Wicklund v. Handoyo, ED 85595.

• Decision Date: 31 January 2006
• Docket Number: No. ED 85595.,ED 85595.
• Parties: Carl WICKLUND, Plaintiff/Respondent, v. Frans HANDOYO, M.D. and Binwant Singh, M.D., Defendants/Appellants.
• Court: Missouri Supreme Court

181 S.W.3d 143

Carl WICKLUND, Plaintiff/Respondent, v. Frans HANDOYO, M.D. and Binwant Singh, M.D., Defendants/Appellants.

No. ED 85595.

Missouri Court of Appeals, Eastern District, Division Two.

November 1, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 7, 2005.

Application for Transfer Denied January 31, 2006.

COPYRIGHT MATERIAL OMITTED

J. Thaddeus Eckenrode, Seibel & Eckenrode, P.C., St. Louis, MO, for appellant.

David M. Zevan, Kevin J. Davidson, David M. Zevan and Associates, P.C., St. Louis, MO, for respondent.

KENNETH M. ROMINES, Judge.

Defendants/Appellants Drs. Frans Handoyo, M.D. and Binwant Singh, M.D. (collectively "Appellants"), appeal from the trial court's denial of their post-trial motions for a directed verdict and judgment notwithstanding the verdict ("JNOV"), or in the alternative, for a new trial, after a jury found them liable in negligence for the death of Plaintiff/Respondent Carl Wicklund's ("Mr. Wicklund" or "Plaintiff") son, David Wicklund ("David"), and awarded Mr. Wicklund $675,000. The trial court entered its judgment on 2 September 2002.

FACTUAL BACKGROUND

The evidenced adduced at trial, viewed in the light most favorable to the verdict, reveals that on 28 June 1999, David was admitted to SouthPointe Hospital ("SouthPointe") for psychiatric treatment. While under the care of SouthPointe, David was also treated for abdominal pain, and several medical tests were run to determine the cause of the problem. During his treatment at SouthPointe, David's medical condition worsened, and he was admitted to the intensive care unit on 2 July 1999. Subsequent tests revealed that David had a major colon infection, and he was placed on a respirator that evening. Nonetheless, David's condition continued to worsen, and he died approximately five hours later.

In April of 2001, David's parents, Carl and Vivian Wicklund,¹ filed a medical malpractice and wrongful death action against several defendants involved in the medical treatment of their son during his stay at SouthPointe, including Drs. Handoyo and Singh. The Wicklunds subsequently amended their petition, and named several additional defendants in the action. In particular, the Wicklunds alleged that the doctors involved in diagnosing and treating David's medical symptoms failed to adequately monitor David's abdominal condition while he was under their care. During the course of discovery, however, several of the original defendants were dismissed from the case, and at the time of trial, only Drs. Handoyo and Singh remained.

At trial, Mr. Wicklund presented the expert testimony of Dr. Mark Cooperman ("Dr. Cooperman"), a board certified physician in general surgery. Dr. Cooperman offered testimony, first, regarding whether Drs. Handoyo and Singh deviated from the proper standard of care in their treatment of David, and second, whether their alleged misdiagnosis caused David's death. Dr. Cooperman testified that both doctors' treatment fell below the proper standard of care. In particular, Dr. Cooperman testified that since David's colon infection was not responding to antibiotics, his doctors should have sought a surgical consult. Dr Cooperman also testified that David should have undergone surgery to remove the infected portion of his colon, and further, that there was a good chance surgery would have saved his life. However, Dr. Cooperman also admitted that there was a small chance David might not have survived surgery, regardless of when it occurred. Specifically, Dr. Cooperman testified that David's primary physician, Dr. Singh, failed to properly monitor David, get appropriate consultations, and react to nurses' calls that David's condition was worsening. Dr. Cooperman summarized that these failures, especially the failure to consult a surgeon, contributed to David's death on 3 July 1999.

During the course of direct examination at trial, Mr. Wicklund's counsel asked Dr. Cooperman to define the proper standard of care for a patient such as David, to which he answered, "the strict definition of standard of care is what a reasonable and prudent physician would do in similar circumstances." However, Dr. Cooperman went on to say, "[w]hat I think the standard of care really means is what's sensible care, what's good for the patient."

