Niccoli v. Thompson

• Citation: 713 S.W.2d 579
• Decision Date: 15 July 1986
• Docket Number: No. WD,WD
• Parties: 34 Ed. Law Rep. 324 Shirley J. NICCOLI, Plaintiff/Respondents v. Dannie M. THOMPSON, M.D., 1 et al., Defendants/Appellants.36786.
• Court: Missouri Court of Appeals

Page 579

713 S.W.2d 579

34 Ed. Law Rep. 324

Shirley J. NICCOLI, Plaintiff/Respondents v. Dannie M. THOMPSON, M.D., ¹ et al.,

Defendants/Appellants.

No. WD 36786.

Missouri Court of Appeals,

Western District.

July 15, 1986.

Willard Bunch, Elisabeth Sauer and Brian B. Myers (Campbell, Morgan & Gibson, J. Scott Bertram, Kansas City, of counsel), for plaintiff/respondent.

Edward H. Sheppard, Marilyn W. Pesto and James T. Seigfreid, Jr. (Baker & Sterchi, Kansas City, of counsel), for defendant/appellants.

Before PRITCHARD, P.J., SHANGLER, J., and BRUCE NORMILE, Special Judge.

BRUCE NORMILE, Special Judge.

This is a medical malpractice case.

One count of the petition alleged the performance of a wrongful vulvectomy upon plaintiff in March, 1982. On this count the jury found its Verdict A in favor of plaintiff/respondent, Shirley J. Niccoli, and against defendants/appellants, Robert E. Arnold, D.O., the surgeon, and The University of Health Sciences, his employer, and assessed plaintiff's damages at $5,000.00. However, on this count by its Verdict A, the jury found against plaintiff and in favor of defendant/appellant, Raymond Hall, D.O., a consulting oncologist, and the University, also his employer.

Another count of the petition alleged a wrongful oopherectomy by Dr. Arnold in March, 1983. On this count the jury found its Verdict B against plaintiff and in favor of defendants/appellants, Dr. Arnold and the University.

The trial court granted plaintiff's Motion for New Trial against all defendants and they appeal. Since both physicians were employees of the University, its liability will follow that of the physicians and the case will be discussed by primary reference to the physicians.

VULVECTOMY CLAIM AGAINST DR. ARNOLD

In sustaining plaintiff's Motion for New Trial against Dr. Arnold and the University, the trial court found that the jury's award of $5,000.00 was "so grossly inadequate and against the weight of the evidence as to show bias, passion and prejudice on the part of the jury for the reason that the uncontroverted evidence at trial established that (a) Plaintiff was hospitalized for over five weeks and incurred over $19,500.00 of medical expenses as a result of her vulvectomy, (b) the vulvectomy involved the complete surgical removal of Plaintiff's vulva and clitoris, (c) the vulvectomy caused Plaintiff to suffer pain and mental anguish, (d) the vulvectomy resulted in scarring and disfigurement."

Defendants Arnold and the University first assert that the trial court's order was arbitrary and capricious because the "uncontroverted facts" enumerated by the trial court were in reality vigorously contested at trial. Their brief argues the evidence and its weight on each of the points. However, the trial court's reference to the "uncontroverted facts" was nothing more than its effort to explain to the parties and their attorneys why the court ruled that the verdicts were against the weight of the evidence. The trial court is not required to set forth its reasons for that conclusion or the process by which it made that determination. Even when a trial court gives "obscure, incorrect or erroneous reasons for its order granting a new trial on the ground that the verdict was against the weight of the evidence, the decision is conclusively presumed to have been made on that ground." Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, 300[10, 11] (1951); Resco Construction Co. v. Dawson Cabinet Co., 656 S.W.2d 324, 327 (Mo.App.1983).

Appellants cite various cases relating to the trial court's discretion in granting new trials for inadequacy for damages. See, e.g., Kirst v. Clarkson Construction Co., 395 S.W.2d 487 (Mo.App.1965). However, in all the cited cases, the trial court did not find inadequacy of damages and motions for new trials were denied. That is not the case here and the review is somewhat different. Hussey v. Kaiser, 670 S.W.2d 208, 209-210 (Mo.App.1984). An appellate court is also more liberal in upholding the grant of a new trial than it is in reversing a denial of a new trial. Whiting v. United Farm Agency, Inc., 628 S.W.2d 407, 409 (Mo.App.1982); Oventrop v. Bi-State Development Agency, 521 S.W.2d 488[1-4] (Mo.App.1975).

