Wacker v. St. Francis Med. Ctr.

• Decision Date: 29 October 2013
• Docket Number: No. ED 99789.,ED 99789.
• Citation: Wacker v. St. Francis Med. Ctr., 413 S.W.3d 37 (Mo. App. 2013)
• Parties: Kathy WACKER and Bryan Wacker, Appellants, v. ST. FRANCIS MEDICAL CENTER, Defendant, Matthew Collard, D.O., Orthopedic Specialists, P.C., Respondents, Charles Pewitt, D.O., Bernard Burns, D.O., Orthopedic Associates of Southeast Missouri, P.C., Aaron Koonce, D.O. Southeast Missouri Hospital and Southeast Missouri Hospital Physicians, LLC, Defendants.
• Court: Missouri Court of Appeals

413 S.W.3d 37

Kathy WACKER and Bryan Wacker, Appellants,

v. ST. FRANCIS MEDICAL CENTER, Defendant,Matthew Collard, D.O., Orthopedic Specialists, P.C., Respondents,Charles Pewitt, D.O., Bernard Burns, D.O., Orthopedic Associates of Southeast Missouri, P.C., Aaron Koonce, D.O. Southeast Missouri Hospital and Southeast Missouri Hospital Physicians, LLC, Defendants.

No. ED 99789.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 29, 2013.

Matthew J. Padberg, St. Louis, MO, for appellant.

Mark A. Gonnermann, Clayton, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

Kathy and Bryan Wacker (collectively, “Appellants”) appeal from the judgment of the trial court granting summary judgment in favor of Dr. Matthew Collard and Orthopedic Specialists, P.C. (collectively, “Respondents”) in a medical malpractice action. Appellants argue the trial court erred in granting summary judgment becausethey established a prima facie case of medical malpractice. We reverse.

Kathy Wacker developed lymphedema following a hysterectomy with lymph node dissection in 1994. The lymphedema required physical therapy and medical monitoring for approximately ten years prior to 2008. In March 2008, Ms. Wacker began experiencing pain in her left leg and foot. She consulted with her primary care physician, co-defendant Dr. Charles Pewitt, her neurologist, co-defendant Dr. Aaron Koonce, and additional non-party physicians.

On June 4, 2008, Ms. Wacker saw Dr. Collard, an orthopedic surgeon. Ms. Wacker was referred to Dr. Collard by a friend. Dr. Collard obtained a medical history from Ms. Wacker; she reported left foot numbness, tingling, and redness. Dr. Collard performed a physical evaluation and a neurological examination of Ms. Wacker and diagnosed her with bilateral lower extremity lymphedema and left lower extremity neuropathy. He recommended a nerve conduction study and instructed Ms. Wacker to follow up with him once the study was completed.

Ms. Wacker underwent a nerve conduction study later that day and was diagnosed with polyneuropathy by Dr. Nasseem Shekhani. Dr. Shekhani instructed Ms. Wacker to follow-up with Dr. Collard. Because the diagnosis was not orthopedic in nature, Dr. Collard recommended that Ms. Wacker follow up with her neurologist.

On July 22, 2008, Ms. Wacker underwent a second nerve conduction study that also led to a polyneuropathy diagnosis. She continued to see numerous physicians regarding her condition.

On April 27, 2009, Ms. Wacker went to St. Francis Medical Center with complaints of left leg pain. She was diagnosed with phlegmasia cerulean dolens, a severe form of deep vein thrombosis. On May 3, 2009, she underwent an above-the-knee amputation of her left leg.

On October 25, 2011, Appellants filed a Petition alleging that the defendants failed to diagnose and treat Ms. Wacker's disease. With respect to Dr. Collard, Appellants alleged he failed to follow-up on or report the findings of the EMG/NCT he ordered, failed to be aggressive in his care and treatment in a patient that was at increased risk for vascular disease, and failed to refer Ms. Wacker to a vascular surgeon.

Appellants endorsed five expert witnesses, though only two of those experts, Dr. Samuel Ahn and Dr. Mark Ivey, offered an opinion on Dr. Collard's care. On January 18, 2013, Respondents moved for summary judgment, alleging Appellants had failed to offer expert testimony showing Dr. Collard deviated from the standard of care. In response, Appellants submitted an affidavit from Dr. Ivey stating Dr. Collard had failed to use the degree of skill and learning ordinarily used by members of Dr. Collard's profession. Respondents moved to strike Dr. Ivey's affidavit as untimely. The trial court heard oral arguments on the motion for summary judgment, granted the motion, and determined Respondents' motion to strike Dr. Ivey's affidavit was moot. This appeal follows.

Appellants argue the trial court erred in granting summary judgment because they established a prima facie case of medical malpractice. We agree.

We review the entry of summary judgment de novo. C–H Bldg. Associates, LLC v. Duffey, 309 S.W.3d 897, 899 (Mo.App. W.D.2010). To be entitled to summary judgment, a defendant must show either: (1) facts negating one or more elements of the plaintiff's claim, (2) that the plaintiff cannot and will not be able to prove one or more elements of their claim, or (3) that there is no material dispute about each fact necessary to establish an affirmative defense. Highfill v. Hale, 186 S.W.3d...