Smith v. Capital Region Med. Ctr.

• Decision Date: 23 December 2014
• Docket Number: WD 77043
• Citation: 458 S.W.3d 406
• Parties: Stephen Smith, deceased; Dorothy Smith, Respondent, v. Capital Region Medical Center, Appellant.
• Court: Missouri Court of Appeals

458 S.W.3d 406

Stephen Smith, deceased; Dorothy Smith, Respondent

v.Capital Region Medical Center, Appellant.

WD 77043

Missouri Court of Appeals, Western District.

OPINION FILED: December 23, 2014

Motion for Rehearing and/or Transfer to Supreme Court Denied January 27, 2015

Application for Transfer Denied April 28, 2015

John B. Boyd, Jason J. Iezzi, and Brianne Thomas, Independence, MO, for respondent.

Richard L. Montgomery Jr., Columbia, MO and Susan Ford Robertson, Kansas City, MO, for appellant.

Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge, and Gary D. Witt, Judge

Opinion

Gary D. Witt, Judge

Stephen Smith (“Stephen”)¹ worked as a medical laboratory technician at Capital Region Medical Center (“Capital Region”) from 1969 until March 2006. In April 2006, Stephen filed a claim with the Division of Workers' Compensation alleging that he had contracted the occupational disease of hepatitis C as a result of occupational exposure. Stephen was diagnosed with hepatitis in 1991. He died from complications of the disease on February 27, 2007. The cause of death was sepsis, hepatitis C and acute tubular neurosis. Stephen's wife, Dorothy Smith (“Smith”) was substituted as a party and proceeded with the claim. The claim was denied by the Labor Industrial Relations Commission (“Commission”) and Smith appealed. This court reversed the Commission's decision and remanded for “further proceedings consistent with th[e] opinion.” Smith v. Capital Region Med. Ctr., 412 S.W.3d 252, 254 (Mo.App.W.D.2013) (hereinafter “Smith I ”).

Following remand, the Commission, without taking additional evidence and following its review of all of the evidence, applied the correct legal standard and issued its decision awarding Smith burial expenses of $2,897.58, temporary total disability expenses of $9,848.83 and weekly death benefits of $675.90. Capital Region now appeals.² For reasons explained more fully below, we affirm.

FACTS AND PROCEDURAL HISTORY³

Stephen worked for Capital Region from 1969 until March 2006 as a laboratory technologist. In this position, Stephen drew blood from patients, and worked with blood, human tissue and blood products every day. Stephen worked for Capital Region for a number of years before safety measures to protect people working with blood products were put into effect.⁴ For several years, Stephen and his co-workers did not wear gloves while working with blood or tissue. Moreover, for many years, Stephen and his coworkers prepared blood slides by use of a “pipette,” which is essentially a narrow glass straw. The lab technician would place one end of the pipette into a tube of blood and then place his or her mouth on the other end of the pipette to suction some of the blood into the pipette, creating the substantial possibility of accidentally suctioning blood into his/her mouth. For several years, Stephen and his co-workers were not provided with face shields. As a result, the possibility existed of blood being splattered into Stephen's face, particularly when blood was being centrifuged. Further, the possibility of a needle stick or a blood coming into contact with a cut or sore on Stephen's hands was present during Stephen's entire tenure with Capital Region, especially before gloves were worn when handling blood or tissue. Stephen never reported a needle stick to his employer, but his employer also did not require the reporting of such incidents until sometime in the 1980s or 1990s.

Smith, who was a registered nurse and also worked for Capital Region, and Stephen's co-workers all testified that they came into contact with blood on their skin regularly. Stephen's co-workers performed the same job duties as Stephen and said that they had gotten blood in their mouths while pipetting. One of Stephen's co-workers and Smith also said that they had experienced needle sticks during their careers. Smith said that she had experienced numerous needle sticks and had blood of patients or bodily fluids of patients upon her person several times a week. Smith also testified that she had observed cuts or bandages on Stephen's fingers. Stephen's co-workers and Smith on occasions noticed spots of blood on Stephen's protective lab coat or clothing, but none of them testified that they ever personally witnessed blood on Stephen's face, witnessed him ingest blood by pipetting, or witnessed him suffer a needle stick.

Smith testified that Stephen was wounded with a shotgun in a hunting accident in 1970. As a result of the gunshot wound, Stephen underwent surgery and was given a blood transfusion, with six units of blood. Other than the blood transfusion from this surgery, Smith testified that Stephen did not engage in any type of activities away from work where he could come into contact with other humans' bodily fluids. Stephen did not use intravenous drugs; he did not have tattoos; and he was not a member of the military, all of which have been shown to increase the risk of contracting hepatitis C.

