Smith v. Courter

• Court: Missouri Court of Appeals
• Writing for the Court: Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON; DIXON
• Citation: Smith v. Courter, 575 S.W.2d 199 (Mo. App. 1978)
• Decision Date: 01 May 1978
• Docket Number: Nos. KCD,s. KCD
• Parties: Ray SMITH, Plaintiff-Respondent-Appellant, v. Larry P. COURTER, Arthur B. Smith, and John W. Walker, d/b/a Lockwood Radiological Group, Defendants-Appellants-Respondents. 29107, KCD 29115.

Page 199

575 S.W.2d 199

Ray SMITH, Plaintiff-Respondent-Appellant, v. Larry P. COURTER, Arthur B. Smith, and John W. Walker, d/b/a Lockwood Radiological Group Defendants-Appellants-Respondents.

Nos. KCD 29107, KCD 29115.

Missouri Court of Appeals, Kansas City District.

May 1, 1978.

Motion for Rehearing and/or Transfer Denied June 12, 1978.

Application to Transfer Denied Jan. 29, 1979.

Dean F. Arnold, Donald E. Raymond, Kansas City, for appellants Arthur B. Smith and John W. Walker.

Lantz Welch, Welch & Austin, Kansas City, for respondent Ray Smith.

Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.

DIXON, Judge.

This is the second appeal arising from a claim for damages for malpractice by a medical partnership. Upon the first appeal, a judgment for $105,000 actual damages was reversed because plaintiff's argument to the jury was held to inject the issue of punitive damages. Smith v. Courter, 531 S.W.2d 743 (Mo. banc 1976).

In the instant appeal, the cause was submitted to the jury for findings on actual and punitive damages. The jury awarded actual damages of $50,000 and punitive damages of $150,000. The trial court ordered a remittitur of $50,000 from the award of punitive damages which the plaintiff accepted under protest. Plaintiff filed a notice of appeal (KCD29115), but has not briefed the appeal, and it is abandoned.

The defendants' appeal, in eight separate points, raises issues of submissibility, instructional error, the submission of punitive damages, as well as questioning the trial court's amendment of the verdict and judgment to name the partnership properly.

The posture of the present case, from an evidentiary standpoint, differs from the prior trial. Because submissibility is argued, a statement of facts must be made in this case rather than referring to the facts as developed in the original trial. This is particularly true since in the instant case the plaintiff dismissed as to defendant Courter, and the trial judge, at the instance of the remaining defendants, withdrew from the consideration of the jury the deposition evidence of Dr. Courter.

In accordance with the well-settled rule that on the issue of submissibility, this court considers the evidence in the light most favorable to the plaintiff, together with all reasonable inferences, and disregards evidence and inferences adverse to the plaintiff (Steele v. Woods, 327 S.W.2d 187 (Mo.1959)), the following factual statement is supported by the record.

In 1967, the plaintiff consulted his family physician complaining of soreness in the rib area. The doctor noticed tenderness at about the level of the 10th rib and decided X-rays were necessary. The plaintiff was referred to the Lockwood Radiological Group which was a general partnership consisting of the defendants, Dr. Smith and Dr. Walker. Dr. Courter, then a resident, was an employee of the partnership, and his agency for the partnership is not an issue in this case. Pursuant to that reference, the plaintiff was X-rayed; and Dr. Courter dictated a report of his findings. The report stated that there was a lytic lesion in the anterior end of the 11th rib and indicated that the lesion was probably a metastatic disease suggestive of a malignant tumor which had spread from its original site to a new location. The report recommended a biopsy. Dr. Smith signed this report dictated by Dr. Courter, but there is no evidence that he himself reviewed the X-rays. Not all X-rays were reviewed when they were interpreted by Dr. Courter.

Upon receipt of the report, the family physician, upon the basis of the plaintiff's complaints and the possibility of the cancerous lesion, decided that the rib lesion should be removed for biopsy and referred the plaintiff to a thoracic surgeon. The thoracic surgeon, one Dr. Benoit, operated and removed a portion of the 11th rib which was submitted to the pathologist. The pathologist found no pathological implication in the biopsy submitted. Further X-rays disclosed that the lesion was still present, and it is admitted that the lesion was, in fact, in the 10th rib and not in the 11th, a portion of which had been removed. The family physician conferred with the plaintiff and indicated that because the doctors were concerned about the nature of the lesion which was still present that further surgery was indicated. The same surgeon removed a portion of the 10th rib; and, upon pathological examination, it was determined that the plaintiff did not have any rib cancer. The abnormality was diagnosed as a benign non-malignant tumor which ordinarily would not prove to be either troublesome or life endangering.

