Sides v. St. Anthony's Medical Center, SC 88948.

• Decision Date: 05 August 2008
• Docket Number: No. SC 88948.,SC 88948.
• Parties: Janice SIDES, et al., Appellants, v. ST. ANTHONY'S MEDICAL CENTER, et al., Respondents.
• Court: Missouri Supreme Court

258 S.W.3d 811

Janice SIDES, et al., Appellants, v. ST. ANTHONY'S MEDICAL CENTER, et al., Respondents.

No. SC 88948.

Supreme Court of Missouri, En Banc.

August 5, 2008.

Matthew D. Meyerkord, Steven F. Meyerkord, Steven D. Rineberg, Meyerkord, Rineberg & Graham, LLC, St. Louis, for Appellants

V. Scott Williams, Douglas B. Ponder, Hazelwood & Weber LLC, St. Charles, Donald R. Carmody, Johm E. Hilton, William J. Magrath, Carmody MacDonald P.C., St. Louis, for Respondents.

Leland F. Dempsey, Dempsey & Kingsland, Kansas City, for Amicus Curiae Missouri Association of Trial Attorneys.

Harvey M. Tettlebaum, Robert L. Hess, II, R. Ryan Harding, Husch Blackwell Sanders LLP, Jefferson City, for Amicus Curiae Missouri State Medical Association, Missouri Pharmacy Association, Missouri

Health Care Association, and Missouri Dental Association.

LAURA DENVIR STITH, Chief Justice.

This case presents the question whether expert testimony may be offered in medical malpractice cases to support a claim brought under the theory of res ipsa loquitur. The trial court ruled that under this Court's opinion in Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962), an expert witness is not permitted to testify in a res ipsa loquitur case. This means, it concluded, that since medical testimony is required in a case such as this involving the cause of an infection at the surgical site following a back operation, the action could not be brought on a res ipsa loquitur theory. It therefore granted defendants' motions to dismiss.

This Court reverses and remands. The Hasemeier plaintiff did not attempt to introduce expert testimony under a res ipsa loquitur theory. Rather, that plaintiff sought to avoid use of a medical expert by substituting an inference based on res ipsa loquitur for a medical opinion of negligence. This Court simply held that a plaintiff in a medical malpractice case must present medical expert testimony as to negligence unless the case fits within one of the two narrow exceptions traditionally recognized to the rule requiring expert testimony. Plaintiff could not avoid this requirement simply by pleading a res ipsa loquitur theory. Those court of appeals cases that have interpreted Hasemeier more broadly are, to that extent, overruled.

This case presents an issue of first impression to this Court, as to whether this Court should adopt the position set out in Restatement (Second) of Torts Section 328D, comment d (1965), that a plaintiff in a medical malpractice case can proceed on a res ipsa loquitur theory where the plaintiff offers a medical expert's opinion that the injury would not have occurred in the absence of negligence by defendant. This Court joins with the 28 out of 36 other jurisdictions that have considered this question and answered in the affirmative.

I. FACTUAL BACKGROUND

Janice Sides had a lumbar laminectomy with spinal fusion on June 17, 2003, at respondent St. Anthony's Medical Center. Her surgeon was respondent Thomas K. Lee, M.D., who was employed by respondent Tesson Heights Orthopedic and Arthroscopic Associates, P.C. Mrs. Sides was discharged from St. Anthony's three days later. She and her husband, Clyde Sides, filed suit in June 2005 against St. Anthony's, Dr. Lee and Tesson Heights, alleging that she was infected by Escherichia coli bacteria (more commonly referred to as E. coli) during the surgery. In this and her first two amended petitions, plaintiffs alleged that the infection was caused by one of various failures to take standard operative infection precautions before, during and after the operation or perforation of Mrs. Sides's bowel.

In their third amended petition, plaintiffs alleged a res ipsa loquitur theory against defendants on the basis that an infection in the surgical site itself, such as that experienced by Mrs. Sides, does not occur in the absence of negligence. They alleged that when Dr. Lee performed the surgery he was assisted by "agents, servants and employees of defendant St. Anthony's" and that all of the equipment and materials used in the surgery were prepared by St. Anthony's. Plaintiffs further alleged that Mrs. Sides was unconscious due to anesthesia given to her at the time of the surgery, that her body and the surgical site were under the exclusive and joint control of defendants, that defendants had greater knowledge of the possible causes of the infection, and that the three defendants "infected plaintiff Janice F. Sides' body at the site of the surgery" with E. coli.