Stephen was first given the diagnosis of hepatitis in 1991, when he was hospitalized for abdominal pain and blood tests revealed elevated liver enzymes. The hepatitis was later typed as hepatitis C.⁵ On April 20, 2005, Smith brought Stephen to the emergency room because he was confused and lethargic.⁶ At that time, Stephen was diagnosed with hepatic encephalopathy. His treating physician, Dr. Arthur Dick, first alerted Stephen to the possibility that his hepatitis C may have been contracted from his work at Capital Region on December 5, 2005. Stephen continued to try to work for Capital Region after this time, but, due to health problems associated with his disease, Stephen was unable to work after March 2006. Thereafter, Stephen filed his claim for workers' compensation. On February 27, 2007, while his claim was pending, Stephen died. His cause of death was sepsis, hepatitis C, and acute tubular neurosis, all complications of his disease. After Stephen's death, Smith was substituted as a party to the claim. While there is no dispute that hepatitis C caused Stephen's death, how and when he contracted the disease is disputed.

At the hearing, Smith and Capital Region presented competing expert medical evidence on the issue of causation of Stephen's hepatitis C. Smith presented the testimony of Dr. Allen Parmet through deposition, who opined that Stephen's work for Capital Region was more likely than not the cause of him contracting hepatitis C and that his work was the prevailing factor in causing him to develop hepatitis C. According to Dr. Parmet, Stephen likely contracted the disease by needle stick or by handling blood and bodily tissue. Dr. Parmet noted that Stephen worked for Capital Region for many years handling blood and body products before the health care industry began to pay attention in the mid–1990s to the safety risks posed by blood-borne pathogens. Dr. Parmet identified the risk of blood splashing into Stephen's eyes, nose, and mouth and opined that needle sticks were a very significant risk factor for phlebotomists and laboratory personnel and occurred quite frequently prior to the institution of OSHA safety standards. Indeed, Dr. Parmet found that Stephen's job placed him in the highest risk group for hepatitis C infection. Dr. Parmet stated that Stephen reported that he suffered multiple needle sticks while working. Dr. Parmet further testified that fifteen percent of patients coming into a hospital in an urban setting have hepatitis C and one percent of the total population has hepatitis C. There was testimony that Capital Region was located in what is considered an urban setting.

Dr. Parmet acknowledged that Stephen's receipt of a blood transfusion in 1970 was also a risk factor for contracting hepatitis C. However, he ultimately opined that Stephen's work for Capital Region and Stephen's daily exposure to blood and body products for many years was the largest risk factor and the most probable source of Stephen's hepatitis C, either through a needle stick or his handling of blood and body products. Dr. Parmet opined that the chances of Stephen contracting the disease through the blood transfusion in 1970 was around six percent, but it was his opinion, based on the extended length of time after the transfusion before Stephen exhibited symptoms of the disease, that the transfusion was not the cause of Stephen contracting the disease.

When asked whether Stephen's blood transfusion in 1970 either caused or contributed to cause his hepatitis C, Dr. Parmet stated:

Based on [the] statistics, as well as [Stephen's] own medical history absent any symptoms of cirrhosis, liver disease prior [to] the 1990s, no evidence of development of cirrhosis until after 2000, it seems highly improbable that the blood transfusion of [1970]⁷ would have been causal, first of all, because the absolute risk was 6 percent and so then half of all people who have hepatitis C should have developed cirrhosis within 15 years or about 1985. And yet [Stephen] doesn't develop cirrhosis for 30 years, which would put him down in the very few percentage of people who do develop cirrhosis with that long a latency.

With regard to the period of time after a person is exposed to hepatitis C and the time a patient can predictably become symptomatic, Dr. Parmet testified that there is an average incubation period of six weeks between the initial exposure and the development of acute hepatitis syndrome. That syndrome includes flu-like symptoms of general aches, pains, malaise, fevers but rarely jaundice.⁸ Dr. Parmet stated, however, that not everyone who gets the infection develops the acute syndrome; rather, half to two-thirds of people are completely asymptomatic and never know when the initial infection was acquired. Following this incubation period, there is a latency period when the hepatitis C virus is slowly growing, replicating, and damaging the liver. According to Dr. Parmet, the minimum time from onset of the infection to onset...