Nadolski v. Ahmed

• Decision Date: 15 June 2004
• Docket Number: No. WD 62527.,WD 62527.
• Citation: 142 S.W.3d 755
• Parties: Gary S. NADOLSKI and Patricia Elizabeth Nadolski, Respondents, v. Iftekhar AHMED, M.D., et al., Appellants.
• Court: Missouri Court of Appeals

142 S.W.3d 755

Gary S. NADOLSKI and Patricia Elizabeth Nadolski, Respondents, v. Iftekhar AHMED, M.D., et al., Appellants.

No. WD 62527.

Missouri Court of Appeals, Western District.

June 15, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2004.

Application for Transfer Denied September 28, 2004.

Appeal from the Circuit Court, Jackson County, Charles David Darnold, J Norman I. Reichel, Jr., Overland Park, KS, for Appellants.

Joseph W. Elliott, Saint Joseph, MO, for Respondents.

Before JOSEPH M. ELLIS, C.J., THOMAS H. NEWTON and LISA WHITE HARDWICK, JJ.

THOMAS H. NEWTON, Judge.

Dr. Gary S. Nadolski suffered hemorrhages after undergoing surgery to remove a malignant tumor in his brain. The post-surgery bleeding caused permanent brain damage. Dr. Nadolski and his wife brought an action against defendants for medical malpractice and loss of consortium. The Nadolskis (plaintiffs) contend that defendants negligently failed to diagnose Dr. Nadolski's brain tumor in a timely manner. They contend that by the time the tumor was discovered, its size and vascularity greatly complicated the task of removing it and that defendants' delay in diagnosing the tumor caused the brain bleed and accompanying injuries.

After denying defense motions for a directed verdict, the trial court submitted the case to the jury. The jury rendered a defense verdict. The plaintiffs filed a motion for new trial based upon claims of juror misconduct and the injection of collateral source evidence into the case. The trial court granted the motion for new trial. Defendants¹ now appeal. They contend that the trial court erred in denying their motions for directed verdict because plaintiffs failed to make a submissible case on the question of causation. They further contend that the trial court erred in granting the new trial.

We conclude that the plaintiffs presented sufficient evidence on the question of causation to make a submissible case based upon expert testimony that Dr. Nadolski's bleed would not have occurred but for defendants' failure to diagnose the tumor in a timely manner. We further conclude that the trial court appropriately granted the new trial based upon the juror's failure to disclose information during voir dire. Accordingly, we do not address the question of collateral source evidence.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dr. Nadolski experienced migraine headaches and vision problems during the late 1980s. After a severe episode in 1989, Dr. Nadolski went to the hospital for an MRI scan of his brain. At that time, the scan showed a marble-sized lesion on the brain. The doctors who saw Dr. Nadolski at that time—including Dr. Ahmed—diagnosed Dr. Nadolski with a complicated migraine leading to a stroke. A subsequent MRI scan administered in 1991 showed no significant change in the size of the lesion.

For the next eight years, Dr. Nadolski did not have any more MRI scans. Throughout the 1990s the symptoms persisted and worsened. When Dr. Nadolski saw Dr. Ahmed in April 1999, Dr. Ahmed recommended that Dr. Nadolski have another MRI scan. The scan showed that the lesion was approximately the size of a baseball. Based upon the results of this scan, Dr. Ahmed told Dr. Nadolski that he had a brain tumor. It was an anaplastic oligoastrocytoma—a very aggressive tumor—and it was growing rapidly.

In May 1999, neurosurgeon Dr. Robert Spetzler operated on Dr. Nadolski and successfully removed the tumor. After surgery, however, Dr. Nadolski suffered two bleeds in the brain. These bleeds left Dr. Nadolski with ongoing neurological and cognitive problems.

Defendants filed motions for directed verdict at the close of the Nadolskis' evidence and at the close of all the evidence. The trial court denied the motions and submitted the case to the jury. After the jury returned its verdict, the Nadolskis filed a motion for new trial, contending that defendants had improperly injected collateral source evidence into the case and contending that a juror had failed to disclose information requested of her during voir dire examination. Following an evidentiary hearing, the trial court granted the motion for new trial and said:

1. Defendant Dr. Iftekhar Ahmed and his counsel's injection of Plaintiffs' disability insurance into the trial during testimony and in closing argument was in flagrant disregard of this Court's order prohibiting same, was highly prejudicial and resulted in an unfair trial.

