Sall v. Ellfeldt

Decision Date13 September 1983
Docket NumberNo. WD,WD
PartiesJohn W. SALL, Jr., and Karen Sall, Appellants, v. Dr. Howard J. ELLFELDT and Dr. T.R. Hunt and Research Medical Center, Respondents. 33480.
CourtMissouri Court of Appeals

Edward M. Boyle, Olathe, Kan., A. Howard Chamberlin, Elwood L. Thomas, Shook, Hardy & Bacon, Kansas City, for appellants.

William H. Woodson, William C. Martucci, Kansas City, for Hunt.

Thomas Wagstaff, Kansas City, for Ellfeldt.

W. James Foland, Kansas City, for Research Medical Center.

Before TURNAGE, P.J., and SHANGLER and CLARK, JJ.

SHANGLER, Judge.

The plaintiffs Sall, husband and wife, sued for personal injury to the husband and loss of consortium to the wife from the medical negligence of defendant physicians Ellfeldt, Hunt and Pryor, and Research Medical Center where the husband was a patient at the time of the alleged malpractice. The claim against Dr. Pryor was dismissed on pretrial motion, and prior to trial the plaintiffs settled their claims against Dr. Ellfeldt and the Research Medical Center for $230,000. There remained for trial the petition against the defendant Hunt and the crossclaims of physician Ellfeldt against Hunt and Research Hospital, and the crossclaim of physician Hunt against Ellfeldt.

At the close of the evidence, the Ellfeldt crossclaim against Research Medical Center was dismissed. Thus, the only claims submitted to the jury were those of the plaintiffs Sall, husband and wife, against the physician Hunt, and the crossclaims of Ellfeldt and Hunt against each other. The jury returned a verdict for the defendant Hunt on the Sall claims for medical malpractice, thus, the jury did not reach the crossclaims for contribution between the physicians Ellfeldt and Hunt.

The plaintiffs Sall contend that the converse instructions submitted by the defendant Hunt were erroneous. The defendant Hunt contends that there was no substantial evidence of a causal connection between any professional negligence by the defendant Hunt and a resultant damage to the plaintiffs, so that the cause of action was not submissible--and any error in instructions was made harmless. To recover, the plaintiffs submitted the alternative theories that neurosurgeon Hunt failed to diagnose the cauda equina syndrome, or that the physician should have known Sall had cauda equina nerve pressure but failed to inform the patient of the necessary treatment, or of the consequences should the treatment not be taken immediately. In more exact terms, the defendant contends that the expert testimony that the damage to Sall was probably caused by the neglect to diagnose the cauda equina snydrome and to inform plaintiff Sall of the necessary treatment for the condition does not rest on a requisite degree of conviction--a reasonable medical certainty--so does not prove the issue of causation or, hence, a submissible cause of action.

Sall suffered a back injury at work on December 6, 1975. He saw Dr. Harris, an associate of Dr. Ellfeldt in the practice of orthopedic surgery, on December 11, 1975. Sall complained of back pain. Harris examined and tested him, diagnosed the condition as a lower back sprain, recommended bed rest, prescribed medications, and instructed him to return if the pain continued. The pain persisted and he returned to the Ellfeldt office on Wednesday, December 17, 1975. Dr. Ellfeldt examined Sall and concluded that the patient "probably had an acute herniated nucleus pulposus or a ruptured disc of [sic] his lower back." Dr. Ellfeldt recommended that Sall enter the hospital, and that evening he was admitted to Research Medical Center. In addition to the standard tests upon admission, Dr. Ellfeldt ordered that an electromyogram [EMG] be performed on Sall. The test was administered by Dr. Pryor the next morning. In the course of the EMG procedure, Sall suddenly lost sensation in his legs, and by the time he left the test room his legs were completely numb. That evening, Thursday, Sall complained to his wife that he had no feeling from the waist down. The results of the EMG as reported by Dr. Pryor on the Sall hospital chart that Thursday indicated some bilateral nerve irritation at the L4-L5 level and confirmed the diagnosis of nerve root pressure probably due to a herniation at that site.

