Rogers v. Bond, 74470

• Decision Date: 21 July 1992
• Docket Number: No. 74470,74470
• Citation: 839 S.W.2d 292
• Parties: Winston ROGERS, et al., Plaintiffs-Respondents, v. Dr. Leslie F. BOND, et al., Defendants-Appellants.
• Court: Missouri Supreme Court

Page 292

839 S.W.2d 292

Winston ROGERS, et al., Plaintiffs-Respondents, v.Dr. Leslie F. BOND, et al., Defendants-Appellants.

No. 74470.

Supreme Court of Missouri En Banc.

July 21, 1992.

Robert A. Wulff, Mark R. Dunn, St. Louis, for defendants-appellants.

Elbert A. Walton, Jr., St. Louis, for plaintiffs-respondents.

THOMAS, Judge.

This is an appeal from the trial of a suit for damages for medical malpractice brought by Winston Rogers and by Bobbie Rogers, his wife, for damages for loss of consortium.

I.MEDICAL FACTS

Winston Rogers sought medical treatment from Dr. Bond for urination problems.Dr. Bond diagnosed the problem as a urinary tract infection and prescribed medicine for Winston.Winston continued to have urinary problems and finally sought emergency treatment at Central Medical Center.¹The hospital contacted Dr. Bond who spoke with Winston on the telephone.Dr. Bond immediately admitted Winston to the hospital for testing.Dr. Bond determined that Winston had gallstones, which would require surgery.

On the morning of the scheduled surgery, according to Dr. Bond's medical notes, Dr. Bond used a gastroscope to view Winston's stomach and located a duodenal ulcer that appeared to Dr. Bond to be active.Prior to the surgery, Dr. Bond asked Winston if he was aware of the ulcer.Winston claims that he told Dr. Bond that the ulcer had healed and that it did not bother him anymore.Dr. Bond told Winston that he would "take care of" the ulcer when he performed the gallstone operation.During the gallstone surgery, Dr. Bond removed one-third of Winston's stomach to cure the ulcer.Winston was informed of this after his surgery.A pathological examination of the tissue removed from Winston's body revealed an ulcer that was "healed."

Within one week of his discharge, Winston was readmitted to the hospital due to a stomal obstruction of the gastroenterostomy (an obstruction in the new opening between the stomach and the intestine), which caused severe abdominal pain, dehydration and nausea.Winston was released and readmitted two days later for an additional obstruction that developed.Once again, Winston was released and readmitted with the same symptoms within two days.Dr. Bond then performed surgery on Winston to remove the blockage between the stomach and the intestine.Winston's symptoms were alleviated after this operation.

Winston and Bobbie Rogers filed suit against Dr. Bond and Metropolitan Medical & Health Services, Inc.The jury returned a $300,000.00 verdict for Winston and a $7,250.00 verdict in favor of Bobbie.Defendants filed a Motion for JNOV or in the Alternative a Motion for New Trial.The trial judge overruled the motion with respect to Winston's verdict but sustained the defendants' Motion for New Trial as to Bobbie's verdict.Five months later, the trial court proceeded with a retrial of Bobbie's cause of action and the jury returned a verdict for the defendants.This constituted a final disposition of the case at the trial level.Dr. Bond and Metropolitan Medical & Health Services, Inc., appealed the verdict rendered in favor of Winston Rogers.Bobbie Rogers filed a notice of appeal of the trial court's granting of defendants' Motion for New Trial following the first trial.The court of appeals affirmed the judgment in favor of Winston Rogers but dismissed Bobbie Rogers' appeal, finding Bobbie Rogers waived her right to appeal the granting of a new trial by failing to appeal the trial court's order before the second trial.Both plaintiffs and defendants sought review by this Court.

