Thurman v. St. Andrews Management Services

• Decision Date: 30 September 2008
• Docket Number: No. ED 90781.,ED 90781.
• Citation: 268 S.W.3d 434
• Parties: Rosetta THURMAN and Helen Berry, Respondents/Plaintiffs, v. ST. ANDREWS MANAGEMENT SERVICES, INC. and New Florence Nursing Home, Inc., Appellants/Defendants.
• Court: Missouri Court of Appeals

268 S.W.3d 434

Rosetta THURMAN and Helen Berry, Respondents/Plaintiffs, v. ST. ANDREWS MANAGEMENT SERVICES, INC. and New Florence Nursing Home, Inc., Appellants/Defendants.

No. ED 90781.

Missouri Court of Appeals, Eastern District, Division One.

September 30, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 13, 2008.

James C. Leritz, Leritz, Plunkert & Bruning, P.C., St. Louis, MO, for appellants.

Robert V. Krueger, Van Matre & Krueger, L.L.C., Mexico, MO, for respondents.

KURT S. ODENWALD, Presiding Judge.

Introduction

St. Andrews Management Services, Inc. (St.Andrews) and New Florence Nursing Home, Inc. (New Florence) (collectively referred to as Appellants) appeal from the trial court's order granting survivors¹ (collectively referred to as Plaintiffs) of Zenia Bishop (Decedent) a new trial on the grounds of instructional error for failing to allow the jury to apportion fault among Appellants and a dismissed party in Plaintiffs' wrongful death action. We affirm in part and reverse in part.

Background

On May 1, 2000, Decedent was a resident of New Florence Nursing and Care Center (Nursing Home), a long-term skilled nursing facility, when she sustained a closed head injury and a wrist fracture in a fall. Plaintiffs allege that after Nursing Home failed to send Decedent to an emergency center for evaluation, Decedent's daughter, Rosetta A. Thurman (Plaintiff Thurman), transported her mother to the emergency center at Audrain Medical Center in Mexico, Missouri. Decedent's wrist injury was treated in the emergency department by Dr. David Posner (Dr. Posner). Plaintiffs allege Dr. Posner failed to diagnose or properly treat Decedent's head trauma. Decedent returned to Nursing Home where Plaintiffs allege she continued to decline over the next several days. Plaintiffs contend that though Dr. Santosh Shenoy (Dr. Shenoy) was the medical director of Nursing Home and Decedent's attending physician there, he did not personally visit or observe Decedent until May 4, 2000, several days after the fall. When Dr. Shenoy ordered Decedent be sent to the Audrain Medical Center emergency center, that request was not implemented by Nursing Home, and Plaintiff Thurman again transported her mother to Audrain Medical Center. Decedent was admitted to Audrain Medical Center where she was diagnosed with bilateral subdural hematomas with a questionable infarct. Plaintiffs allege Decedent's death on May 5, 2000, was a result of her fall on May 1, 2000.

Plaintiffs filed an action for the wrongful death of Decedent on April 30, 2002. Named as defendants were: New Florence, owner of Nursing Home; St. Andrews, operator and manager of Nursing Home; Audrain Healthcare, Inc. (Audrain Medical Center); Dr. Shenoy, director of medical services for Nursing Home and Decedent's attending physician while at Nursing Home; and Dr. Posner, the attending emergency physician at Audrain Medical Center who provided care to Decedent (collectively referred to as Defendants).

Approximately 16 months prior to the trial, in April 2006, the court approved a settlement agreement between Plaintiffs and Audrain Medical Center and judgment was entered whereby Audrain Medical Center was released and dismissed from the suit in exchange for payment of $35,000.

On the morning of the first day of trial, August 13, 2007, Plaintiffs reached a settlement agreement with Dr. Posner for $145,000. Dr. Posner was then released and dismissed as a party defendant with prejudice. At the same time, Plaintiffs also released Dr. Shenoy, who was similarly dismissed with prejudice. After the settlement and dismissals, the remaining defendants, New Florence and St. Andrews, requested leave to amend their answers to plead a set-off as to the settlements reached by Plaintiffs with both Dr. Posner and Audrain Medical Center. The trial court granted the requested leave and Appellants filed separate amended answers the next day pleading Section 537.060² set-off as an affirmative defense and seeking a reduction of any judgment against them for the $35,000 paid to Plaintiffs by Audrain Medical Center and the $145,000 paid on behalf of Dr. Posner.

The trial then proceeded with Appellants, New Florence and St. Andrews, as the remaining defendants. While Plaintiffs did not present evidence regarding the dismissed Dr. Posner's alleged negligence, Appellants presented substantial evidence on Dr. Posner's alleged negligence and substandard care.

