Tobb v. Menorah Medical Center, WD

• Decision Date: 18 February 1992
• Docket Number: No. WD,WD
• Citation: 825 S.W.2d 638
• Parties: Morris TOBB, Plaintiff-Appellant, v. MENORAH MEDICAL CENTER et al., Defendants-Respondents. 42775.
• Court: Missouri Court of Appeals

Page 638

825 S.W.2d 638

Morris TOBB, Plaintiff-Appellant, v. MENORAH MEDICAL CENTER et al., Defendants-Respondents.

No. WD 42775.

Missouri Court of Appeals Western District.

Feb. 18, 1992.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 31, 1992.

Gregory W. Vleisides, Catherine A. Donnelly, Kansas City, Margaret M. O'Leary, Chicago, Ill., for plaintiff-appellant.

Darwin E. Johnson, Paul W. Dwight, Kansas City, for defendants-respondents.

Before LOWENSTEIN, C.J., and SHANGLER and TURNAGE, JJ.

LOWENSTEIN, Chief Judge.

The plaintiff Morris Tobb, personal representative of the estate of his deceased wife, Edna Tobb, sued the defendants Menorah Medical Center and doctors Malcolm Shalet, Jack Wolff, Daniel Scharf, Lawrence S. Cohen, and Bernard Levi, for injuries sustained from a stroke suffered by Edna Tobb during implantation of a permanent heart pacemaker in March, 1982. Edna Tobb later died in 1984. The five count petition, alleging various negligent decisions by the doctors, as well as wilful and wanton acts by Dr.'s Shalet, Scharf and Cohen, was tried to a jury, with a verdict rendered for defendants on all counts. Tobb has appealed, arguing seven points of error: 1) plaintiff should have been granted a new trial because a juror did not disclose during voir dire prior involvement as a defendant in a lawsuit, 2) plaintiff should have been granted a new trial because the verdict is against the weight of the evidence, 3) the trial court should have excluded speculative testimony that Mrs. Tobb suffered a condition which necessitated a pacemaker insertion, 4) the trial court should not have allowed defendants to state that Mrs. Tobb would have died without the pacemaker insertion, 5) plaintiff should have been granted a new trial because the verdict for Scharf is against the weight of the evidence in that it is contrary to the documentary evidence, 6) plaintiff should have been granted a new trial based on juror misconduct, singly and in combination with other trial error, and, 7) the trial court prejudicially erred in not curbing note-taking by jury foreman. The facts on appeal

Mrs. Tobb suffered from hypertension since the late 1930's. Prior to 1976, she had apparently been prescribed Inderal, an anti-hypertensive medication. In 1976 and 1979 as a patient of the defendant Shalet, her EKG showed an innocuous form of heart block, called "left bundle branch block." Dr. Shalet continued to prescribe Inderal until 1981, when Tobb entered the Menorah emergency room with an inflamed gallbladder. The gallbladder was surgically removed on September 28, 1981, and because Inderal slows the heart rate, Dr. Shalet took decedent off Inderal from September 28 until October 7, 1981. An EKG taken soon after decedent's admittance showed the left bundle branch blockage as "complete," while one taken later, on October 2, four and a half days after decedent's last dose of Inderal, apparently showed an "incomplete" blockage. Dr. Shalet put the decedent back on Inderal, which she took until March 1982.

On March 11, 1982, Mrs. Tobb went to Dr. Shalet, complaining of dizziness, unsteadiness, and difficulty walking. Shalet took an EKG and diagnosed complete heart block and possible heart attack, and sent Tobb to the Menorah emergency room. Dr. Scharf, a cardiologist, was called in, and inserted a temporary pacemaker to increase her heart rate to normal levels. On March 12, Mrs. Tobb signed a consent for a permanent pacemaker, and was operated on that afternoon. Sometime during the operation, she suffered an embolic stroke, a loss of oxygen to the brain caused by a blood clot from the heart blocking an artery to the brain. She was discharged from Menorah on March 21, 1982, and received speech, occupational and physical therapy, which continued under Dr. Shalet's direction until approximately June, 1982. Dr. Shalet saw her through June of 1983, after which she saw no doctors, and then died in May, 1984.

