Wilson v. Lockwood
| Decision Date | 27 May 1986 |
| Docket Number | Nos. WD,s. WD |
| Citation | 711 S.W.2d 545 |
| Parties | Clayborn Matthew WILSON, b/n/f Mary Wilson, Mary Wilson and Clay Wilson, Respondents-Appellants, v. Gary F. LOCKWOOD, M.D., et al., Appellants-Respondents. 37075, WD 37071. |
| Court | Missouri Court of Appeals |
Thomas W. Wagstaff, James Bandy, Blackwell, Sanders, Matheny, Weary, & Lombardo, Kansas City, for Gary F. Lockwood.
James E. Patterson, Jr., and Max Von Erdmannsdorff, Von Erdmannsdorff & Zimmerman, Kansas City, for appellants/respondents.
Paul H. Niewald, Terry L. Karnaze, Niewald, Waldeck, Norris & Brown, Kansas City, for Hollister, Inc.
Before LOWENSTEIN, P.J., and TURNAGE and BERREY, JJ.
The infant plaintiff brought this suit by his next friend, his mother, on a medical malpractice negligence theory against defendant-appellant Dr. Lockwood, who performed a circumcision on the child at defendant St. Luke's Hospital. The child's parents also brought a separate count against the doctor, the hospital and the manufacturer. In removing the foreskin, Dr. Lockwood used a Plastibell device manufactured by defendant Hollister, Inc. The device was supposed to fall off after eight days. However, it did not and as a result, the child was injured.
The hospital was sued in a count alleging negligence in failing to warn the parents of the risks involved. The count against Hollister sounded in strict products liability and negligence. The trial court granted St. Luke's and Hollister's motions for directed verdict at the close of plaintiffs' evidence. The Wilsons appeal these rulings. Dr. Lockwood appeals a jury verdict awarding $200,000 to the child and $100,000 to the parents, reduced by ten percent attributed to their fault. The Wilson's appeal as to St. Luke's and Hollister will be taken up first.
As to whether plaintiffs made a submissible case, review is in light of the evidence and inferences most favorable to the plaintiffs. Mercer v. Thornton, 646 S.W.2d 375, 376 (Mo.App.1983). The evidence was Hollister makes five sizes of the Plastibell device. The doctor chooses the correct size. The device, a clear plastic ring, is positioned on the front end of the glans or tip of the penis. The foreskin is then retracted around the device and a ligature (surgical string) is looped around the foreskin covering the device and pulled tight. The tightening cuts off circulation to the foreskin above the ligature, and excess tissue above the ligature is then removed. The Plastibell device fits on the head of the penis like a cap, with the very tip of the glans exposed. Normally, the device falls off within five to eight days.
The child was born on February 15, 1983. Dr. Lockwood performed the circumcision on February 18, 1983. The Plastibell device had to be surgically removed on March 11, 1983. