Routh v. St. John's Mercy Medical Center

• Decision Date: 13 February 1990
• Docket Number: No. 53499,53499
• Citation: Routh v. St. John's Mercy Medical Center, 785 S.W.2d 744 (Mo. App. 1990)
• Parties: Donald and Ruby ROUTH, Plaintiffs/Appellants, v. ST. JOHN'S MERCY MEDICAL CENTER, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 744

785 S.W.2d 744

Donald and Ruby ROUTH, Plaintiffs/Appellants, v. ST. JOHN'S MERCY MEDICAL CENTER, Defendant/Respondent.

No. 53499.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 13, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied March 14, 1990.

Application to Transfer Denied April 17, 1990.

Richard L. Hughes, Thomas J. Gregory, Mogab & Hughes Attorneys, P.C., St. Louis, for plaintiffs/appellants.

Gary P. Paul, Bernard C. Brinker, Brinker, Doyen & Kovacs, P.C., Clayton, for defendant/respondent.

SMITH, Judge.

Plaintiffs appeal from a jury verdict and judgment against them in a case based upon medical malpractice. We reverse and remand.

Plaintiff husband was hospitalized and operated on for spondylolisthesis, a congenital condition in which one vertebra slips over an adjoining vertebra resulting in pain. This condition existed at plaintiff's 5th lumbar and first sacral vertebrae. The operation was performed by two surgeons, Dr. Jacob, a neurosurgeon and Dr. Luther an orthopedist. Dr. Jacob performed a laminectomy, removal of the fifth lumbar disc, and Dr. Luther performed a fusion between the fourth lumbar and first sacral vertebrae. The operating notes reflected no problems during the surgery. Examination in the recovery room on June 9, 1982, the day of surgery, and on three succeeding days gave no indication of any problem in the right foot other than some numbness in the right leg, a condition which had existed prior to the operation. On June 13 plaintiff began complaining of problems in the right foot which in short order manifested themselves by a foot drop. A second surgery was performed in July which indicated a change in the condition of the nerve controlling the foot since the earlier operation. In the first operation Dr. Jacob had noted that the nerve was free and not compressed after the surgical procedure. In the second operation the nerve was found to be red, edematous, and compressed. The foot drop condition did not respond to treatment and is permanent.

Following the first operation Dr. Jacob left orders for the nurses: "Bed rest, roll like a log, use at least three people; patient not to roll self." The "log roll" is a procedure where the nurses utilize a draw sheet to turn the patient from one position to another. Its purpose is to make the turn as if the patient were a rigid log and to avoid any twisting of the spine in making the turn. When utilizing three nurses, two of them handle the draw sheet standing next to each other, and the third nurse, on the opposite side of the bed, places pillows behind the patient when he has reached the correct position. There was testimony that in the absence of an order as to the number of nurses to be used, proper nursing procedure called for use of at least two nurses in performing the maneuver, particularly with spinal fusion patients. Good nursing practice requires that nurses follow the doctor's orders in handling patients. ¹

Plaintiffs, husband and wife, and husband's hospital roommate testified that at approximately four p.m. on June 12 a nurse, Suzanne Stoy, came into the room for the purpose of turning husband. She was alone. Stoy was described at trial as a large woman, six feet or taller and weighing approximately two hundred pounds. Husband's weight is similar. All three witnesses testified that Stoy attempted to log roll husband by herself by turning him on his side. Husband testified that he had immediate pain and all three witnesses testified he screamed. Stoy released the draw sheet and husband rolled back into position on his back. He stated he felt an immediate sensation like rubber bands breaking in his back and down his right leg. Stoy immediately left the room. Her nurse's notes reflect that husband was turned at approximately four p.m. and that he was in some pain. It made no other reference to the alleged incident. Stoy, still an employee of the hospital at the time of trial, did not testify. Upon motion of defendant prior to argument to the jury, plaintiffs' attorney was directed by the court not to refer to Stoy's failure to testify or to draw an inference therefrom. This ruling serves as plaintiffs' first contention of error.

In all, five doctors testified at trial. Four were experts hired by the respective sides for the purpose of testifying. Dr. Jacob was the fifth, called by plaintiff. Dr. Jacob did not attempt to testify to causation for the foot drop but did testify that there had been movement at the fusion site between the first and second operation causing compression of the nerve. Plaintiffs' outside expert attributed the foot drop to nurse Stoy's actions. Defendant's three experts, a neurologist, an orthopedist, and a neurosurgeon, each had a different theory of causation but all agreed that the foot drop did not result from the alleged actions of Stoy. The medical experts were generally agreed that they would expect to see evidence of nerve damage caused by the operation itself immediately or very shortly after surgery.

Neither Dr. Luther nor Dr. Swaykus, husband's internist and regular doctor testified. Wife testified that she had reported the Stoy occurrence to Dr. Swaykus and attempted to report it to Dr. Jacob. Dr. Jacob had a recollection that there was some question in "their minds about some movement" but did not remember the details. Over plaintiffs' objection defendant's attorney was allowed to argue to the jury an adverse inference from the failure of plaintiffs to produce Drs. Swaykus and Luther. This ruling constitutes plaintiffs' second contention of error.

In addition to his physical problems relating to his foot, husband also has a pre-existing problem with his arm which had been under treatment since 1973. He was treated for that condition by Dr. Meiners. Records were subpoenaed from Dr. Meiners. Included in those records were reports made by the doctor to an insurance company in 1983, 1985, and 1986, all after the foot drop. The essence of the doctor's reports was arguably that the arm problems had ultimately rendered husband disabled from employment. This would conflict with plaintiffs' evidence that his inability to work was the result of the foot drop. These reports (minus any reference to the insurance company) over plaintiffs' objection, were read to, but not seen by, the jury. The order overruling the objection is plaintiffs' third contention of error. ²

We turn first to the refusal of the trial court to allow plaintiffs to comment on the failure of defendant to produce nurse Stoy as a witness. Stoy had been deposed. In her deposition she stated she had no recollection of plaintiff husband or of the incident involving the turning and her only knowledge of his nursing treatment by her was based upon the notes found in the nurse's chart. She did testify however, to her ability to perform the log rolling activity without assistance, her willingness to do so under the proper circumstances, and inferentially at least, that on occasions she had done so.

The so-called "adverse inference" has presented continuing difficulty to the courts. The basic rule is that the failure of a party to call a witness having knowledge of facts and circumstances vital to the case generally raises a presumption that the testimony would be unfavorable to the party failing to proffer it. It is improper, however, for a party to argue the negative inference resulting from his opponent's failure to produce such a witness if the witness is equally available to both parties. Leehy v. Supreme Express & Transfer Company, 646 S.W.2d 786 (Mo. banc 1983) [8-10]. If the witness is equally available it is prejudicial error for the court to overrule an objection to the argument. Hill v. Boles, 583 S.W.2d 141 (Mo. banc 1979). It is similarly prejudicial error to sustain an objection to such argument if the argument is proper. Chavaries v. National Life & Accident Ins. Co. of Tennessee, 110 S.W.2d 790 (Mo.App.1937) .

The rule has an origin pre-dating modern rules of discovery. Id. [11-14]. With modern discovery its application has become more difficult. In Midwest Library Service, Inc. v. Structural Systems, Inc., 566 S.W.2d 249 (Mo.App.1978) [3,4] we squarely held that deposing the witness made the witness "equally available" to both parties destroying the inference and its arguability. The trial court here specifically based its ruling on the Midwest Library case. In Leehy, supra, the Supreme Court rejected "an extreme holding either that an employee is necessarily more available to his employer simply because of his status as an employee or that a witness associated with one party is necessarily equally...