Failure to grant a new trial

Plaintiff Tobb maintains in points two and five that the verdict for defendants was against the weight of the evidence, and that the verdict for Scharf in particular is against the "weight of the documentary evidence." The central issue in this case was whether defendants correctly diagnosed the decedent's medical condition on March 11 and 12, and correctly deemed insertion of a permanent pacemaker necessary. Tobb's lengthy brief points to testimony and documentary evidence that the defendants came to the wrong medical conclusion as to a need for the permanent pacemaker, that defendants did not really know that the pacemaker insertion had not caused the stroke, that the Inderal had caused a temporary blockage not needing a pacemaker insertion, and that the defendants were negligent in not determining this. It is not the place of the appellate court to weigh the evidence, Nelson v. Tayon, 265 S.W.2d 409, 416 (Mo.1954), and it is the trial court alone who may decide that a jury verdict is against the weight of the evidence, Division of Family Services v. Duncan, 782 S.W.2d 457, 460 (Mo.App.1990). Furthermore, the plaintiff had the burden of proof, and it is not necessary that there be any evidence to support the defendants' verdict, Parsons Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166, 172 (Mo.1968), Duncan, 782 S.W.2d at 460.

The jury obviously did not believe the plaintiff's evidence as to negligence and causation, but believed defendants' evidence that: 1) it was medically necessary to insert a permanent pacemaker in Mrs. Tobb and, 2) the insertion of the permanent pacemaker was not causally related to decedent's embolic stroke. In sum the evidence favorable to the verdict was that the pacemaker was necessary due to degenerative disease and the stroke was in no way linked to the pacemaker. The point is denied.

Evidentiary rulings

Plaintiff maintains in points three and four the trial court made incorrect evidentiary rulings. He alleges two errors: 1) that the trial court should have excluded mention of an "intermittent" heart block because it was speculative evidence, and, 2) that the defendants should not have been allowed to state the opinion that Mrs. Tobb could have died without insertion of the permanent pacemaker. Plaintiff argues that both pieces of testimony were speculative, prejudicial, and contradicted or disproved by other (his) testimony. Admissability of evidence is within the sound discretion of the trial court, and the standard for reversal for admissability errors is a "substantial or glaring injustice," State ex rel. Highway and Transportation Com'n v. Pracht, 801 S.W.2d 90, 93 (Mo.App.1990). This court finds it difficult to see how the evidence of risk of death without a pacemaker would not be relevant, given that most medical decisions must be made through a risk-benefit analysis, or how the defendants' theory of type of blockage would not be relevant. There is nothing in the record showing the evidence to be speculation, rather it appears to be admitted as expert opinion. Finally, contradiction goes to the weight of evidence, not its admissability; the points are denied.

Juror misconduct

Plaintiff's final points pertain to juror misconduct. Point six requests a new trial on the grounds that Juror Gray had in his possession, and possibly in the jury room for an entire day, a library book on heart disease. The plaintiff on noticing the book in court requested the judge to take action; Juror Gray was told to take the book home, and refrain from outside sources for the duration of the trial. Gray did not sign the verdict, so any prejudice from this incident must come from the exposure of the other jurors to the book. No further inquiry was made as to the impact on other jurors, and no instruction or caution was made to the jury as a whole. In Webb v. Rench, 476 S.W.2d 570, 575 (Mo.1972), the Supreme Court of Missouri rejected just such an argument, holding that where the trial court took responsive action, the "absence of request for further relief ... precludes a finding of reversible error." Here, where plaintiff made no request beyond the in camera interview with Juror Gray, the trial court could be reasonably assured that the plaintiff was satisfied, and this court holds no reversible error occurred.

Even when a juror does obtain relevant information which is not in evidence, a new trial is not warranted unless that information is conflicting with or different from the evidence presented at trial. In Consolidated School District No. 3 v. West Mo. Power Co., 329 Mo. 690, 46 S.W.2d 174, 180 (1931), the court held no new trial was justified when a juror obtained outside information about the result of a transformer burning up, when the information did not differ from the evidence at trial. Here, there is no evidence by the plaintiff as to how the book Heart Disease differs in content with the factual evidence at trial. The point is denied.

In point seven, the plaintiff objects to note-taking by Juror Groves. Plaintiff states that Juror Groves was twice seen taking notes, and that counsel for plaintiff objected, although the location of the second incident in the transcript is unknown. The substance of the incident pointed out in the transcript is as follows:

MR. VLEISIDES (Plaintiff's Counsel): I think I see a juror taking notes. He had a pad in his hand. He hasn't had it before. He was writing something just now.

THE COURT: Keep an eye on him. If he does it again ...

MR. VLEISIDES: Thank you.

On only this record a reversal is not mandated because: 1) trial court's response to note-taking is discretionary, State v. Malveaux, 604 S.W.2d 728, 734 (Mo.App.1980), 2) where there is no evidence the notes were made known to other jurors and the jury is cautioned to base decision on evidence, there is no abuse of discretion, Malveaux, id., 3) a party may not assert error of the trial court in failing to do more than the party requested, ...