Portis v. Greenhaw, M.D.

• Decision Date: 09 January 2001
• Citation: 38 S.W.3d 436
• Parties: (Mo.App. W.D. 2001) . David Portis, Respondent, v. James Greenhaw, M.D., Appellant, Community Hospital Association, Inc., Defendant. WD58048 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

38 S.W.3d 436 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

David Portis, Respondent, v.James Greenhaw, M.D., Appellant, Community Hospital Association, Inc., Defendant.

WD58048

Missouri Court of Appeals Western District

Handdown Date: 01/09/2001

Appeal From: Circuit Court of Worth County, Hon. John C. Andrews

Counsel for Appellant: D. Bruce Keplinger

Counsel for Respondent: Robert E. Murphy

Opinion Summary: Decedent/patient Donna Portis' husband brought suit against radiologist Dr. James Greenhaw, alleging he misdiagnosed cancer in Donna, which resulted in a chemotherapy treatment plan that caused her death.The jury decided in favor of the husband and awarded damages.

AFFIRMED.

Court holds:

(no summary provided)

Opinion Author: Thomas H. Newton, Judge

Opinion Vote: AFFIRMED.Lowenstein, P.J., and Denvir Stith, J., concur.

Opinion:

Donna Portis, the decedent, received a mammogram on June 15, 1994, and Dr. James Greenhaw, a radiologist at Community Hospital Association, Inc., (hereafter referred to as the hospital,) read it the following day.He concluded that some scattered small microcalcifications were present but failed to identify the cancerous masses that were present in the mammogram.

Approximately one month later, Ms. Portis felt a firmness in her right breast.She sought treatment from her family doctor, Dr. James Hunter, on December 8, 1994.Dr. Hunter recommended that Ms. Portis have another mammogram performed, and on January 18, 1995, that mammogram showed that Ms. Portis had significant masses in her breast.She underwent a biopsy and mastectomy a week later.The tumor had grown from two centimeters in June 1994, to eight centimeters in January 1995.

Following the surgery, Ms. Portis underwent chemotherapy.Upon completing the chemotherapy, there was no detectable evidence of cancer, and the doctors declared her to be in remission.But because of the large size of the tumor and the extensive number of lymph nodes involved, she was at high risk for recurrence.Although the high-dose chemotherapy treatment was risky and experimental, as a preventative measure, Dr. Douglas Jones, Ms. Portis' treating oncologist, recommended that she see Dr. James Commers, another oncologist.He recommended and administered the high-dose chemotherapy treatment.Ms. Portis began the treatment in July 1995, and died on October 1, 1995, of veno-occlusive liver disease, a complication from the high dose chemotherapy she received.

Mr. David Portis, her husband, filed a wrongful death and lost-chance of survival action against Dr. James Greenhaw and the hospital for the death of his wife.Mr. Portis, however, withdrew his lost-chance of survival cause of action at trial.On September 28, 1999, the case went before a jury in Worth County with the Honorable John C. Andrews presiding.The jury awarded damages in the amount of $775,000 and assessed eighty- percent fault to Dr. Greenhaw and twenty- percent fault against Ms. Portis.The jury found the hospital was not liable.The court entered judgment on November 12, 1999, and Dr. Greenhaw filed post-trial motions, which the court denied.This appeal followed.

Dr. Greenhaw raises six points on appeal.First, Dr. Greenhaw alleges that the trial court erred by denying his motion for directed verdict and motion judgment notwithstanding the verdict(JNOV) because plaintiff failed to make a submissible case of wrongful death in that he failed to establish a causal relationship between the alleged conduct of Dr. Greenhaw and Ms. Portis' death.Second, he argues that the court erred in denying his motion for new trial for the following reasons: (1)the court made a prejudicial error by failing to find that venire person, Mr. Frankie Ross, intentionally failed to disclose his prior involvement in lawsuits because he failed to respond to questions asked during voir dire concerning prior litigation, and the trial court denied Dr. Greenhaw a hearing on the matter; (2) the verdict directing instruction, Number 6, was not supported by the evidence, and was therefore, misleading, confusing, and prejudicial because it created a roving commission for the jury to speculate as to what constituted "any detectable sign of cancer" on the mammogram films; (3) overruling defendants' objection concerning questions to plaintiff's expert witness, Dr. Standiford, seeking his opinion as to the acceptance of high-dose chemotherapy by oncologist in June 1994, because the questions were without proper foundation and called for speculations, in that Dr. Steven Standiford is not an oncologist and the questions sought Dr. Standiford's opinion as to what oncologists believed and thought in June 1994; (4)the court abused its discretion by excluding relevant evidence of decedent's prior uterine cancer; and (5)the court allowed counsel to misstate or misquote evidence while examining a witness by asking improper hypothetical questions of Dr. Dean Tamisiea, Dr Greenhaw's expert witness.

