Vititoe v. LESTER E. COX MEDICAL CENTERS, 22949.

• Decision Date: 23 August 2000
• Docket Number: No. 22949.,22949.
• Parties: Blanche VITITOE, et al., Plaintiffs-Appellants, v. LESTER E. COX MEDICAL CENTERS and John A. Duff, M.D., Defendants-Respondents.
• Court: Missouri Court of Appeals

27 S.W.3d 812

Blanche VITITOE, et al., Plaintiffs-Appellants, v. LESTER E. COX MEDICAL CENTERS and John A. Duff, M.D., Defendants-Respondents.

No. 22949.

Missouri Court of Appeals, Southern District, Division One.

August 2, 2000.

Motion for Rehearing or Transfer Denied August 23, 2000.

COPYRIGHT MATERIAL OMITTED

Robert W. Freeman, Springfield, for appellant.

Donald R. Duncan, Turner, Reid , Duncan, Loomer & Patton, Springfield, for Respondent Cox.

Ken. D. Rogers, David C. Vaughn, III, Fredrick, Rogers & Vaughn, Springfield, for respondent Duff.

Motion for Rehearing or Transfer to Supreme Court Denied August 23, 2000.

JOHN E. PARRISH, Judge.

Blanche Vititoe and Geneva Long (plaintiffs) appeal a defendants' judgment in an action they brought against Lester E. Cox Medical Centers (Cox), a Missouri corporation, and John A. Duff, M.D.¹ Count I was a wrongful death claim arising from the death of plaintiffs' father, Alfred A. Long. Count II was a claim for injuries allegedly caused by defective medical care Mr. Long received. Count III sought recovery for damages Mr. Long sustained between the time of his medical treatments and the time of his death. Plaintiffs also sought punitive damages from Dr. Duff (Count IV) and Cox (Count V) arising from alleged "aggravating circumstances." This court affirms.

In June 1995 Mr. Long was living with his daughter, Blanche Vititoe, in Springfield, Missouri, when he experienced difficulty breathing, looked pale and felt clammy. He was transported to Cox North, then transported to Cox South and admitted to the cardiac monitoring unit. He was a patient of Dr. Duff.

When Mr. Long was admitted to Cox South, a physician covering for Dr. Duff, Dr. Randolph, initially treated him. The following two days were over a weekend. Another physician who was covering for Dr. Duff, Dr. Dasovich, treated Mr. Long. Dr. Duff saw Mr. Long on Monday, June 5. Dr. Duff was asked at deposition if he advised Mr. Long that he had a heart attack during his June 2 hospitalization. He answered, "Yes." Dr. Duff was then asked when he thought he told Mr. Long that he had experienced a heart attack. Dr. Duff answered, "On his day of discharge." Dr. Duff did not remember if anyone else was present at that time.

Hospital records indicate Dr. Duff's principal diagnosis was "pneumonitis versus bronchitis." Four secondary diagnoses were listed, "congestive heart failure," "acute bronchitis," "history of colon carcinoma," and "diabetes mellitus without complication, type II." Dr. Duff discharged Mr. Long from the hospital on June 5. He saw Mr. Long for follow-up visits on June 14 and July 12.

On September 3, 1995, Mr. Long experienced the same symptoms he had experienced on June 2. He had difficulty breathing and was pale. An ambulance and two paramedics were dispatched. The paramedics were Judy Lodwick and Cheryl Rackers, employees of Cox. The paramedics loaded Mr. Long onto a cot and attempted to place the cot inside the ambulance. As they attempted to place the cot in the ambulance, its leg mechanism malfunctioned. The cot legs failed to fold under the cot to allow the cot to roll into the ambulance. While the paramedics were attempting to get the cot into the ambulance, the cot collapsed and fell. Mr. Long was strapped to the cot when it fell to the pavement. Firemen had arrived at the scene. They assisted in loading the cot into the ambulance. Mr. Long was then transported to Cox South.

An emergency room physician, Dr. Kenyon, believed Mr. Long was suffering from acute myocardial infarction; that he had experienced a heart attack. Dr. Dasovich was on call for Dr. Duff. Dr. Kenyon consulted with Dr. Dasovich. Dr. Dasovich examined Mr. Long and agreed with Dr. Kenyon's diagnosis. Dr. Dasovcich believed Mr. Long was suffering from acute, complicated myocardial infarction, hypotension and congestive heart failure. Mr. Long died later that day due to complications from the heart attack.