Following the close of all evidence, the court held an off-the-record jury instruction conference. Due to the lack of a complete record, it is unclear exactly what transpired during this conference. Plaintiffs assert the parties and the trial judge attempted to draft apportionment instructions to fit the facts and circumstances of the case, because none were found in the Missouri Approved Instructions (MAI) or not-in-MAI. Plaintiffs allege the trial judge acknowledged the application of Section 538.230 apportionment and agreed with the applicability, need, and necessity of fault apportionment instructions after Appellants presented evidence of Dr. Posner's alleged negligence. Prior to trial, Plaintiffs' counsel had prepared instructions to offer to the court which included no apportionment language. After Appellants introduced evidence of Dr. Posner's negligence at trial, Plaintiffs' counsel, in handwriting, revised their instructions to address the issue of apportionment between Appellants and Dr. Posner, a previously settled party. At the end of the off-the-record instruction conference, the trial court denied the apportionment instructions offered by Plaintiffs and gave the jury the non-apportionment instructions Plaintiffs' counsel had prepared prior to the beginning of trial. The instructions given by the trial court to the jury were drafted by Plaintiffs' counsel before the trial court granted Appellant's request to file amended answers, and at a time when the pleadings raised no affirmative defense of set-off. Plaintiffs allege they requested more time to draft appropriate apportionment instructions during the instruction conference, but no request for leave to revise or correct the instructions is found on the record. Once back on the record, the following exchange took place:

THE COURT: On the record, then. I have been tendered by plaintiffs and have either given or intend to give instructions number one through twelve inclusive. Any objection, [Appellants' counsel]?

[Appellants' counsel then objected to instructions three, four, seven, eight, nine, ten, eleven, twelve, and the verdict form.]

THE COURT: All right. Those objections are also overruled.

[Plaintiffs' counsel]: Judge, the record I wanted to make is that we're submitting these instructions in lieu of instructions that would have found apportionment between the parties.

THE COURT: Do you want to mark any of those apportionment instructions that you had?

[Plaintiffs' counsel]: Second thought, Judge, I'm going to withdraw.

THE COURT: Okay.

[Plaintiffs' counsel]: Judge, on second thought I guess I renew my objection.

THE COURT: Well, we don't need to mark them exhibits. I'll just mark them as A, B, C, D.

. . . .

THE COURT: All right. I have been tendered and have refused instructions numbered A, B, C, D, E, and what I'll call Verdict F by plaintiff. Those basically posit apportionment of fault which would require the jury to apportion fault to include Dr. David Posner as well as the defendants in this case. [Plaintiffs' counsel], any argument on those matters?

[Plaintiffs' counsel]: Uhm, that over objection of plaintiff during the end of the trial that evidence and standard of care evidence was allowed in for defendant's use raising negligence of parties that had previously been dismissed during the case and from experts of whom were never endorsed as expert witnesses for the defendant, St. Andrew's and New Florence. That raised issues with respect to apportioning fault of now settled parties and plaintiffs requested and were denied to be able to apportion and raise Dr. David Posner in the instructions if — Now if the defendants who are in the case are arguing raising and letting the jury know that another party was at fault that originally was in the litigation.

[Appellants' counsel]: Judge, I would only note for the record that even if apportionment against Dr. Posner is proper the tendered instructions are not in proper form.

THE COURT: Well, I'm still not going to give the instructions, so you may appeal on that basis if you feel it's necessary.

Following the use of the non-apportionment instructions and verdict form, the jurors returned a verdict finding in favor of St. Andrews, but against New Florence, assessing Plaintiffs' total damages at $173,000.

On September 19, 2007, the trial court entered its judgment in favor of St. Andrews and Plaintiffs. The trial court entered judgment against New Florence in the amount of $28,000 after reducing the $173,000 jury verdict by the $145,000 settlement with Dr. Posner, pursuant to Section 537.060. The trial court rejected Appellants' set-off and reduction request of the $35,000 settlement from Audrain Medical Center because Appellants had not sought to assert any affirmative defense relating to that settlement even though Appellants had notice of that settlement approximately 16 months before trial.

On October 29, 2007, the court heard the parties' respective motions, including motions to amend the judgment filed by both parties and a motion for a new trial filed by Plaintiffs. The trial court granted Plaintiffs' motion for a new trial "on the grounds that the court erred in not allowing the jury to apportion fault among the remaining defendants and the dismissed party, Dr. Posner." Appellants, defendants New Florence and St. Andrews, appeal.

Points on Appeal

Appellants raise four points on appeal. In their first point, Appellants claim the trial court erred in granting Plaintiffs a...