The evidence further disclosed that in 1965 Lockwood Radiological had X-rayed the plaintiff in connection with abdominal complaints, and those X-rays indicated the presence of the rib lesion ultimately removed. The 1965 X-rays clearly revealed the existence of the abnormality of the rib 32 months prior to the two rib operations. The procedures of Lockwood Radiological were such that all X-rays on a specific patient would be kept in the same file and have the same identification number as any prior or subsequent X-rays.

At trial, a comparison of the 1965 X-rays and the 1967 X-rays indicated that the lesion was relatively unchanged in size and shape. Dr. Smith, one of the partners in Lockwood Radiological, testified on cross-examination that if Dr. Courter had taken a few seconds to examine the 1965 X-rays, he would have seen little or no change in the lesion, that this would have almost ruled out metastatic cancer, and that the longer such a lesion showed no growth without change in other symptoms, the more inclined a doctor would be to avoid surgery. The surgeon, Dr. Benoit, testified that had he known before surgery that the abnormality had not grown in 32 months, he would not have operated.

There was a great deal of evidence concerning the condition of the plaintiff before and after the surgery and evidence of permanent disability. The actual damages of $50,000 are not questioned on this appeal, so a detailed recital of the physical condition of the plaintiff is unnecessary.

The first claim of error is that the record contains no evidence to support a finding that the defendants failed to exercise the proper degree of skill and learning ordinarily used under the same or similar circumstances by members of their profession. The thrust of this argument is based upon Haase v. Garfinkel, 418 S.W.2d 108 (Mo.1967), that in the great majority of malpractice cases, a submissible case can only be made by expert medical testimony. Haase affirmed defendant's motion for a directed verdict on the ground there was no evidence of negligence on that issue. There was no medical testimony in Haase in behalf of the plaintiff's case. That is not true in this case. The record here contains the admissions of Dr. Smith, one of the defendants, that the failure of Dr. Courter to examine the 1965 X-ray was not good medical practice and that the failure of Dr. Courter to correctly identify the 10th rib, rather than the 11th, was not good medical practice. In view of these admissions, the plaintiff was entitled to go to the jury on the submitted issues of whether the failure of the employee of the defendant partnership to correctly identify the rib or to check the earlier X-rays was negligence.

Defendants' second claim of error is that the defendants were entitled to a directed verdict because there was no evidence of damage, either by reason of the failure to properly identify the rib prior to the first surgery, or from the failure of the defendants to check the prior X-rays. The defendants' argument under this point is based on the view the defendants take of the evidence presented to the jury and ignores entirely the evidence favorable to the plaintiff. The evidence would support a finding by the jury that if the defendants had not misidentified the ribs in question, only one operation would have been necessary and, further, that if the prior X-rays had been examined, an operation might have been unnecessary. It is difficult to conceive of more direct evidence of causation and damage than appears in this case. The argument is without merit. This is not a case where there was no evidence of the causation of the injury. It is a question of which evidence the jury chose to believe. The defendants' evidence and some of the other evidence in the case did indicate, as the defendants argue, that there might have been a decision made to operate even with the knowledge of the prior X-rays and that Dr. Benoit might have made a different decision with respect to the removal of the 10th rib while the first operation was in progress; but that evidence does not stand alone, and the jury was entitled to draw the inferences from the evidence in support of the plaintiff's verdict.

In Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600 (1937), the evidence presented showed the injury could have resulted from causes other than defendants' acts. In Williams v. Chamberlain, 316 S.W.2d 505 (Mo.1958), there was no medical evidence whatever that the injection was inadequate under the circumstances. Regarding plaintiff's claim that defendant was negligent in failing to remove a broken needle fragment lodged in plaintiff's back for 27 days, the Williams court stated such negligence must be established by expert testimony, and the court found none. The absence of expert testimony was also dispositive of plaintiff's claim of negligence in defendant's failure to hospitalize plaintiff. In Bertram v. Wunning, 385 S.W.2d 803 (Mo.App.1965), defendant admitted liability for the accident. The sole issue was the nature and extent of plaintiff's resulting injuries. The question was whether plaintiff presented sufficient evidence to establish a causal connection between the accident and a hernia, which was first discovered some three months after the accident. While the plaintiff's doctor testified that...