II.CROSS-APPEAL OF PLAINTIFFBOBBIE ROGERS

Bobbie Rogers appeals the trial court's order that granted a new trial of her cause of action.Her appeal, however, comes too late.An order granting a motion for a new trial is an appealable order.§ 512.020, RSMo 1986.The retrial of the case before an appeal is taken waives any error that could have been alleged at that time.It is too late to complain after the second trial produces a different result.Jones v. Columbia Mutual Insurance Company, 636 S.W.2d 132, 134(Mo.App.1982).Allowing a party to choose "the most profitable of the two [judgments is] a species of gambling not allowed in a court of justice."In re Marriage of Neal, 699 S.W.2d 92, 95(Mo.App.1985), citingDavis v. Davis, 8 Mo. 56, 58(1843).Bobbie's failure to appeal prior to the retrial precludes her from assigning error to the order now.Therefore, we dismiss the cross-appeal of Bobbie Rogers.

III.INSTRUCTIONAL ERROR

Defendants allege that the trial court erred in submitting plaintiffs' verdict director, InstructionNo. 9.InstructionNo. 9 read as follows:

Your verdict must be for the plaintiffWinston Rogers on his claim against defendantsLeslie Bond and Metropolitan Medical & Health Services, Inc., if you believe:

First, defendantLeslie Bond, either:

1.Performed ulcer surgery upon PlaintiffWinston Rogers without the consent of PlaintiffWinston Rogers, or

2.Prior to performing ulcer surgery on plaintiffWinston Rogers, failed to advise, inform or warn plaintiffWinston Rogers of the material complication, danger or risk of PlaintiffWinston Rogers' anastomosis closing off or becoming obstructed following said ulcer surgery, but nevertheless performed ulcer surgery on plaintiffWinston Rogers, or 3.Prior to performing ulcer surgery on plaintiffWinston Rogers, failed to disclose, advise, inform or warn plaintiffWinston Rogers of all material complications, dangers or risks of the operation, but nevertheless performed said ulcer surgery on plaintiffWinston Rogers, or

4.Performed ulcer surgery on plaintiffWinston Rogers eventhough [sic] the ulcer in plaintiffWinston Rogers' duodenum was healed and not active at the time of said surgery, or

5.Performed ulcer surgery on plaintiffWinston Rogers eventhough [sic] the ulcer in plaintiffWinston Rogers' duodenum was not bleeding, or was not perforated or was not intractably painful, or

6.Knew or should have known that the ulcer surgery on plaintiffWinston Rogers was unecessary [sic] and likely to result in material complications or injury to plaintiff, but nevertheless advised and performed the ulcer surgery, or

7.Performed unnecessary ulcer surgery on plaintiffWinston Rogers, and

Second, defendant Bond was thereby negligent, and

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

Defendants claim that the instruction violated Rule 70.02(a), which provides, in pertinent part, as follows:

All instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.

Prior to the adoption of the Missouri Approved Jury Instructions (MAI) in 1965, Missouri instructions were long and complex, partially due to the practice of requiring the jury to find evidentiary facts rather than ultimate issues.It was not unusual to find an instruction in Missouri Instructions to Juries (1942), written by Walter A. Raymonds, the preeminent instruction form book in use at the time, that extended over several pages and consisted of only one sentence.Such an instruction resulted, in part, from the practice of attorneys repeating the allegations set forth in their pleadings in the jury instruction.This also caused pre-MAI instructions to be excessively wordy by reason of "shotgun" type language often used at the pleading stage to allege all possible shades of meaning in describing their claims.

Missouri ushered in a whole new approach to instructing the jury in civil cases by adopting MAI in 1965.The backbone of this new approach is represented in Rule 70.02(a), quoted above.The requirement that the instructions be simple, brief and free from argument carries with it several concepts, including that the instructions be as short as possible and that they not be repetitious by including unnecessary duplications.

Plaintiffs' verdict director, InstructionNo. 9, violates this rule several times.Although defendants' instruction contains seven subparagraphs of specifications of negligence, it really only submits three theories: (1) lack of consent, (2) lack of informed consent, and (3) unnecessary surgery.Subparagraphs 2 and 3 both submit the absence of information necessary to establish lack of informed consent.Subparagraphs 4, 5, 6 and 7 each submit the issue of whether the operation was unnecessary.Submitting the same element of a case more than once violates Rule 70.02(a) for several reasons.First, it makes the instruction excessively long as well as complex and confusing to the jury.Second, it overemphasizes one particular aspect of ...