Defendants moved to dismiss, alleging that under this Court's opinion in Hasemeier and the opinion in Spears v. Capital Region Med. Ctr., Inc., 86 S.W.3d 58, 61-62 (Mo.App. W.D.2002), which followed Hasemeier, plaintiffs could not proceed on a theory of res ipsa loquitur and were required to assert a specific negligence theory against medical malpractice defendants such as these. The Sides conceded that they could not prove the specific way in which the negligence occurred, but urged that they should be able to rely on expert testimony in support of the theory of res ipsa loquitur to show that the defendants were negligent. The trial court agreed with defendants that Hasemeier precluded plaintiffs from using expert testimony in support of res ipsa loquitur in a medical malpractice case. As the Sides had conceded they could not otherwise show negligence,¹ the trial court dismissed the suit with prejudice as to all defendants. Following an opinion by the Missouri Court of Appeals, Eastern District, this Court granted transfer.

II. EXPERT TESTIMONY MAY BE USED ON THE ISSUE OF NEGLIGENCE IN A RES IPSA LOQUITUR MEDICAL MALPRACTICE CASE

The issue before this Court is a narrow one: whether to permit medical experts to offer opinions on the issue of negligence of the defendants in a medical malpractice case that is brought on a theory of res ipsa loquitur rather than based on specific or general negligence. Some background on the general nature and application of res ipsa loquitur is helpful to an understanding of its application to medical negligence cases.

This Court has declared that the doctrine of res ipsa loquitur applies:

when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; and (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence.

Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo. banc 1983). The doctrine is used in cases in which it is not clear exactly what caused an injury, but all the probable causes are within the control or right to control of defendant. Id.

The only time that this Court has addressed the possible application of res ipsa loquitur to medical malpractice cases is in 1962 in Hasemeier. In that case, plaintiff's decedent went to the hospital to give birth. Defendant doctor told her husband that the fetus was dead in the womb and that he would need to operate immediately to remove the fetus in order to save the mother's life. Once the operation began, the doctor delivered a healthy baby. The mother, however, died shortly after the operation. Her husband sued, alleging that but for the negligence of the doctor his wife would not have died. He did not assert any specific negligent act of the doctor or offer any expert testimony to support his theory, however. Instead, he sought to bring the case on a theory of res ipsa loquitur, arguing that it spoke for itself that if the doctor were not negligent, his wife would not have died. He argued that he should not, therefore, need expert testimony. 361 S.W.2d at 699.

Hasemeier rejected plaintiff's argument. In so doing, it noted that the res ipsa loquitur doctrine:

is a rule of evidence whereby a submissible issue of negligence may be made by adducing a particular kind of circumstantial evidence, viz., by showing the fact of an occurrence which, because of its character and circumstances, permits a jury to draw a rebuttable inference, based on the common knowledge or experience of laymen, that the causes of the occurrence in question do not ordinarily exist in the absence of negligence on the part of the one in control.

361 S.W.2d at 700. Hasemeier further noted that the doctrine does not normally have any application to medical malpractice cases except where expert testimony is not required to show a breach of the standard of care, such as in cases in which (1) the patient receives an unusual injury to an area of the body unaffected by the operation or treatment; or (2) the physician left a foreign object in an operative cavity, as even a lay person can assess negligence in such a case. Id. The Court held that to permit recovery without expert testimony in such cases, it was a prerequisite "that laymen know, based on their common knowledge or experience" that the undesirable outcome would not have occurred unless the defendant physician was negligent. Id. at 701.

In making this statement, however, Hasemeier was not rejecting an attempt to present an expert on the res ipsa loquitur question, for no expert was offered by the plaintiff in that case. Rather, it was saying that, in the absence of expert testimony, a jury of lay persons could not find negligence under a res ipsa loquitur theory where the medical issue is not one within their understanding. The cases on which it relied were cases requiring medical testimony in medical malpractice cases. See, e.g., Williams v. Chamberlain, 316 S.W.2d 505, 510-11 (Mo.1958) (plaintiff's case properly dismissed where she failed to present expert to testify to cause of tetanus infection after treatment by doctor). At best, Hasemeier appeared to assume that the only possible choices were either to use a medical expert on a specific or general negligence theory or to use no expert and submit under res ipsa loquitur, as is done in other res ipsa loquitur cases.

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