, Inc., 297 S.W.2d 541 (Mo.1957), and when the expert witness does not have personal knowledge of those facts, that is, the evidence of those facts was not established by the testimony of the expert witness, the witness must be asked by use of the hypothetical question to assume the truth of the facts, particularly when disputed. Hyman v. Great Atlantic & Pacific Tea Co., 359 Mo. 1097, 225 S.W.2d 734 (1949).

Dr. Green was submitted a hypothetical question in which he was asked to assume, among other things, that Daniel was 18 years of age and had a history of asthma as a child and that he later displayed symptoms when excited or frightened of rapid breathing, gasping and sometimes wheezing, but that he was otherwise in good health; that x-rays disclosed he had two impacted wisdom teeth which appellant advised to have removed by surgery under general anesthesia; that Daniel was admitted to Rockwood Hospital on July 28, 1970, and the next morning was given 2cc of Innovar; that no one who participated in the surgery visited him in his room before he was taken to surgery; that he was frightened and was having labored breathing; that an anesthetic procedure was performed "as shown by the chart" (which was in evidence); and that "during this anesthetic procedure a cardiac arrest occurred and that drugs were administered as shown on that chart." The doctor was then asked: "considering these things, can you say with a reasonable degree of medical certainty what was the cause of (Daniel's) cardiac arrest." Dr. Green answered that he could, and that the cause was "Lack of sufficient oxygen to enable the heart to function as a pump." Then based upon the same hypotheses the doctor expressed the additional opinions we have previously set forth.

In the argument portion of his brief appellant states that Dr. Green expressed the opinion that the cardiac arrest was caused by lack of oxygen, that the cause of the lack of oxygen was inadequate dilation of his lungs, and that the lungs did not adequately dilate or ventilate because of bronchial spasm. Appellant argues that Dr. Green "made it quite plain" that he based his opinion that Daniel's bronchi was in spasm or contracted upon the fact that the "anesthetist gave Anectine in a dosage that he considered excessive and that he assumed that the reason for this Anectine dosage was that the anesthetist was 'trying to get oxygen in and she couldn't.' " He then argues that there was no evidence to support the assumption "that the anesthetist was trying to get oxygen and couldn't or the assumption that she gave additional Anectine toward the end of the procedure because she was having a problem delivering oxygen" to Daniel. A summary of other testimony of Dr. Green on the cause of the cardiac arrest will be helpful.

Dr. Green first expressed the opinion that Daniel had what he called Grade I asthma. He described this as being "mild," and he based his opinion on Daniel's history of asthma and labored breathing, sometimes with wheezing when excited. He then stated that at the time of the surgery the fact that his blood test showed eosinophil 8 (which he said was "grossly abnormal" and is found in people who are allergic), that he was "extremely frightened" as shown on the anesthetic chart, that his breathing was labored, as testified to by his mother, and that his blood pressure was high and his pulse was fast, as revealed by the chart, indicated to him that "an allergic state was still going on." The doctor testified that the administration of Innovar caused a constrictive action upon the bronchial tubes, and because of this the lungs "could not adequately inventilate or expand...