Ostrander v. O'Banion

• Decision Date: 05 October 2004
• Docket Number: No. WD 62548.,WD 62548.
• Citation: 152 S.W.3d 333
• Parties: Pamela OSTRANDER, Respondent, v. Jerry K. O'BANION, D.O., Appellant.
• Court: Missouri Court of Appeals

152 S.W.3d 333

Pamela OSTRANDER, Respondent, v. Jerry K. O'BANION, D.O., Appellant.

No. WD 62548.

Missouri Court of Appeals, Western District.

October 5, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 23, 2004.

Application for Transfer Denied January 25, 2005.

Susan Ford Robertson, Columbia, for Appellant.

Lee Harrison Bushie, Rolla, for Respondent.

RONALD R. HOLLIGER, Presiding Judge.

Dr. Jerry O'Banion appeals the judgment following a jury verdict in favor of Pamela Ostrander on her claim of medical negligence in the performance of a laparoscopic cholecystectomy, or gallbladder removal surgery. As a result of this surgery, she experienced a complication that required two more surgeries to correct. Dr. O'Banion appeals claiming that the plaintiff's verdict directing instruction was erroneous because it did not submit an ultimate fact necessary to establish the specific theory of negligence and was a roving commission. We disagree and find that the verdict director accurately presented the issues to be determined by the jury.

Facts and Procedural History

During the spring of 1999, Pamela Ostrander began experiencing prolonged pain in her right side. Upon referral by her family doctor, she visited Dr. O'Banion for an examination. As a result Dr. O'Banion performed a laparoscopic cholecystectomy (gallbladder removal). The surgical procedure is conducted by making four small incisions in the patient's abdomen through which the surgeon inserts a camera and the necessary operating tools. The surgeon, then, observes the operating field by way of a monitor.

The cystic duct and cystic artery are connected to the gallbladder and must be occluded with hemoclips, which are like staples, before the gallbladder can be removed. The cystic duct joins the common hepatic duct, also known as the common bile duct, which carries bile from the liver to the small intestines. After the surgery Mrs. Ostrander experienced severe pain in her right side and noticed a discoloration of her hands and face. Dr. O'Banion referred her to Dr. Ward, a gastroenterology specialist. Dr. Ward performed an endoscopic retrograde cholangiopancreatography, or ERCP, which found a blockage of the common bile duct. He then injected dye into the ducts in order to obtain an x-ray of the flow within the ducts. The x-ray showed what Dr. Ward interpreted to be a ninety percent blockage in the flow of the common bile duct. He placed a stent in the duct, which almost immediately alleviated the pain. Such stents are prone to blockage, however, and Mrs. Ostrander had to undergo three more stent replacements.

After the third replacement, she continued to have pain and decided to undergo another surgery, as a more permanent solution to correct the flow of bile into her small intestines. This surgery carried a greater likelihood of complications than the laparoscopic cholecystectomy, and, even now that several years have passed since the surgery, there remains a slight possibility that Mrs. Ostrander will experience a stricture that could, once again, obstruct her bile flow. She has already experienced one complication when a knot formed and burst along her incision due to infection. A surgery was required to clear up the infection.

The testimony of all of the doctors at trial was that the obstruction to Mrs. Ostrander's bile duct was caused by one of the hemoclips used to effect the removal of her gallbladder during the original surgery. Although there was contradictory expert testimony at trial as to why and how this hemoclip was misplaced, it was undisputed that the hemoclip was the cause of the obstruction.

Standard of Review

Whether a jury was properly instructed is a question of law and, as such, is reviewed de novo on appeal. Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003) (citing Kuzuf v. Gebhardt, 602 S.W.2d 446, 449 (Mo. banc 1980)). We will, however, view the evidence in the light most favorable to the submission of the instruction and disregard all contrary evidence and inferences. Wright v. Barr, 62 S.W.3d 509, 526 (Mo.App.2001).

Discussion

The challenged verdict director provided:

Your verdict must be for the plaintiff if you believe:

First, defendant placed a surgical clip in a position that extended partially across the common hepatic bile duct of plaintiff; and

Second, defendant was thereby negligent; and

Third, as a direct result of such negligence, plaintiff sustained damage.

