Mercer v. Thornton

• Decision Date: 07 January 1983
• Docket Number: No. 12543,12543
• Citation: Mercer v. Thornton, 646 S.W.2d 375 (Mo. App. 1983)
• Parties: Carol MERCER and Jackie M. Mercer, Plaintiffs-Appellants, v. F.H. THORNTON, M.D., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 375

646 S.W.2d 375

Carol MERCER and Jackie M. Mercer, Plaintiffs-Appellants, v.F.H. THORNTON, M.D., Defendant-Respondent.

No. 12543.

Missouri Court of Appeals,

Southern District,

Division Three.

Jan. 7, 1983.

Motion for Rehearing or to Transfer to

Supreme Court Overruled

Jan. 31, 1983.

James C. Bullard, Kennett, for plaintiffs-appellants.

John L. Oliver, Jr., Oliver, Oliver, Waltz & Cook, Cape Girardeau, Manuel Drumm, Sikeston, for defendant-respondent.

GREENE, Chief Judge.

Plaintiffs, Carol and Jackie Mercer, sued Dr. Fred H. Thornton charging him with negligence (medical malpractice) in his care and treatment of Carol Mercer during and following a gastric bypass procedure resulting in injury and damages to plaintiffs.At the conclusion of plaintiffs' evidence, presented to a jury, the trial court directed a verdict in favor of Thornton, and entered judgment in his favor.

The Mercers raise several issues on appeal, including the contention that their evidence made a submissible case against Dr. Thornton.We agree with that contention and reverse and remand.

Whether the evidence is substantial enough to justify submission of a case to a jury is a question of law for the trial court.Odum v. Cejas, 510 S.W.2d 218, 225(Mo.App.1974).A motion for directed verdict for a defendant should only be granted when no issues of fact remain for the jury to decide.Teachenor v. DePriest, 600 S.W.2d 122, 124(Mo.App.1980).The sustaining of such a motion, at the close of plaintiffs' evidence, is a drastic action which should only be done when all of the plaintiffs' evidence, and the reasonable inferences to be drawn therefrom, are so strongly against plaintiffs that there is no room for reasonable minds to differ.McCarthy v. Wulff, 452 S.W.2d 164, 168(Mo.1970);Teachenor v. DePriest, supra.

In determining whether a submissible case was made, we view the evidence in the light most favorable to plaintiffs, giving them the benefit of all reasonable and favorable inferences.Woosley v. State Automobile Mutual Insurance Co., 600 S.W.2d 210, 213(Mo.App.1980).The Mercers had the burden of showing that negligence of Dr. Thornton caused injury and damage to them.Swope v. Printz, 468 S.W.2d 34, 39(Mo.1971).No presumption of negligence exists merely because of a bad result after surgery or treatment.Odum v. Cejas, supra510 S.W.2d at 221.Conjecture and surmise are not sufficient criteria to justify the submission of a medical malpractice case to a jury.Swope v. Printz, supra at 40.Keeping these rules of law in mind, we review plaintiffs' contentions that they made a "paper case" of negligence in that Dr. Thornton failed to promptly diagnose a perforation of Carol's stomach after he performed a gastric bypass operation in 1979 on her, that he failed to refer Carol to a specialist or consult with a specialist after she developed complications following the gastric bypass surgery, and that such acts or omissions caused Mrs. Mercer's subsequent damages.¹

Both of the negligence allegations required the support of expert medical testimony because more than common knowledge and experience would be required to understand whether such acts or omissions were negligent.SeeHart v. Steele, 416 S.W.2d 927, 931-933(Mo.1967), andFisher v. Wilkinson, 382 S.W.2d 627, 632(Mo.1964).We, therefore, consider the testimony of Carol Mercer, her husband, Jackie, and Dr. Charles Chastain, plaintiffs' non-treating medical witness.We also consider questions and answers from the deposition of Dr. Thornton which were admitted into evidence as admissions against interest, and those portions of the deposition of Dr. Lawrence Wruble, who treated Carol Mercer after she ceased being Dr. Thornton's patient, that were admitted in evidence and are contained in the record.

Carol Mercer testified that she was referred by another doctor to see Dr. Thornton for gallbladder surgery.Carol, weighing almost 250 pounds, also consulted with Thornton, a board certified abdominal surgeon, concerning a surgical technique for treatment of obesity known as a gastric bypass.This technique consists of implanting a row of staples across the upper part of the stomach, segmenting that portion from the rest of the stomach, thus limiting the area available for ingested food.

Dr. Thornton explained the gastric bypass procedure to Carol and her husband, gave them articles to read concerning the surgery, and advised them that the procedure was elective.With this knowledge and understanding, Carol was admitted to the Missouri Delta Community Hospital on October 31, 1977, for surgery.

On November 2, 1977, Dr. Thornton removed Carol's gallbladder and performed the gastric bypass.During the next 12-15 months, Carol did very well.She lost weight and resumed her normal activities.In the spring of 1979, Carol's appetite increased and she began to gain weight.She advised Dr. Thornton of this and he x-rayed her stomach.The x-rays revealed that part of Carol's stomach had pulled loose from the staples, permitting food to enter the entire stomach.Carol requested that Dr. Thornton perform a second operation to close the opening.This surgery was performed on July 11, 1979.Sutures, as well as additional staples were inserted to close the opening, according to Dr. Thornton's testimony.

Mrs. Mercer stated that when she awoke from the anesthetic after the second surgery, she experienced severe right shoulder pain.An electronic device and medication were used to ease the pain.Carol remembered Dr. Thornton using a large needle to take a sample of pus out of her right shoulder, remembered someone making an abscess drainage hole in her abdominal wall larger, and knew that she was in the hospital for 69 days, from July to mid-September in 1979.She did not remember having her 12th rib taken out.When Carol went home in mid-September, she still had a drainage hole in her stomach, and ingested food or drink would come out of that hole.She showed Dr. Thornton this problem and was readmitted to the hospital for another surgery to close the drainage hole.Carol could not recall if a gastric perforation was closed.

Carol was discharged from the hospital at the end of October 1979.Her legs ached and she was throwing up white phlegm.After her last consultation with Dr. Thornton in December 1979, Carol saw Dr. Lawrence Wruble, a gastroenterology specialist in Memphis, Tennessee.Dr. Wruble admitted Carol to the Baptist Memorial Hospital in Memphis for 12 days.Despite improvement...