Tompkins v. Cervantes

• Decision Date: 30 January 1996
• Docket Number: No. 68618,68618
• Citation: 917 S.W.2d 186
• Parties: Ormayne TOMPKINS and Mary Lou Tompkins, Plaintiffs/Appellants, v. Leonard CERVANTES, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 186

917 S.W.2d 186

Ormayne TOMPKINS and Mary Lou Tompkins, Plaintiffs/Appellants, v. Leonard CERVANTES, Defendant/Respondent.

No. 68618.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 30, 1996.

Rehearing Denied March 11, 1996.

Appeal from the Circuit Court of the City of St. Louis; Honorable James R. Dowd.

Laurence D. Mass, Eli Karsh, Clayton, for Appellant.

Hinshaw & Culbertson, Brent W. Baldwin, Bruce J. Weingart, St. Louis, for Respondent.

PUDLOWSKI, Judge.

This is an appeal by plaintiffs from a summary judgment awarded to defendant in a legal malpractice claim.

In the evening of May 30, 1981, Steven Tompkins, thirteen year old son of appellants herein, took the family Oldsmobile without permission. Young Steven and some friends were stopped at a public park in St. Louis in the early morning hours when a pair of police officers happened upon them. One of Steven's companions had already had a brief exchange with the officers, and upon seeing them again, he informed Steven that the officers were looking for him and implored Steven to flee immediately. Steven and his cohorts did so, but the officers pursued, pulling up alongside the Oldsmobile at one point before being nudged into the on-coming lane of traffic and losing ground on the speeding vehicle. The officers later stated that they observed one or more of the passengers in the car pulling on Steven as he drove; but the officers lost sight of the speeding car as it crested a hill. The next thing the officers perceived was a loud crash, which they soon realized was the sound of the Oldsmobile plowing into a concrete post. Steven and five of his passengers were killed in the disaster.

In the weeks prior to the fatal car ride, Steven had received treatment for various psychological afflictions from one Dr. Kusama, a staff physician at State Hospital. According to Steven's father, Steven had announced on May 11 that he had a premonition of himself involved in a high-speed chase with police, a chase which ended with Steven crashing into a concrete post, killing himself and all others. It was this frightful forecast which apparently prompted appellants to seek treatment for their son. Dr Kusama diagnosed Steven as suffering from an on-going intermittent suicidal condition, as well as an anxiety disorder, and prescribed medication to control these problems.

Around May 15, Dr. Kusama apparently withdrew as Steven's treating physician and ceased to monitor Steven's status, failing to inform appellants or any other member of the hospital staff of his withdrawal. After Steven's death, appellants retained respondent to represent them in a wrongful death action against Dr. Kusama, alleging that his nonfeasance with regard to Steven was the legal cause of Steven's fatal accident.

In appellants' suit against Dr. Kusama, respondent's theory was that Dr. Kusama's failure to monitor Steven's compliance with his medication schedule and his failure to inform appellants and other doctors of his withdrawal from Steven's care left Steven with an untreated suicidal condition. Respondent further theorized that the fatal crash on the night of May 30 was an act of suicide committed by Steven which would not have occurred if not for Dr. Kusama's negligence. However, Dr. Resnik, the medical expert respondent had retained for trial, could not testify that Steven's death was a suicide. The jury returned an award of $562,000 for appellants, but on appeal this court overturned the jury verdict, ruling that, as a matter of law, there was insufficient evidence of causation because there was no substantial evidence that Steven's death was a suicide. Tompkins v. Kusama, 822 S.W.2d 463 (Mo.App.E.D.1991).

Appellants subsequently brought this claim against respondent for legal malpractice, alleging that although Dr. Resnik's testimony could not establish that Steven's death was a suicide, Dr. Resnik could have given testimony that would have satisfied the causation requirements in the underlying medical malpractice action and that respondent had been negligent in failing to elicit such testimony from Dr. Resnik, thereby, dooming appellants' case. It is this testimony, and the theory of causation of which it is a part, that is the centerpiece of the present appeal.

The trial court granted summary judgment in favor of respondent, interpreting Tompkins v. Kusama to mean Dr. Kusama's negligence could not be established as the cause of Steven's death under any theory. We now affirm that result.

Respondent's Motion to Dismiss Appeal and to Strike Appellants' Brief

We must attend to several matters before commencing our analysis. Respondent urges this court to dismiss this appeal, or alternatively to strike appellants' brief, for failure to comply with Supreme Court Rule 84.04. Respondent complains specifically that appellants have neglected to support each factual assertion in the Statement of Facts section of their appellate brief with citation to the legal file, and has included impermissibly argumentative language in the Statement of Facts.

