Sheffler v. Arana

• Decision Date: 15 July 1997
• Docket Number: No. WD,WD
• Citation: 950 S.W.2d 259
• Parties: Clara May SHEFFLER and Raymond Sheffler, Appellants, v. Victor A. ARANA, M.D., Respondent. 53552.
• Court: Missouri Court of Appeals

Page 259

950 S.W.2d 259

Clara May SHEFFLER and Raymond Sheffler, Appellants, v. Victor A. ARANA, M.D., Respondent.

No. WD 53552.

Missouri Court of Appeals Western District.

July 15, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 2, 1997.

Richard F. Lombardo, Shaffer Lombardo Shurin, Kansas City, for appellants.

R. Dan Boulware, Kenneth E. Siemens, Watkins, Boulware, Lucas, Miner, Murphy & Taylor, L.L.P., St. Joseph, for respondent.

Before ULRICH, C.J., P.J., and HANNA and LAURA DENVIR STITH, JJ.

ULRICH, Chief Judge, Presiding Judge.

Victor A. Arana, M.D. appeals from the $246,500 judgment in favor of Clara May Sheffler and Raymond Sheffler in their medical malpractice action arising from Dr. Arana's care and treatment of Mrs. Sheffler in 1993. Specifically, Dr. Arana was found to have been negligent in performing a primary anastomosis rather than a colostomy after failing to properly prepare Mrs. Sheffler's bowels when she was diagnosed with diverticulosis of the sigmoid colon and in failing to diagnose and treat Mrs. Sheffler's postoperative complications.

Dr. Arana raises five points of error on appeal. He contends that the trial court erred in (1) failing to declare a mistrial during closing argument when plaintiffs' counsel implied that he left his employment with Heartland Hospital because he was "in trouble with the hospital"; (2) overruling his objections for cause regarding three venirepersons who had personal and/or professional relationships with plaintiffs or plaintiffs' counsel; (3) overruling his motion for directed verdict because plaintiffs failed to make a submissible case through expert testimony; (4) submitting to the jury verdict directing instruction No. 8 because plaintiffs failed to make a submissible case and the evidence did not support plaintiffs' specific allegations of negligence; and (5) overruling his motion for judgment notwithstanding the verdict. The judgment of the trial court is affirmed.

FACTS

Clara May Sheffler went to see Dr. Victor Arana, her family physician, on June 7, 1993, with complaints of abdominal pain and constipation. Dr. Arana scheduled Mrs. Sheffler for a colonoscopy to be performed at the hospital the next day and prescribed Golytely, a laxative medication, to evacuate the bowels. On June 8, Dr. Arana performed the colonoscopy and a barium enema x-ray. The tests revealed that Mrs. Sheffler had diverticulosis of the sigmoid colon. Diverticulosis is the presence of many small diverticula, or small tubular sacs or pockets, branching off the colon. There was also evidence of inflammation of the diverticula, and one of the diverticulum had perforated and formed an abscess. Despite these findings, Dr. Arana decided to defer surgery.

Two days later, on June 10, Dr. Arana received a telephone call from Mrs. Sheffler's husband, Ray Sheffler, who indicated that Mrs. Sheffler's condition had further deteriorated and that she was experiencing a substantial amount of abdominal pain. Dr. Arana prescribed the antibiotic Keftab and Golytely and placed Mrs. Sheffler on a clear liquid diet. Mrs. Sheffler, however, did not take the antibiotic or the Golytely.

Dr. Arana received another telephone call on June 14, from Mr. Sheffler informing him that Mrs. Sheffler's condition had worsened and that she was experiencing pain, bloating, and fever. Surgery was then scheduled for June 16. Whether Dr. Arana told Mrs. Sheffler to take Golytely and Keftab in preparation for the surgery was disputed.

On June 16, Mrs. Sheffler was admitted to Heartland Hospital for colon surgery. Dr. Arana obtained a surgical permit from Mrs. Sheffler allowing for sigmoid resection or possible colostomy. Upon entering Mrs. Sheffler's abdomen, Dr. Arana found a large inflammatory mass lying on the pelvic area. Dr. Arana then performed a sigmoid colon resection with primary anastomosis wherein he removed the diseased portion of Mrs. Sheffler's colon and surgically reattached the ends of the colon. He did not perform a colostomy. A colostomy is the surgical creation of an opening between the colon and the surface of the body that allows a patient to temporarily pass their bowels into a bag. It is performed when a the colon is not immediately reattached after removal of the diseased portion because the bowels have not been properly prepared for surgery (i.e. feces remain in the bowels) or an infection is present. An anastomosis is then performed four to eight weeks later, after the infection has been treated with antibiotics, wherein the colostomy is "taken down" and the colon is reattached. Dr. Arana testified that he saw no infection or feces after removing the inflammatory mass on the colon, therefore, he reattached the colon. Because the infection had spread to the appendix, the appendix was also removed.