Ellfeldt saw Sall in the hospital on Thursday morning--whether before or after the EMG test was administered, he could not say. The condition of the patient had not changed since the day before. That night, the notes kept by the nurses show Sall complained of severe pain in the left hip. He was injected with morphine, and Dr. Ellfeldt was consulted by telephone. Sall became extremely restless during the night, he was medicated again and placed in a jacket for restraint. The nurse returned at about 4:45 a.m. to administer a sedative and found the restraints severed and a methanex bottle nearby, empty. Sall informed the nurse he had consumed the contents. Dr. Ellfeldt was called, he did not come at that time, but ordered the insertion of a catheter, since he could not void. The discovery of the methanex bottle confirmed the earlier suspicions entertained by Dr. Ellfeldt that Sall was over-sedated from access to other medicines. The physician considered that Sall was in the throes of drug intoxication or withdrawal, and that his presence was not then required. The next morning a nurse from the Kansas University methadone program brought a supply of the drug, and it was thereafter supplied to the patient systematically.

That morning, Friday, December 19, 1975, Dr. Ellfeldt reviewed the EMG report and examined Sall. The patient complained of numbness in both legs, primarily from the navel down. He complained also of incontinence. The doctor noted the EMG suggestion of bilateral L5 root involvement, but was confused by the complaint of numbness from the navel and inability to move--the doctor "was worried about something lower down." Dr. Ellfeldt considered these to be a hysterical manifestation, a nontrue numbness. Combined with methadone, the doctor "literally was confused" by the symptoms. As he explained:

"I really thought our major problem was a drug withdrawal or an overdose of some type, and--mainly because of the distribution of his complaints. They just didn't follow cauda equina syndrome. 1 So I could not make that diagnosis at that state in time, and I did not make that diagnosis."

Dr. Ellfeldt concluded to consult with a psychiatrist--to assess the effect on the patient of the interaction between the methadone and the other narcotics administered in the course of hospital treatment--and also with a neurosurgeon--to assess the disc involvement in view of the inability of the patient to void.

The Sall hospital chart noted that at 1:00 p.m. that Friday Dr. Ellfeldt ordered a consultation by neurologist Dr. Hunt ["Dr. Hunt to see"], but the notation conveyed no urgency. 2 When such a direction intends a sense of emergency, an orthopedic surgeon will note that an immediate consultation is wanted--or will call the consultant personally. Dr. Hunt was notified at home on Friday evening, December 19th, by a hospital staff nurse that Dr. Ellfeldt has requested consultation concerning Sall. In response to inquiry, the nurse informed Dr. Hunt that Sall had a "probable ruptured disc." Dr. Hunt visited Sall the next morning, Saturday, December 20th, and after a review of the charts and a view of the patient Dr. Hunt knew Sall had a "severe problem." The doctor was concerned about the inability of the patient to voluntarily void. He concluded from the straight leg-raising tests that Sall probably had a "large ruptured disc," and from other tests that there was injury or pressure to the nerves on both sides of the body from L4 down through S5. Dr. Hunt diagnosed the condition as "a rupture of the lumbar disc at the L4-L5 level, centrally or medially into the cauda equina." These symptoms, combined with the paralysis of the feet, a numbness pervasive over the legs, thighs and genital area, prompted Dr. Hunt to the diagnosis: "I feel it was very obvious. I think practically any neurosurgeon could recognize it."

Dr. Hunt discussed the diagnosis with both Sall and his wife present during the examination. He told them he thought Sall had a ruptured disc "but one that was much more serious than the ordinary kind of ruptured disc." He recommended an immediate myelogram, and the probable need for surgery. The Salls became very agitated, according to Dr. Hunt, and "refused even to consider having the myelogram at that time." Dr. Hunt testified he told them that "if they put it off, there is a risk of further damage occurring, but they still refused." It was then about 9:00 a.m. on Saturday the 20th. The report Dr. Hunt composed the next day made no reference to any recommendation to the Salls or that they refused treatment on that occasion the day before. Nor did the discharge summary narrative note any such disclosure. Dr. Hunt saw Dr. Ellfeldt as he left the Salls and--by the Hunt version--that he had seen the patient, "thought he was in trouble, that he needed to have a myelogram done right away, and that I [Hunt] had told him that and that he refused it." Ellfeldt told Hunt--by that version of the events--that he would talk to the patient. Some time later, perhaps forty-five minutes, Hunt saw Ellfeldt again in the emergency room and Ellfeldt reported: "Well, he still refuses," but nevertheless scheduled a myelogram for Monday "in case he changed his mind." It was the testimony of Dr. Ellfeldt, however, that he recalled no mention by Dr. Hunt that Sall refused the myelogram and surgery at any time after that examination on Saturday morning. It was the separate testimony of the Salls, husband and wife, that Dr. Hunt did not inform either of them about the condition of the husband or the need for surgery. That testimony was corroborated by the Sall brother and mother. There was a notation entered...

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