Repple v. Barnes Hosp., 55001
| Decision Date | 12 September 1989 |
| Docket Number | No. 55001,55001 |
| Citation | 778 S.W.2d 819 |
| Parties | Dana REPPLE, et al., Plaintiffs-Appellants, v. BARNES HOSPITAL, et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Gerald K. Rabushka, St. Louis, for plaintiffs-appellants.
Gerald D. Morris, St. Louis, Shepherd, Sandberg & Phoenix, Peter F. Spataro and Doreen Grahm-Powell, St. Louis, Moser, Marsalek, Carpenter, Clearly, Jaeckel & Keaney, Robert Rosenthal, St. Louis, Brown, James & Rabbitt, for defendants-respondents.
Plaintiff, Dana Repple, brought this action for medical malpractice against defendants, Barnes Hospital (Barnes) and Drs. Michael J. Gast, Lewis C. Fischbein, Dale Larson. 1 Plaintiff appeals from the trial court's entry of judgment in favor of Barnes and Dr. Larson pursuant to a directed verdict, and entry of judgment in favor of Drs. Gast and Fischbein pursuant to a jury verdict. 2 We affirm.
Plaintiff first sought treatment with Dr. Gast in connection with a pregnancy on March 19, 1982. At that time, and throughout plaintiff's treatment, Dr. Gast was a full-time employee of Washington University and a faculty member of its medical school, specializing in obstetrics and high risk pregnancies. Plaintiff's baby was delivered at Barnes on November 4, 1982.
Following delivery of her baby, plaintiff experienced a number of complications including a pain in her neck which ran down her back. Dr. Larson, a resident obstetrician and gynecologist at Barnes, diagnosed this condition as a chronic muscle problem. Dr. Gast concurred with the diagnosis and consulted defendant Dr. Fischbein, a rheumatologist specializing in muscle joint disorders. On November 8, Dr. Fischbein examined plaintiff and recommended a cervical collar and physical therapy.
By the morning of November 9, plaintiff's condition had become significantly worse. Dr. Gast finding, among other things, that plaintiff was unable to walk and was experiencing a significant loss of sensory function in her lower extremities, summoned a neurologist. After a period of observation, during which plaintiff's condition continued to deteriorate, a neurosurgeon was summoned and surgery performed. The results of the surgery revealed that plaintiff suffered from a type of vascular malformation (cavernous angioma) which had hemorrhaged. By the time of her discharge plaintiff had been diagnosed quadriplegic. By the time of trial plaintiff testified that she had regained 80% use of her right arm and 30% of her left arm.
At trial plaintiff argued that Drs. Gast, Fischbein and Larson negligently failed to timely diagnose her condition, and that a timely diagnosis would have given her a better than fifty percent chance of avoiding her present state. Plaintiff further asserts derivative liability on the part of Barnes under an agency theory.
On appeal, plaintiff first contends that the court erred in sustaining an objection to a hypothetical question posed to plaintiff's expert Dr. Howard Schwartz during a videotaped deposition taken approximately three years prior to trial. In his deposition, Dr. Schwartz expressed the following opinions:
1. Drs. Gast, Fischbein and Larson failed to timely diagnose the vascular malformation.
2. Drs. Gast, Fischbein and Larson failed to meet the standard of care.
3. Drs. Gast, Fischbein and Larson's failure to meet the standard of care caused plaintiff's present paralysis.
4. Plaintiff's paralysis is permanent.
5. A myelogram and CAT scan performed immediately after November 8, 1982 at 7:00 a.m. would have shown an abnormality.
6. If a myelogram and CAT scan had been performed and proper treatment begun immediately afterwards plaintiff's condition would be significantly better than it is at present.
7. If surgery had been performed on November 8, at 9:30 a.m. plaintiff's condition would be significantly better than it is at present.
8. Dr. Gast failed to recognize that plaintiff was suffering from a neurological disorder and a neurological consultation should have been requested before November 9.
Plaintiff concedes that the hypothetical question posed to Dr. Schwartz contained the following incorrect factual assumptions:
1. The hypothetical question stated that Doctor Gast did not visit plaintiff over the weekend of November 6 and 7 when in fact plaintiff testified that Dr. Gast did visit her over the weekend of November 6 and 7.
2. The hypothetical question stated that Dr. Gast visited plaintiff on Monday evening November 8 when, in fact, plaintiff testified that Dr. Gast visited her on Monday November 8 at 1:00 p.m. and Dr. Gast testified that he visited her between 11:00 a.m. and 12:00 p.m.
3. The hypothetical question stated that plaintiff "was now completely paralyzed from her neck down except for a small amount of limited motion in her left and right arms and hands" when in fact plaintiff testified at trial that she had regained 80% use of her right arm and 30% use of her left arm.
4. The hypothetical question stated that plaintiff's medical records indicated a history of neck pain "beginning" three years ago when in fact her medical records indicated that she had a history of neck pain "approximately" three years ago.
Plaintiff presented the live testimony of two expert witnesses who were permitted to answer and express their opinions to a hypothetical question substantially identical to that posed to Dr. Schwartz, absent the incorrect factual assumptions. After the trial court sustained an objection to Dr. Schwartz's opinions given at his deposition plaintiff did not call Dr. Schwartz as a live witness nor did she attempt to qualify the opinions of Dr. Schwartz through the testimony of her other experts.
When an expert is asked to assume certain facts as true in order to answer a hypothetical question, those facts must be established by the evidence. 3 Franklin v. Mercantile Trust Co., 650 S.W.2d 644, 649 (Mo.App.1983). "An expert opinion (other than one stated on cross-examination) based in part or whole upon hypothesized facts may not be based upon facts or data not of record...." Mo. Evidence Restated, Section 703 (Mo.Bar 1984). The sufficiency of a hypothetical question is addressed to the sound discretion of the trial court. Franklin, 650 S.W.2d at 650.
Here, the evidence not only failed to establish certain assumptions of fact plaintiff posited in her hypothetical question, but it also admittedly contradicted them. Plaintiff argues, however, that the incorrect factual assumptions contained in her hypothetical question were not material and therefore the question should have been admitted.
When an expert is permitted to testify to medical opinions in response to a hypothetical question, it follows, as a general rule, that an expert is...
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...are self-serving from start to inish. 77 Belluso v. Sunnyland Foods , 142 Ga. App. 7, 234 S.E.2d 821 (1977). 78 Repple v. Barnes Hosp ., 778 S.W.2d 819 (Mo. 1989); Bolstridge v. Central Me. Power Co ., 621 F. Supp. 1202 (D.Me. 1985). 79 595 So. 2d 201 (Fla. Dist. Ct. App. 1992). PHOTOGRAPHS......
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...are self-serving from start to finish. 63 Belluso v. Sunnyland Foods , 142 Ga. App. 7, 234 S.E.2d 821 (1977). 64 Repple v. Barnes Hosp ., 778 S.W.2d 819 (Mo. 1989); Bolstridge v. Central Me. Power Co ., 621 F. Supp. 1202 (D.Me. 1985). 65 595 So. 2d 201 (Fla. Dist. Ct. App. 1992). §44.600 Is......
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Photographs, slides, films and videos
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