I. Submissible Case

A.Standard of Review

In reviewing a trial court's rulings on motions for JNOV, we review the evidence in the light most favorable to the jury's verdict to determine whether the plaintiff made a submissible case.¹We look at all favorable evidence and reasonable inferences flowing therefrom, discarding all unfavorable evidence and inferences.²

B.Legal Analysis

Mr. Portis alleged in his wrongful death petition that Dr. Greenhaw and the hospital negligently treated, interpreted and diagnosed a mammogram administered to Donna Portis, and that this negligence caused or contributed to her death.In order to succeed under a claim for medical malpractice, Mr. Portis must prove the requisite elements of a medical malpractice claim.³The plaintiff must show that the defendant's act or omission failed to meet the requisite standard of care, that the defendant performed the act or omission negligently, and that there was a causal connection between the act or omission and the injury the plaintiff sustained.⁴In addition, the plaintiff must show that the doctor's negligence caused the decedent's death.⁵In other words, the plaintiff in a wrongful death action, must prove that "'but for' the actions or inaction of the defendant, the decedent would not have died."⁶

"Proof of causation requires expert medical testimony '[w]hen there is a sophisticated injury, requiring surgical intervention or other highly scientific technique for diagnosis.'"⁷In this case, expert medical testimony was required to establish whether within a reasonable degree of medical certainty, Dr. Greenhaw's negligent act of failing to diagnose Ms. Portis' cancer in June 1994, caused her death.

When a party relies on expert testimony to provide evidence as to causation when there are two or more possible causes, that testimony must be given to a reasonable degree of certainty.When an expert merely testifies that a given action or failure to act "might" or "could have" yielded a given result, though other causes are possible, such testimony is devoid of evidentiary value.⁸The pertinent testimony establishing causation took place between Mr. Portis' counsel and Dr. Standiford:

Q: What affect did the high dosage chemotherapy then have on Donna Portis?

A.The complications of the high-dose therapy led to her death.

***

Q.Doctor, do you have an opinion within a reasonable degree of medical certainty that Donna Portis' tumor was growing from June of 1994 to January of 1995?

A.Yes.

Q.What is your opinion?A.It grew significantly during that period of time.Q.And so do you have an opinion within a reasonable degree of medical certainty as to whether or not Donna Portis would have required high-dose chemotherapy if her tumor had been found in June of 1994?

A.Yes.

Q.And what do you base that opinion on, sir?

A.On my experience with managing many patients with breast cancer and coming up with their treatment plans and the fact that her tumor at that point in time would have been considerably smaller and considerably earlier stage.

Q.How would you have staged her tumor at that point in time?

A.She would have been a stage II cancer which means that was smaller than five centimeters in size and is one piece and had -- perhaps did not have lymph nodes involved.

Q.And based upon your assessment of her condition in June 20 of 1994 do you have an opinion within a reasonable degree of medical certainty whether or not she would have required high-dose chemotherapy as part of her treatment if the cancer had been discovered at that time?

A.Yes.

***

Q.I believe the question that was pending to you was what is your opinion as to whether or not Donna Portis would have required high-dose chemotherapy as part of her treatment if the tumor had been discovered in June of 1994?

A.It's my opinion she would not have required high-dose chemotherapy at that time.

Q. (By Mr. Murphy) Dr. Standiford, do you have an opinion within a reasonable degree of medical certainty as to whether or not the delay occasioned by the failure to properly interpret the mammogram film on June the 15th of 1994 by Dr. Greenhaw and Community Hospital caused the death of Donna Portis?

A.Yes.

Q.What is your opinion?

A.That had her cancer been diagnosed in June of 1994she would not have required high-dose chemotherapy and therefore would not have died at that time of the consequence of high-dose chemotherapy.

In Baker, the court held that similar testimony was sufficient to establish causation.The defendant alleged that the trial court erred in overruling his motions for directed verdict and JNOV because the plaintiffs failed to make a submissible case of wrongful death by failing to present evidence establishing a causal connection between the doctor's conduct and the decedent's death.One of the expert witnesses testified that it was his opinion within a reasonable...