Saint Louis Univ. v. Geary

• Decision Date: 17 November 2009
• Docket Number: No. SC 89840.,SC 89840.
• Citation: 321 S.W.3d 282
• Parties: SAINT LOUIS UNIVERSITY and Paulo Bicalho, M.D., Appellants, v. Alice GEARY, Individually and as Personal Representative of the Estate of Phillip Sgroi, Respondent.
• Court: Missouri Supreme Court

321 S.W.3d 282

SAINT LOUIS UNIVERSITY and Paulo Bicalho, M.D., Appellants,

v.Alice GEARY, Individually and as Personal Representative of the Estate of Phillip Sgroi, Respondent.

No. SC 89840.

Supreme Court of Missouri,En Banc.

Nov. 17, 2009.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Robyn Greifzu Fox, Philip L. Willman, Catherine Vale Jochens, St. Louis, MO, for appellants.

Derek H. Potts, Patricia L. Campbell, Jeffrey M. Kuntz, Kansas City, MO, for respondent.

PATRICIA BRECKENRIDGE, Judge.

Saint Louis University (“SLU”) and Paulo Bicalho, M.D., appeal the judgment in favor of Phillip Sgroi and his wife, Alice Geary, in a medical negligence action. A jury found Dr. Bicalho negligent for failing to timely diagnose and treat Mr. Sgroi's fractured hip and found SLU, Dr. Bicalho's employer, vicariously liable for his negligence. SLU and Dr. Bicalho present three issues on appeal: error in the admission of videotape evidence, highlighting the issue of insurance by an improper question during voir dire, and juror nondisclosure.

The trial court's judgment is affirmed. The trial court's erroneous admission of videotape evidence did not prejudice SLU and Dr. Bicalho; the trial court did not abuse its discretion in denying a request for a mistrial because of an improper insurance question; and the trial court did not err in overruling a motion for a new trial for unintentional juror nondisclosure.

Factual and Procedural Background

In 2000, Mr. Sgroi suffered a stroke that affected his left side and caused him to lose the ability to walk. After months of rehabilitation, Mr. Sgroi regained the ability to walk fifty feet with a walker, rake leaves from his wheelchair, get in and out of a vehicle, attend lectures and movies, and go to restaurants. Thereafter, while on a trip, Mr. Sgroi slipped and fell on his left side. When he sought emergency treatment, he was diagnosed with a left arm fracture and a left knee contusion. Mr. Sgroi returned to St. Louis two days later and was admitted to SLU Hospital. Upon discharge, he received inpatient rehabilitation therapy.

Mr. Sgroi subsequently was readmitted to SLU Hospital for gastrointestinal issues and severe knee pain. Mr. Sgroi's wife, Ms. Geary, requested an orthopedic consult because of her concern for his level of pain and disability. On February 19, 2002, Dr. Bicalho, an orthopedic surgeon, examined Mr. Sgroi for his complaint of severe pain in his left knee. Dr. Bicalho ordered X-rays of Mr. Sgroi's left knee, but not of Mr. Sgroi's left hip. The X-ray films did not show any fracture, dislocation, or joint effusion in Mr. Sgroi's left knee. Dr. Bicalho diagnosed Mr. Sgroi with left knee pain and recommended that Mr. Sgroi be sent home with continued physical therapy.

After a few days, Mr. Sgroi was discharged from SLU Hospital and sent home. While at home, he was in extreme pain and completely bedridden. After a week passed, Mr. Sgroi could not straighten his lower left leg due to pain. By March 21, 2002, Mr. Sgroi's pain was so bad that he returned to SLU Hospital, complaining of worsening pain in his left leg from the mid-femur to the knee. That day, an X-ray was taken that revealed a femoral fracture that was weeks old. The fracture was sufficiently old that it would have existed at the time of Dr. Bicalho's consultation.

At the time of his latest admission, Mr. Sgroi also was suffering from a severe urinary track infection, muscles atrophied from lack of use, and a decubitus ulcer from lying in bed. As a result, surgery for the fracture had to be postponed. Mr. Sgroi eventually underwent a left hemiarthroplasty in which he received a prosthetic femur head. After he was discharged from SLU Hospital, Mr. Sgroi began several years of physical therapy, during which he temporarily regained his ability to walk short distances with a walker. Mr. Sgroi eventually ended his therapy because his hip pain had progressed to the point that it was too painful for him to stand or even get out of bed.

Mr. Sgroi subsequently underwent another hip surgery, during which it was discovered that he suffered from an infected hip prosthesis and infected hip joint. Due to the infection, Mr. Sgroi's hip prosthesis and hip joint had to be removed during the surgery. As a result of the loss of his hip joint, Mr. Sgroi permanently lost the ability to walk.