Selection of an appropriate sanction for violation of Rule 84.04 is vested in this court's discretion. Stevens v. State, 560 S.W.2d 599 (Mo.App.S.D.1978); French v. Tri-Continental Leasing Co., 545 S.W.2d 345 (Mo.App.S.D.1976). We agree with respondent that appellants' brief does violate Rule 84.04 for the reasons mentioned. However, we decline to punish appellants in the manner requested. The relatively few factual assertions which lack citation deal with uncontroverted facts. As for appellants' use of argumentation in their Statement of Facts, we assure respondent that we were not swayed by this misplaced advocacy. In any event, the cases in which the appellate courts of this state have invoked the harsh sanctions respondent now seeks have involved abuses more egregious than those present here. See Pemiscot County Memorial Hospital v. Missouri Labor and Industrial Relations Commission, 825 S.W.2d 61 (Mo.App.S.D.1992); Vodicka v. Upjohn Co., 869 S.W.2d 258 (Mo.App.S.D.1994); Kantel Communications, Inc. v. Casey, 865 S.W.2d 685 (Mo.App.W.D.1993). Motion denied.

Review of Summary Judgment

Summary judgment is appropriate where there is no dispute as to any material fact, and judgment is proper as a matter of law. The analysis of the present case falls within the second branch of this test, because the only dispute is whether the evidence which appellants now present would have been sufficient to satisfy the causation element of the medical malpractice tort; if so, then appellants have pleaded a submissible case of legal negligence.

Our review of a judgment summarily granted is essentially de novo. However, we do credit all evidence, and reasonable inferences therefrom, which tend to support the case of the party against whom summary judgment was granted. To prevail in a legal negligence action, a plaintiff must prove four elements: 1) the existence of an attorney-client relationship; 2) the attorney acted negligently or in breach of contract; 3) such acts were the proximate cause of plaintiff's damages; and 4) but for attorney's negligence, plaintiffs would have been successful in the underlying suit. Boatright v. Shaw, 804 S.W.2d 795, 796 (Mo.App.E.D.1990). The suit underlying the instant case was based on medical malpractice, an action which requires proof of negligence which caused a plaintiff's injury. Jines v. Young, 732 S.W.2d 938, 944 (Mo.App.S.D.1987). Thus, for appellants to prevail they must present that which was found lacking by this court in Tompkins v. Kusama: substantial evidence that Dr. Kusama's negligence caused or contributed to cause Steven's death.

As noted, appellants received a verdict after trial for their medical malpractice claim, and the reversal on appeal was premised exclusively on insufficient evidence of causation. Dr. Kusama conceded that his failure to document his withdrawal from Steven's care fell below the medical standard of care. Tompkins at 465. Causation in this case is perhaps best understood as comprised by two discrete components: the linkages between Dr. Kusama's nonfeasance and Steven's flight from the police, and between the former and the actual fatal car collision.

As is necessary in medical malpractice cases, respondent attempted to establish causation through the testimony of a medical expert witness, Dr. Resnik. It is his deposition testimony in this cause of action on which appellants rely for the proposition that causation could be established via expert testimony that Steven would not have fled from the police but for Dr. Kusama's negligence. Leaving aside for the moment whether appellants are correct in assuming such testimony establishes causation, there are serious questions as to whether Dr. Resnik, in fact, provides this testimony.

When a party relies on expert testimony to provide evidence as to causation when there are two or more possible causes, that testimony must be given to a reasonable degree of certainty. Wyckoff v. Davis, 297 S.W.2d 490, 494 (Mo.1957). When an expert merely testifies that a given action or failure to act "might" or "could have" yielded a given result, though other causes are possible, such testimony is devoid of evidentiary value. Bertram v. Wunning, 385 S.W.2d 803, 807 (Mo.App.E.D.1965); Shackelford v. West Central Electric Co-op, Inc., 674 S.W.2d 58, 62-3 (Mo.App.W.D.1984); Hunt v. Armour & Co., 136 S.W.2d 312, 315-16 (Mo.1939). A review of Dr. Resnik's deposition testimony reveals, on pages 35-36 and again at page 124, that he believes it is more likely than not that Steven would not have died if Dr. Kusama had not been negligent. On page 125, Dr. Resnik concedes he cannot say to a reasonable degree of medical certainty that Dr. Kusama's negligence caused Steven's death, though he does say at page 128 and again at pages 130-131 that fleeing from the police was caused by Dr. Kusama's negligence, to a reasonable medical...