Spain v. Brown

• Decision Date: 11 June 1991
• Docket Number: No. 58469,58469
• Parties: Jeffrey SPAIN, et al., Respondents, v. Michael A. BROWN, M.D., et al., Appellants.
• Court: Missouri Court of Appeals

Page 417

811 S.W.2d 417

Jeffrey SPAIN, et al., Respondents, v. Michael A. BROWN, M.D., et al., Appellants.

No. 58469.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 11, 1991.

Robert G. Burridge, Stuart M. Haw, Anderson, Gilbert and Garvin, St. Louis, for appellants.

John A. Kilo, Michael W. Flynn, Michael H. Izsak, Klutho, Cody, Kilo, Flynn, Billingsley & Trame, P.C., St. Louis, for respondents.

AHRENS, Judge.

In this jury-tried medical malpractice case, defendants Dr. Michael Brown, Dr. Jordan Ginsburg, and Jewish Hospital appeal from a judgment in favor of plaintiffs Jeffrey and Jorja Spain. We affirm.

Defendants raise three points on appeal. First, the trial court erred in giving plaintiffs' verdict directing instructions. We disagree, because the instructions did not give the jury a roving commission or permit an inference of negligence from injury; further, the instructions were not argumentative or confusing. Second, the trial court erred in admitting the testimony of two chiropractors and an economic expert on the issue of lost earnings. We disagree, because the testimony was relevant and the trial court did not abuse its discretion. Third, the trial court erred in excluding a videotape depicting two elbow arthroscopies. We disagree, because the videotape was not relevant and the trial court did not abuse its discretion.

As a high school and college student, plaintiff ¹ sustained three hyperextension injuries to his right elbow. Each injury was treated non-surgically. When plaintiff was a student at a chiropractic college, his right elbow occasionally locked and was painful when he performed chiropractic manipulations.

In January, 1985, plaintiff sought medical treatment for his elbow condition at Jewish Hospital Orthopedic Clinic, where he was seen by defendant Dr. Michael Brown, an orthopedic resident in his fourth postgraduate year. After arthrograms of the elbow were taken, Dr. Brown diagnosed the condition as being caused by a bone chip in plaintiff's elbow.

Dr. Brown and plaintiff discussed possible treatments, including arthrotomy, which involves opening the elbow joint, and arthroscopy, which involves viewing the elbow joint through a fiberoptic device inserted through a small portal incision. Based on Dr. Brown's description of the two procedures, plaintiff elected to undergo arthroscopy.

On March 11, 1985, while plaintiff was being prepared for surgery, Dr. Brown gave plaintiff a consent form and, for the first time, informed plaintiff that arthroscopy involves risks of infection, anesthesia risks, and a risk of danger to blood vessels and the ulnar nerve. Dr. Brown did not inform plaintiff that an elbow arthroscopy also involves risks of nerve severance and paralysis.

Defendant Dr. Jordan Ginsburg, an orthopedic surgeon and assistant clinical professor, supervised and assisted Dr. Brown in the arthroscopy. Dr. Brown or Dr. Ginsburg made portal incisions on the medial and lateral sides of plaintiff's right elbow, but no bone chip was found.

Following the arthroscopy, plaintiff's right wrist was completely paralyzed; he was unable to raise or extend the thumb and fingers on his right hand. Exploratory surgery revealed plaintiff's right radial nerve was in the normal anatomical location; the nerve was partially divided directly underneath the scar from the lateral portal incision made during the arthroscopy.

During the first year after the arthroscopy, plaintiff experienced some nerve regeneration which enabled him to raise his right wrist. He did not, however, regain the ability to raise or extend the thumb and fingers of his right hand.

Upon graduation from chiropractic college, plaintiff received chiropractic licenses in three states and began teaching at a chiropractic college. In May, 1987, plaintiff purchased an established part-time chiropractic practice in Valentine, Nebraska. In July, 1989, plaintiff sold the practice and took a job with a pharmaceutical company because his right hand had weakened and the pain in his right elbow had become intense, making it difficult for him to perform chiropractic manipulations.

At the conclusion of the evidence, the jury returned a verdict in favor of plaintiff Jeffrey Spain and against all defendants, assessing damages at $1,750,000. The jury awarded plaintiff Jorja Spain $50,000 on her loss of consortium claim.

