Williams v. Daus

Decision Date30 July 2003
Docket NumberNo. 25065.,25065.
Citation114 S.W.3d 351
PartiesMadonna J. WILLIAMS, Respondent, v. Arthur S. DAUS, M.D., Appellant.
CourtMissouri Court of Appeals

Charles H. Stitt, Gregory P. Forney, Shaffer Lombardo Shurin, Kansas City, for appellant.

William H. Pickett, David T. Greis, William H. Pickett, P.C., Kansas City, for respondent.

ROBERT S. BARNEY, Judge.

Dr. Arthur S. Daus ("Appellant") appeals from a jury verdict against him based on medical negligence related to two surgeries performed on Madonna J. Williams ("Respondent"). Appellant asserts five points of trial court error. The first three points essentially claim that Respondent failed to make a submissible case on some of the categories of damages awarded to Respondent. In Point IV, Appellant contends the trial court erred in denying his motion for mistrial after a juror acquired and related to jurors extra-judicial evidence which prejudiced Appellant. Lastly, in Point V, Appellant contends that the trial court erred in submitting a verdict director that failed to submit the ultimate facts necessary for a verdict in favor of Respondent.

The record shows that Respondent had a history of back trouble, including a bulging disk in the lumbar spine. In June of 1987, she complained of back discomfort and visited with Dr. Gregory Unruh, who later diagnosed her with lumbar strain. Between her initial visit and January of 1991, Respondent visited Dr. Unruh several more times regarding complaints of various injuries to her back and neck in the course of various household activities.

In March of 1991, Respondent complained of several days of severe back spasms caused by lifting at her employment. Dr. Unruh directed her to perform only light duties at work, but the following month Respondent once again complained of a work-related back injury which left her unable to get out of bed. Dr. Unruh directed her to stay off work for six to eight weeks, but by May of 1991 Respondent complained that the back pain continued to worsen, had progressed down her left thigh, and that she was unable to sleep or walk. This condition had not improved by August of 1991, and Respondent has not returned to work since.

In August of 1991, Appellant performed his first surgery on Respondent for nerve root compression. A cerebral spinal fluid leak subsequently was discovered which required a second surgery to correct the leak and remove additional bone. Respondent also developed a cyst after the surgery that caused her additional pain.

Respondent continued to experience persistent and considerable pain in her back and legs since the two surgeries, and eventually brought suit against Appellant for medical negligence.

At trial, Respondent presented testimony from medical experts regarding her history of back problems, the two back surgeries that took place in 1991, opinions on whether the surgery for nerve root compression was necessary, and evidence relating to Respondent's post-operative condition. She also testified regarding her pain and back troubles experienced both prior to and following the surgeries performed by Appellant.

Additional expert testimony provided an actuarial projection of the economic impact of her resulting condition after her surgeries, together with estimates of Respondent's lost income and lost household services, based upon her present medical condition and inability to return to work.

The jury returned a verdict against Appellant, and awarded Respondent $1 million in total damages: $200,000 for past economic and medical damages; $200,000 for past non-economic damages; $200,000 for future medical damages; $200,000 for future non-medical economic damages; and $200,000 for future non-economic damages. The trial court entered judgment consistent with this award, and denied Appellant's motions for judgment notwithstanding the verdict ("JNOV"), remittitur, and a new trial.

In Point I, Appellant contends the trial court should have granted JNOV regarding economic and medical damages because Respondent failed to establish what portion of her injuries were attributed to Appellant's conduct. Appellant argues that Respondent had a pre-existing and debilitating condition, and that the evidence did not establish with a reasonable degree of medical certainty what portion of her present injuries resulted from the surgery and what portion was due to her prior condition.

A trial court should sustain a motion for judgment notwithstanding the verdict "only when all of the evidence and the reasonable inferences to be drawn therefrom are so strong against the plaintiff's case that there is no room for reasonable minds to differ." Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445, 448 (Mo. App.2001). To survive this motion, a plaintiff must have made a submissible case, which occurs when the plaintiff has presented substantial evidence for every fact essential to liability. Id. at 448. "`Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide the case.'" Id. (quoting Love v. Hardee's Food Sys., Inc., 16 S.W.3d 739, 742 (Mo.App.2000)). On appeal, we view all evidence in the light most favorable to the prevailing party and disregard evidence and inferences that conflict with the verdict. Butts v. Express Personnel Services, 73 S.W.3d 825, 835 (Mo.App. 2002). We can only reverse the trial court's decision on appeal when there is a complete absence of probative facts to support the verdict. Id. "`A judgment notwithstanding the verdict is a drastic action, and it should only be granted when reasonable persons could not differ on a correct disposition of the case.'" Id. (quoting Coggins v. Laclede Gas Co., 37 S.W.3d 335, 339 (Mo.App.2000)).