Mrs. Sheffler remained in the hospital after her surgery and for three days seemed to follow a normal postoperative course. She was alert with no pain and was walking up and down the halls. On June 20, four days after her surgery, however, Mrs. Sheffler suddenly started to experience extreme lower abdominal pain that radiated to her chest. Dr. Arana examined Mrs. Sheffler and found that she had an increased heart rate and that her abdomen was soft. He also performed a rectal examination and found a small amount of feces in the ampulla, the dilated portion of the rectum next to the anal canal. In his hospital progress notes, Dr. Arana noted that Mrs. Sheffler had not had a bowel movement and "[m]ay need colostomy for decompression." He also prescribed pain medication.

Because of Mrs. Sheffler's increased heart rate, Dr. Arana obtained a cardiopulmonary consult the next day from Dr. Stanley Crie. Finding everything to be normal from a cardiopulmonary standpoint, Dr. Crie suggested that Mrs. Sheffler's symptoms could be the result of complications from the surgery. Consequently, Dr. Arana ordered an x-ray, which showed "free air" under the diaphragm.

During this time, Mrs. Sheffler's white blood cell count began to rise, indicating the presence of an infection. A normal white blood cell count is between 9,000 and 10,000. On June 21, Mrs. Sheffler's white blood cell count was 10,500. On June 23, it had risen to 12,000, and Dr. Arana suspected that Mrs. Sheffler, due to antibiotics, had developed colitis, an inflammation of the colon. As a result, Dr. Arana discontinued antibiotics, and Mrs. Sheffler's white blood cell count rose sharply to 15,700. Despite her high blood cell count, Dr. Arana discharged Mrs. Sheffler from the hospital on June 26. At the time of discharge, her blood count had lowered to 13,000 but was still above normal. Dr. Arana instructed Mrs. Sheffler to resume her medications and to return to his office in eight days for follow up.

Two days later, on June 28, Mrs. Sheffler saw Dr. Arana at his office with continued complaints of abdominal pain. Dr. Arana ordered an x-ray and CT scan. The tests revealed "some residual free air" under the diaphragm. On July 2, Mrs. Sheffler saw Dr. Susan Brown, a nephrologist, for a possible urinary tract infection.

As Mrs. Sheffler's condition progressively worsened, she returned to Dr. Arana's office on July 7. Again, she complained of abdominal pain and nausea. Suspecting that Mrs. Sheffler had a duodenal ulcer, Dr. Arana prescribed Prilosic, an acid blocker. Still having problems with bloating and nausea, Mrs. Sheffler returned to Dr. Arana's office on July 12. Dr. Arana scheduled an endoscopy and a colonoscopy for the next day. As a result of the tests, Dr. Arana diagnosed Mrs. Sheffler with candidiasis, a fungus infection in the esophagus, and a pyloric channel ulcer. He also concluded that the anastomosis was healing fine. Mrs. Sheffler was then readmitted to the hospital on July 13, for treatment of her upper GI problems.

On July 22, an x-ray revealed a considerable increase of air under the diaphragm. Dr. Arana suspected a ruptured viscus ¹ or a perforated anastomosis. He did not, however, schedule her for surgery at this time because he thought her condition was improving. For the next four days, Dr. Arana continued to note in the hospital progress notes that Mrs. Sheffler's condition was improving.

On July 26, Dr. Edward Beheler saw Mrs. Sheffler at Dr. Arana's request for consultation. Thereafter, a barium enema x-ray was ordered and revealed a fistula, or abnormal passage, at the site of the colonic anastomosis. Dr. Beheler concluded that Mrs. Sheffler's problems were caused by the "localized sepsis related to [the] leak at the colonic anastomosis" and immediately scheduled her for surgery.

During Mrs. Sheffler's second surgery on July 30, 1993, Dr. Beheler, with the assistance of Dr. Arana, found an abscessed cavity the size of two fists and a disrupted anastomosis. ² He believed that fecal material had leaked into the abdominal cavity. Multiple abscesses were drained, a small, inflamed piece of the bowel was removed and sent to pathology, and a temporary colostomy was performed. Mrs. Sheffler remained in intensive care for six days following surgery. She was finally discharged from the hospital on August 28.

In November 1993, Mrs. Sheffler reentered the hospital for a take down of the colostomy and reattachment of her colon. Dr. Beheler performed the successful surgery.

Mr. and Mrs. Sheffler sued Dr. Arana on June 22, 1994, for medical malpractice alleging that Dr. Arana deviated from the applicable standard of care in his treatment of Mrs. Sheffler. The allegations included, in part, that Dr. Arana was negligent in performing a primary anastomosis rather than a temporary colostomy on June 16, 1993, and that he failed to diagnose and treat Mrs. Sheffler's postoperative complications.

At trial, each party presented an expert witness to testify regarding whether Dr. Arana breached the standard of care a reasonably prudent health care provider would have used under the same or similar...