Plaintiffs' petition alleged that Dr. Duff was negligent in, among other things, failing to diagnose that Mr. Long had suffered a myocardial infarction prior to Mr. Long's admission to Cox Hospital on June 2, 1995; failing to advise Mr. Long that he had suffered a heart attack and needed treatment for the underlying cause of that condition; and failing to order appropriate tests to determine the extent of Mr. Long's coronary disease and the treatment needed for his condition.

The petition alleged that Cox was negligent in supplying a defective cot for use in transporting Mr. Long by ambulance. Plaintiffs alleged Cox's employees were negligent in allowing the cot to fall to the ground; that Cox's negligence directly caused or contributed to cause Mr. Long's death.

Point I — Closing Argument

Cox's attorney's closing argument included:

But last Tuesday about this time, I laid out you for sic what the case would be for and against Cox. And I told you the three things that would come against Cox, the three allegations, the three charges. And let me bring those down to the bare bones of what is being charged against Cox.

The first one is that we furnished a bad cot or that we didn't take care of our cots generally, this cot or all cots, or Cheryl and Judy were negligent—listen carefully—they were negligent because they believed the cot would stand on its own legs if one of them wasn't squeezing and holding squeezed that foot end release lever. They believed that.

The allegation is that that's negligence.

Then in addition to one or the other of those first two, the case against Cox would come down to the collapsing of the cot—listen carefully now—directly caused or directly contributed to cause Alfred Long's death.

Now since last Tuesday, there is a fourth thing. And that fourth thing is that we, Cox Medical Center, should have known that this was going to happen. We could have known that this was going to happen, and therefore, we were completely indifferent or consciously disregarded safety. That's what has been brought against Cox.

Let me be perfectly clear with you. Plaintiffs have brought this last allegation to try to make a verdict beyond—

The trial judge interrupted Cox's attorney stating that a juror desired a break and declaring a recess. Following the recess, Cox's attorney continued.

Thank you, Your Honor. I believe what I was doing, what I was saying was that this fourth allegation that we are now facing, that we were completely indifferent, or consciously disregarded safety, is an effort to get a verdict higher than the actual losses. And it's an effort to punish Cox. That's what that's for.

Let me make one other thing clear, and that is these allegations that I've outlined for you are the only allegations that you can consider. The reason I say that is because there have been some other critical—

Plaintiffs' attorney interrupted stating, "I object to any reference of things not being considered. The jury considers everything that came in on the evidence." The trial court overruled the objection stating:

The jury has heard the evidence and heard my ruling on the objections, and they know what to exclude, and have been instructed to only consider those facts that are still alive in the trial.

So with that admonition, I'll let you continue and overrule the objection, Mr. Duncan.²

Cox's attorney continued:

Critical comments related to the hospital that do not relate to those things; that is, we are not doing our maintenance right. Cheryl and Judy were negligent. And that directly caused or directly contributed to cause his death, or that we were completely indifferent, and completely disregarded safety. Anything other than that that's critical of the hospital that has come into this case—

Plaintiffs' attorney asked to approach the bench. At a bench conference he objected to Cox's attorney "making any implication that these jurors are supposed to disregard any fact." He argued that matters not withdrawn by means of jury instruction were relevant and objected to Cox's attorney "trying to instruct the jury at this point to disregard anything in the evidence."

The trial judge told the attorneys he had instructed the jury that they could consider all the evidence except what had been withdrawn because he had sustained objections;³ that Cox's attorney could argue whether something was or was not relevant, "just like you arguing certain inferences." The objection was overruled.

Cox's attorney continued, "I believe what I was saying was that criticisms indirectly of Cox that don't relate to allegations that are made against us in this case, in my opinion, are not relevant to what you have to do." He then discussed various aspects of the evidence that had been presented without further objection by plaintiffs.

Point I asserts the trial court erred in overruling plaintiffs' objections to statements made by Cox during closing argument "because such statements ... were misstatements of the applicable law and improper oral withdrawal instructions which attempted to withdraw from the jury's consideration relevant evidence ... and attempted to modify the court's verdict director against defendant Cox Hospital."⁴

As explained in Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 925 (Mo. banc 1981), "The trial court is possessed of broad discretion in the area of closing arguments, not likely to be disturbed on appeal." Trial counsel is afforded wide latitude in closing argument in arguing facts and drawing inferences from the evidence. Id. at 926, citing Arroyo v. Keller, 433 S.W.2d 584, 588 (Mo.App.1968). This court finds no abuse of discretion by the trial court in overruling plaintiffs' objections to Cox's oral argument. Point I is denied.

Point II — Supplementing Discovery

Point II asserts the trial court erred in denying plaintiffs' objections to Cox being permitted to elicit trial testimony from Jerry Doris, Terry Cline and Kevin Smart, regarding examinations of the cot used in transporting Mr. Long to Cox South...