`The elements of a claim for medical malpractice are: 1) an act or omission by the defendant that failed to meet the requisite medical standard of care, 2) negligent performance of that act or omission, and 3) a causal connection between the act or omission and the plaintiff's injury.'

Wuerz v. Huffaker, 42 S.W.3d 652, 655-56 (Mo.App.2001) (quoting Yoos v. Jewish Hosp., 645 S.W.2d 177, 183 (Mo.App. 1982)). "The nature of [Appellant's] duty to [Respondent] under the circumstances of this case must be established by expert medical testimony [and,] [o]nce the duty is established, whether [Respondent] was negligent under the evidence becomes a jury question." Lashmet v. McQueary, 954 S.W.2d 546, 551 (Mo.App.1997). "[I]f any one of [Respondent's] experts was qualified to testify to the standard of care and that the breach caused injury to the [Respondent], then [Respondent] has made a submissible case and it was error to set aside the judgment." Brooks v. SSM Health Care, 73 S.W.3d 686, 692-93 (Mo. App.2002).

"`Absolute certainty is not required in proving a causal connection between a negligent defendant's actions and the plaintiff's injury.'" Butts, 73 S.W.3d at 837 (quoting Coggins, 37 S.W.3d at 339). A submissible case is made if substantial evidence is presented that shows the injury is a natural and probable consequence of a defendant's negligence. Id. A jury also may infer causation from the circumstances of the case. Id. If the evidence leads to the logical conclusion that "`if certain things had been properly done certain results would not have occurred, and such results did occur, the evidence of causation is sufficient.'" Id. (quoting Parris v. Uni Med, Inc., 861 S.W.2d 694, 697 (Mo.App.1993)). "A causal connection is often established by showing facts and circumstances which `fairly suggest' negligence as the proximate cause in light of ordinary circumstances." Id. Absent compelling evidence which establishes the absence of causation, the causation question is for the jury. Butts, 73 S.W.3d at 837.

When viewing the facts in the light most favorable to the verdict and disregarding all unfavorable evidence, we find substantial evidence upon which the trial court could find that Respondent made a submissible case that Appellant's conduct was the "but for" cause of her increased pain, economic damages, and medical damages.

The record shows that, prior to the surgery, Respondent experienced ongoing low back pain and other symptoms which several physicians diagnosed as a lumbosacral strain. However, expert testimony also indicated that Respondent's lumbosacral strain was treatable and that such injuries generally heal over time and without the need for surgery. Dr. Watts testified that:

Q: Doctor, people who have lumbosacral strains, do they heal on their own?

A: [Dr. Watts]: The vast majority of them do, yes, sir.

Q: Can some end up with minimal but permanent disability?

A: Some can.

Q: Can one have a lumbar strain that's more severe and then you heal, but you have a greater disability, but you can still work?

A: Some people can heal to the point where they can go back to work, but then they still have chronic, nagging problems, which they work through.

Dr. Watts added that the best course of action for a lumbosacral strain is to let it heal with time:

Q: How do [lumbosacral strains or sprains] heal?

A: They heal with time just like any bruise ... it just takes time for the body to heal, just like a bruise would take.

* * *

[W]e know that the best way to allow these things to heal is just rest them and let Mother Nature deal with them. Mother Nature's pretty good at that.

Dr. Abrams expressed a similar opinion:

Q: When you have a sprain, does one heal over time in the sprained area?

A: [Dr. Abrams]: Generally speaking, yes.

Dr. Unruh also affirmed that such injuries generally recover from disabling lumbosacral strains:

Q: Doctor, with time, people get over lumbosacral strains that temporarily disable them normally, do they not?

A: As a general rule.

Q: Doctor, do people usually get over lumbosacral strains that...

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4 books & journal articles
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    • The Missouri Bar Damages Deskbook Chapter 21 Use of an Expert in Proving Damages
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