Rule 78.02, of the Missouri Rules of Civil Procedure, provides that one new trial may be allowed "on the ground that the verdict is against the weight of the evidence". An order granting a new trial because of an inadequate verdict is tantamount to a ruling that the verdict is against the weight of the evidence. Hussey v. Kaiser, supra. The trial court is vested with an inherent and broad discretion in ordering a new trial on the ground of inadequacy of the verdict. Boehmer v. Boggiano, 412 S.W.2d 103, 110[7-10] (Mo.1967). If the trial judge believes that the jury's verdict is against the weight of the evidence, he has the duty to direct the entry of an order granting a new trial. State v. Belvidere Development Co., 315 S.W.2d 781, 784[2-4] (Mo.1958). The general rule is that an appellate court will not interfere with the grant of a new trial on this ground, Follman Properties Co. v. Henty Construction Co., 664 S.W.2d 248, 251[4-5] (Mo.App.1983), because the trial court has a unique opportunity to view and judge the actual presentation of evidence and evaluate the many trial intangibles not discernible from the lifeless record. Kammerer v. Cella, 585 S.W.2d 552, 554-555 (Mo.App.1979); Stark v. St. Louis Public Service Co., 211 S.W.2d 500, 504 (Mo.App.1948). Thus, the trial court may consider the credibility of witnesses and may weight the evidence. Homeyer v. Wyandotte Chemical Corp., 421 S.W.2d 306, 309[1-3] (Mo.1967); Slusher v. United Electric Coal Companies, 456 S.W.2d 339, 340[1-4] (Mo.1970); Resco Construction Co. v. Dawson Cabinet Co., 656 S.W.2d 324, 326[2-5] (Mo.App.1983).

However, unlike the trial court, an appellate court may not pass on the weight of the evidence: State ex rel. Highway Commission v. Eilers, 406 S.W.2d 567, 575[16-19] (Mo.1966); Mitchell v. Mosher, 362 S.W.2d 532 (Mo.1962). The appellate court will not interfere with the trial court's discretionary action in such cases "unless the abuse of that discretion appears manifest". Hufft v. Kuhn, 277 S.W.2d 552, 554 (Mo.1955).

The question on appellate review is not whether there was evidence to support the adequacy of the verdict, but whether there was evidence to support the judgment of the trial court that the verdict was inadequate. Slusher v. United Electric Coal Companies, supra. There is no abuse of discretion where there is substantial evidence to support the trial court's action in granting a new trial. Underwood v. Brockmeyer, 318 S.W.2d 192, 194 (Mo.1958); Hussey v. Kaiser, supra; Foster v. Rosetta, 443 S.W.2d 183, 185[1-3] (Mo. 1969); Millar v. Burg, 316 S.W.2d 499 (Mo.1958); City of St. Charles v. De Sherlia, 308 S.W.2d 456, 459 (Mo.App.1957).

In determining whether there was substantial evidence in this case to support the trial court's action in granting plaintiff a new trial on the basis of inadequacy of damages, every reasonable inference favorable to the trial court's ruling must be indulged. Farley v. Johnny Londoff Chevrolet, Inc., 673 S.W.2d 800, 803 (Mo.App.1984); and only the evidence which would have supported a larger verdict may be considered. Crabtree v. Reed, 494 S.W.2d 42, 44 (Mo.1973). Some of the evidence favorable to the trial court's order is detailed hereafter.

Plaintiff was a 35 year old female who had left school in the eighth grade and essentially could not read or write. In March, 1982, she entered University of Health Sciences Hospital "to get her bladder fixed" because of urinary incontinence. She also had a sore on her clitoris which she thought was due to the loss of urine. The original diagnosis was "urinary infection, cystitis".

Because a pathological report indicated that plaintiff might have squamous cell carcinoma, she was referred to Dr. Arnold, a surgeon, for evaluation. A biopsy confirmed existence of a "squamous cell carcinoma in situ" which was described by one physician as a pre-cancerous condition which was not life threatening. Dr. Arnold thereafter obtained a consultation from Dr. Hall, an oncologist (cancer specialist). Dr. Hall recommended that plaintiff should have a "wide simple vulvectomy with excision of the clitoris". A simple (which in medical terms means "total") vulvectomy is the complete removal of a woman's vulva, including the labia majora and labia minora, all of that tissue that provides the sensation of the vulva or sexual response, and all vulvar structures, as well as the subjacent fat.

Dr. Arnold told plaintiff only that he intended to do some "corrective surgery" and "fix" her bladder. He did not advise her that he was going to perform a vulvectomy or that there were alternative, less radical and non-disfiguring methods of treatment. He did not advise her that she had carcinoma or cancer until after the vulvectomy was performed. There was substantial medical evidence that there were alternative methods of treatment and that a vulvectomy was not necessary or appropriate. There was substantial medical testimony that Dr. Arnold was negligent in performing such an operation under the facts and was negligent in failing to obtain an informed consent from the plaintiff.

After the operation, plaintiff woke up screaming. She described the pain as "outrageous", like "bacon sizzling in the skillet". She was in "severe agonizing hell" for six or seven days before the pain began to ease. She was hospitalized for 25 days after the surgery. There was other substantial evidence as to her pain, indignities and medication. At the time of her trial 2- 1/2 years later in December, 1984, plaintiff still had "terrible" pain in her vaginal area that felt like she was "on fire". She would wake up in the middle of the night screaming. Dr. Arnold described the surgery as a "big disfiguring operation". Her medical bills relating to the...