I. Verdict Directors

In their first point, defendants allege the trial court erred in giving plaintiffs' verdict directing instructions 8, 10, 12, 16, 18 and 20. Instruction 8 reads:

Your verdict must be for the Plaintiff, Dr. Jeffrey Spain, against Defendant Michael A. Brown, M.D., if you believe:

First, either:

Defendant Michael A. Brown, M.D., while performing arthroscopic surgery on Plaintiff's right elbow, placed the lateral portal at the wrong location in relation to the anatomical landmarks of Plaintiff's elbow, or

Defendant Michael A. Brown, M.D. failed to advise Plaintiff of the risk of permanent loss of function to either his right arm, wrist or hand from the elbow arthroscopy surgery, and

Second, Defendant Michael A. Brown, M.D., in one or more of the respects submitted in paragraph First, was thereby negligent, and

Third, such negligence either directly caused damaged [sic] to Plaintiff Dr. Jeffrey Spain or combined with the acts of Defendant Ginsburg to directly cause damage to Plaintiff Dr. Jeffrey Spain.

Instruction 10 is directed to plaintiff's claim against Dr. Ginsburg. It provides, in part:

Your verdict must be for the Plaintiff, Dr. Jeffrey Spain, against Defendant Jordan H. Ginsburg, M.D., if you believe:

First, either:

Defendant Jordan H. Ginsburg, M.D., while performing arthroscopic surgery on Plaintiff's right elbow, placed the lateral portal at the wrong location in relation to the anatomical landmarks of Plaintiff's elbow, or

Defendant Jordan H. Ginsburg, M.D., failed to supervise Defendant Brown's placement of the lateral portal so that the lateral portal would be at the correct location in relation to the anatomical landmarks of Plaintiff's elbow, * * *

Instruction 12 incorporates paragraphs First of instructions 8 and 10, and submits plaintiff Jeffrey Spain's claim against defendant Jewish Hospital. Instructions 16, 18 and 20 submit plaintiff Jorja Spain's derivative claims against the three defendants, and are otherwise substantially similar to instructions 8, 10 and 12, respectively.

Defendants attack these instructions as giving the jury a roving commission; allowing the jury to infer negligence from the fact of injury; and being argumentative and confusing. Defendants further contend the evidence did not support submitting the disjunctive portion of paragraph First in instructions 8, 12, 16, and 20 relating to Dr. Brown's failure to advise plaintiff there was a risk of loss of function.

A. Roving Commission and Inference of Negligence from the Fact of Injury

The challenged verdict directors were modified versions of MAI 21.01. While MAI 21.01 requires the "act or omission complained of" to be set out in paragraph First of the instruction, Rule 70.02(e) mandates that modifications to an MAI "shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts."

Accordingly, "[a] proper instruction submits to the jury only ultimate issues, not evidentiary details, in order to avoid undue emphasis of certain evidence, confusion, and the danger of favoring one party over another." Schiles v. Schaefer, 710 S.W.2d 254, 265 (Mo.App.1986). Our courts, however, "have been unable to fashion precise, universally applicable definitions which explicitly differentiate evidentiary facts from ultimate facts and, thus, on a case by case basis, we determine 'what [are ultimate facts] which must be submitted in a verdict directing instruction and what are evidentiary facts which, in detailed fashion, are not to be included ...'." Id. (quoting Grindstaff v. Tygett, 655 S.W.2d 70, 73 (Mo.App.1983)).

Defendants allege the verdict directors erroneously included the word "wrong." They assert "plaintiffs' case hung on the testimony of Dr. Ronald Greene. The thrust of his presentation was that defendants' negligence lay in their failure to measure or use a rule or measuring device in determining where to place the lateral incision[.]" Therefore, defendants maintain, the court should have instructed the jury by describing "that location in meaningful but non pejorative terms and then ask the jury to derive negligence from the location thus determined."

It is apparent from the record that the location of plaintiff's lateral portal incision scar and the proper location of that incision, in Dr. Greene's opinion, was aptly demonstrated for the jury by Dr. Greene's use of anatomical models and a photograph of plaintiff's elbow. According to Dr. Greene, the proper location of that incision could be found by measuring, in millimeters, from specific anatomical landmarks. While, in Dr. Greene's opinion, the "failure to measure was the absolute one hundred percent cause" of the partial severance of plaintiff's right radial nerve, he also stated defendant doctors were "not even in the ballpark with that incision."

Further, the basis of his opinion that Dr. Ginsburg failed to use the normal standard of skill was that the "portal incision is in the entire wrong place." Dr. Greene's testimony is replete with such references to the incision being in the "wrong" location.

Defendant Dr. Ginsburg acknowledged the risk of an elbow arthroscopy "lies on where the three millimeter incision is made." According to defendants' expert Dr. William Skimming, measuring and marking anatomical landmarks to determine the location of the incision is "frequently mentioned as a technique to do"; although "the measuring is a little more crude than actually using a tape measure." According to Dr. Skimming, there is some anatomical variation in the...