Mr. Sgroi and Ms. Geary sued SLU, Dr. Bicalho, and others, alleging Mr. Sgroi's healthcare providers were negligent in failing to timely and properly diagnose and treat his hip fracture. ¹ Mr. Sgroi claimed that Dr. Bicalho was negligent in failing to diagnose and treat his hip fracture during the February 19, 2002, consultation, and that SLU, as Dr. Bicalho's employer, was vicariously liable for his negligent acts and omissions. Ms. Geary brought a claim for loss of consortium against SLU and Dr. Bicalho.

Trial was held on June 11 to 18, 2007. During voir dire, Mr. Sgroi and Ms. Geary's counsel asked, “Is anybody here an officer, director, or shareholder of an insurance company called The Doctor's Company?” SLU and Dr. Bicalho's counsel objected that the question was an “improper statement of the insurance question” and moved for a mistrial. The trial court sustained the objection, but denied their request for a mistrial.

During the presentation of evidence, Mr. Sgroi and Ms. Geary's orthopedic surgery expert, Dr. Tsourmas, testified that, to a reasonable degree of medical certainty, Mr. Sgroi had a non-displaced hip fracture on February 19, 2002, when he entered SLU Hospital. He stated that the standard of care required Dr. Bicalho to consider the possibility of a hip fracture and that Dr. Bicalho breached the standard of care by failing to do a hip examination and by failing to order a hip X-ray on that date. Dr. Tsourmas concluded that had Dr. Bicalho properly diagnosed the non-displaced hip fracture on February 19, 2002, Mr. Sgroi could have had his broken hip pinned, which is a less drastic surgical procedure with a lower chance for infection. Because Mr. Sgroi's hip fracture was displaced when he subsequently sought care, he required hip replacement surgery, which was a more drastic surgical procedure with a higher chance for infection.

Mr. Sgroi's medical condition precluded him being present at trial and testifying. ² Because of his absence, two videotapes of Mr. Sgroi were played for the jury. The first videotape was a deposition of Mr. Sgroi taken five weeks after his surgery to remove the hip prosthesis and two weeks before trial. The second videotape was a portion of a 2001 television news story about Mr. Sgroi, showing his condition after his recovery from his stroke but before the fall. SLU and Dr. Bicalho objected to the admission of the second videotape or, alternatively, requested that the videotape be limited in length and the audio eliminated because it was not practical, instructive, or calculated to assist the jury in understanding the case, it was irrelevant, it would inflame and prejudice the minds of the jury, and the persons speaking on the videotape could not be cross-examined. The trial court overruled the objection, in part, and sustained it, in part, and allowed a portion of the videotape to be played for the jury.

The jury returned a verdict in favor of Mr. Sgroi and Ms. Geary, awarding Mr. Sgroi $775,000 for his negligence claim and Ms. Geary $50,000 for her loss of consortium claim. The trial court entered judgment in accordance with the jury's verdict. SLU and Dr. Bicalho filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for new trial or, in the second alternative, a motion to amend the judgment. In support of these motions, the trial court permitted them to subpoena juror Demetrius Sims for an evidentiary hearing to address whether Mr. Sims had failed to disclose material information during voir dire. At the hearing on juror nondisclosure, Mr. Sims testified that he previously filed a lawsuit concerning an automobile accident and that he did not respond with that information during voir dire when asked by both plaintiffs' and defendants' attorneys if he had ever filed any kind of lawsuit. The trial court overruled SLU and Dr. Bicalho's post-trial motions, finding that the nondisclosure by Mr. Sims was unintentional and not prejudicial.

SLU and Dr. Bicalho appeal. They present three issues on appeal. First, SLU and Dr. Bicalho argue that the trial court erred in admitting the videotape with audio, claiming the video was not practical, instructive, or calculated to assist the jury in understanding the case, constituted hearsay, served to inflame the jury, and contained out-of-court statements not subject to cross-examination. ³ Second, SLU and Dr. Bicalho assert that the trial court erred in denying their request for mistrial because Mr. Sgroi and Ms. Geary's counsel improperly, and in bad faith, injected insurance into the case, causing prejudice to SLU and Dr. Bicalho and resulting in an excessive verdict in favor of Mr. Sgroi and Ms. Geary. Third, SLU and Dr. Bicalho contend that the trial court erred in overruling their motion for new trial because of juror Sims' intentional nondisclosure of material information. After opinion by the court of appeals, this Court granted Ms. Geary's application for transfer. ⁴ Mo. Const. art. V, sec. 10.

Admission of Videotape

SLU and Dr. Bicalho argue that the trial court erred in admitting the videotape of a news story about Mr. Sgroi. Mr. Sgroi and Ms. Geary offered the videotape to illustrate Mr. Sgroi's mobility and physical and mental health before the injuries allegedly caused by Dr. Bicalho's negligence.

The personal interest news story was about how Mr. Sgroi previously was forced to drop out of a state representative race due to a stroke and how he worked to recover so he could run for that office again. The news anchor and reporter discussed the seriousness of Mr. Sgroi's stroke and...