Dr. O'Banion claims that the verdict director failed to submit a disputed, ultimate fact that defined the plaintiff's specific theory of negligence. Dr. O'Banion argues that Mrs. Ostrander chose to present evidence on the theory that he negligently placed the hemoclip across the common bile duct because he either misidentified the common bile duct as the cystic duct or failed to properly visualize the ducts. He further states that he admitted the hemoclip was "partially across" the common bile duct but that this was not the ultimate issue for the jury's determination. Mrs. Ostrander counters that she actually presented a theory of negligence that allowed the jury to find Dr. O'Banion acted negligently without ever having to decide why or how the hemoclip came to be placed in a manner that blocked the flow of bile within the common bile duct.

"The purpose of the verdict directing instruction is to hypothesize propositions of fact to be found or rejected by the jury." Lasky v. Union Elec. Co., 936 S.W.2d 797, 800 (Mo. banc 1997) (citation omitted). Such an instruction must hypothesize to the jury all ultimate facts necessary to sustain the verdict, Coon v. Dryden, 46 S.W.3d 81, 93 (Mo.App.2001), and must not assume a disputed fact, Harvey, 95 S.W.3d at 97. Which facts are ultimate facts must be determined on a case-by-case basis. Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 658 (Mo.App.1999). This decision depends on the specific theory of negligence presented by the plaintiff. Id.

Mrs. Ostrander presented the expert testimony of two doctors in order to establish the standard of care required of Dr. O'Banion in performing the laparoscopic cholecystectomy. While at least one of the doctors did state that he believed Dr. O'Banion misidentified the common bile duct as the cystic duct, he also testified:

Q. I want to make sure I understand. Doctor, allowing a surgical clip to be placed on the common duct or partially on the common duct, is that always beneath the standard of care?

A. Yes.

Q. Does it matter as to why a surgeon would make that mistake, in forming your opinion?

A. No.

Mrs. Ostrander's other expert witness responded when asked whether he believed Dr. O'Banion violated the standard of care in this case:

A. My opinion [is] that he did perform below the standard of care by placing a hemoclip or clips across a structure, either the cystic duct or the cystic artery, so that it at least partially occluded the hepatic duct and so that there was an obstruction of that duct causing jaundice and other complications.

Dr. O'Banion relies on the testimony of his two experts, who agreed that the hemoclip occluded the hepatic duct but who believed the hemoclip was misplaced due to a phenomenon called tenting. Tenting occurs when the manipulation of the gallbladder necessary to carry out its removal results in the common bile duct being drawn up under the cystic duct. In their view, this could occur without negligence and Dr. O'Banion did not fail to identify or misidentify the common bile duct.

Dr. O'Banion asserts this testimony as a basis for his argument that whether he misidentified the common bile duct as the cystic duct was an ultimate fact and should have been included in the verdict director. Dr. O'Banion's specific complaint is that the verdict director should have required the jury to find that the doctor either failed to identify or misidentified the biliary anatomy before he placed the surgical clips partially across the common bile duct.

O'Banion argues that the failure to submit the issue in this manner enabled the jury to find for Mrs. Ostrander by virtue of the adverse result because the instruction, as given, did not submit the act or omission complained of as required by M.A.I. 21.01. The effect of this erroneous instruction, says Dr. O'Banion, was that the jury was given a roving commission because the verdict director assumed the disputed fact of whether the doctor failed to identify or misidentified the common bile duct. Dr. O'Banion is correct that he and his expert disputed whether the doctor failed to identify or misidentified the duct. Not all disputed facts are to be submitted to the jury, however. Only disputed ultimate facts are presented to the jury, as opposed to evidentiary facts.

The purpose of this distinction is to "avoid undue emphasis of certain evidence, confusion, and the danger of favoring one party over another." Schiles v. Schaefer, 710 S.W.2d 254, 265 (Mo.App.1986). This statement of purpose, however, provides little aid in determining whether a disputed evidentiary fact is also an ultimate fact that is to be included in an instruction. Despite no lack of effort by the courts and commentators, it has not been possible "to fashion precise, universally applicable definitions which explicitly differentiate evidentiary facts from ultimate facts." Id. (quoting Grindstaff v. Tygett, 655 S.W.2d 70, 73 (Mo.App.1983)).

Thus we are forced to make the distinction on a case-by-case basis, guided only by the general principles stated above and the holdings of other cases as to whether or not a particular submission was or was not an ultimate fact (that has to be submitted) or an evidentiary fact (that does not need to be and should not be submitted). Id. Dr. O'Banion cites Grindstaff in support of his argument. There, the verdict directing instruction submitted as the act of negligence whether "defendant performed a midforceps rotation delivery when such procedure was...