2. Juror [R] intentionally failed to disclose her and her husband's participation in prior litigation despite clear questioning on voir dire. It is clear that an ordinary lay person would reasonably have concluded that they should have disclosed that they or their family members had sued for a personal injury. The prior litigation was sufficiently significant and sufficiently related to the issues in Plaintiffs' case that the failure to disclose was prejudicial and resulted in an unfair trial.

Defendants raise three points on appeal. In their first point, defendants argue that the trial court should have granted their motions for directed verdict because the Nadolskis failed to make a submissible case on the question of causation. Defendants argue that, at most, the evidence only warranted submission of a claim for lost chance of recovery. In their second and third points, defendants contend that the trial court erred in granting the Nadolskis' motion for new trial on the collateral source and juror misconduct issues.

II. LEGAL ANALYSIS

A. Plaintiffs Made a Submissible Case on the Question of Causation

In their first point, defendants argue that the trial court should have granted their motion for directed verdict in this case because plaintiffs have failed to show that Dr. Nadolski's brain bleeds would not have occurred but for Dr. Ahmed's negligence.

1. Standard of Review

The unique posture of this case requires us to consider the standard of review in some detail. Although defendants obtained a verdict in their favor, they now complain that the trial court erred in overruling their motions for directed verdict at the close of the plaintiffs' evidence and at the close of all the evidence. Defendants argue that plaintiffs did not make a submissible case on the question of causation because the only witness who testified that Dr. Nadolski's bleed would not have occurred but for defendants' negligence was plaintiffs' expert witness, Dr. Barry Levin. But defendants argue that we must disregard Dr. Levin's testimony because our standard of review only permits us to examine the "evidence and reasonable inferences therefrom in the light most favorable to the jury's verdict, disregarding evidence to the contrary." Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 461 (Mo. banc 1998); see also, Harvey v. Washington, 95 S.W.3d 93, 96 (Mo. banc 2003) ("To determine whether plaintiff made a submissible case, this Court reviews the evidence in the light most favorable to the jury's verdict.").

It is true that this court ordinarily reviews the evidence in the light most favorable to the jury's verdict. See, e.g., Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). In this case, however, the prevailing defendants are complaining about the trial court's directed verdict rulings. This is anomalous. A claim of reversible error presupposes prejudice to the party complaining about the error. See, e.g., In re Estate of Pittman, 16 S.W.3d 639, 642 (Mo.App. W.D.2000) ("Only prejudicial error is reversible error."). What prejudice results from the trial court's directed verdict rulings when the defendants ultimately prevailed? The answer is none. Defendants have a reviewable point only if the trial court correctly granted plaintiffs' motion for new trial because in that situation defendants are no longer the prevailing parties. But at that point there is also no longer a jury verdict to which we must defer because the grant of a new trial has the effect of removing the judgment. See State ex rel. Mather v. Carnes, 551 S.W.2d 272, 279 (Mo.App.1977).

As discussed infra, in section II-B, we conclude that the trial court properly granted plaintiffs' motion for new trial. Thus, we review the evidence to determine whether or not the plaintiffs introduced substantial evidence that tends to prove the facts essential to recovery. Schaffer v. Bess, 822 S.W.2d 871, 876 (Mo.App. E.D.1991). We review the evidence in the light most favorable to the plaintiffs, giving them the benefit of all reasonable inferences, and disregarding the defendants' evidence except as it aids the plaintiffs' case. Id.; see also Uptergrove v. Hous. Auth. of Lawson, 935 S.W.2d 649, 651 (Mo.App. W.D.1996) ("The reviewing court's determination is made by disregarding the evidence submitted by the defendant and viewing the remaining evidence in the light most favorable to the plaintiff."). "If reasonable minds can draw different conclusions from the facts, causation questions are for the jury, and a directed verdict is not proper." Schaffer, 822 S.W.2d at 876.

2. Causation in Fact

"To make a submissible case in a medical malpractice action, the plaintiff must prove that the defendant failed to use the degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant's profession and that his negligent act or acts caused the plaintiff's injury." Coon v. Dryden, 46 S.W.3d 81, 90 (Mo.App. W.D.2001).

Defendants argue that plaintiffs failed to make a submissible case here because they failed to establish causation in fact. To establish causation in fact, the plaintiff must show that his injury would not have occurred but for the defendant's negligence. Id. "Proof of causation in a medical malpractice case requires expert medical testimony when there is a sophisticated injury, requiring surgical intervention or other highly scientific technique for diagnosis." Id. (internal quotation marks and citations...