Following the close of all the evidence, counsel for Drs. Handoyo and Singh filed a motion for a directed verdict, which the court denied. After the court's ruling, the parties held a jury instruction conference. At the conference, defense counsel offered a verdict director that allowed the jury to apportion fault for David's death among Drs. Handoyo and Singh, as well as two other doctors who were originally named as defendants in the Wicklunds' petition, but were never served as party defendants: Dr. Jason Lee, M.D. and Dr. Tshishwaka Kayembe, M.D. However, the trial court refused to instruct the jury that it could apportion fault to Drs. Lee and Kayembe. Therefore, the court instructed the jury to apportion fault, if any, among only Drs. Handoyo and Singh. The jury subsequently found for Mr. Wicklund, and awarded him damages in the amount of $675,000. In particular, the jury found Dr. Handoyo 20% at fault, and ordered him to pay $135,000, and Dr. Singh 80% at fault, and ordered him to pay $540,000. Drs. Handoyo and Singh subsequently filed a motion for JNOV, or in the alternative, for a new trial. The trial court denied all post-trial motions and this appeal followed.

Drs. Handoyo and Singh bring three points of error. First, they claim that the trial court erred in denying their post-trial motions because the plaintiff failed to establish that Appellants deviated from the appropriate standard of care in that Mr. Wicklund's expert, Dr. Cooperman, failed to properly state the appropriate standard of care during his direct examination. Second, Appellants claim that the trial court erred in denying their post-trial motions because the plaintiff failed to establish the essential element of causation in his negligence claim in that the record does not demonstrate that, but for the doctors' failure to request a surgical consult, David would have lived. Third, Appellants claim that the trial court erred in refusing to instruct the jury that it could apportion fault to Drs. Lee and Kayembe, who participated in David's care and were named in the original petition, but were never served, and were dismissed from the suit prior to trial. We affirm.

DISCUSSION

I. The Standard of Care

In their first claim of error, Appellants argue that the trial court erred in denying their motions for a directed verdict and JNOV because the plaintiff failed to establish that they deviated from the appropriate standard of care in that Mr. Wicklund's expert, Dr. Cooperman, failed to properly state the appropriate standard of care during his direct examination.

We note initially that our review of a trial court's denial of a motion for JNOV is whether the plaintiff has made a submissible case. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo.App. E.D.2000). In order to make a submissible case, a plaintiff must present "substantial evidence for every fact essential to liability." Id. Whether evidence is substantial, and whether inferences drawn are reasonable, are questions of law. Id. In determining whether a plaintiff has made a submissible case, we review the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the plaintiff. Id. Accordingly, we will not overturn a jury verdict unless there is a complete absence of probative facts to support it. Id. Where reasonable minds can differ on the question before a jury, we can not disturb the jury's verdict. Id. Since a judgment notwithstanding the verdict is a drastic action, it should only be granted when reasonable minds could not differ on a correct disposition of the case. Id.

A plaintiff in a medical malpractice case must introduce evidence from an expert witness establishing that the defendant failed to meet the requisite standard of care. Boehm v. Pernoud, 24 S.W.3d 759, 762 (Mo.App. E.D.2000). However, the expert may not simply testify that the defendant's conduct "did not measure up to the standards of an individual member of the profession." Id. Rather, the expert must testify that the defendant failed to meet the "standards of the profession at large," in order to make the plaintiff's case. Id. Missouri's approved jury instruction defines negligence as "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession," MAI 11.06 (1990), and this statement must appear in the expert's testimony. Ladish v. Gordon, 879 S.W.2d 623, 634 (Mo.App. W.D.1994).

In this case, Mr. Wicklund's expert, Dr. Cooperman, testified to the following at trial regarding the relevant standard of care: "the strict definition of standard of care is what a reasonable and prudent physician would do in similar circumstances. What I think that standard of care really means is what's sensible care, what's good for the patient."

In their brief, Drs. Handoyo and Singh take issue with both portions of Dr. Cooperman's testimony regarding the standard of care. First, they argue that his "strict definition" deviated from MAI 11.06, and thus, was not sufficient. Second, they argue that Dr. Cooperman's statement on what he thinks that standard of care means likely confused the jury because it did not know whether he based his subsequent opinions on the "strict definition" of the standard of care, or on his own interpretation. Furthermore, they argue that this alternative definition was not sufficient because it did not use the magic words "reasonable" and "prudent."

Although we agree that Dr. Cooperman could have stated the standard of care, as required by MAI 11.06, with greater precision, we do not agree that plaintiff wholly failed to establish this...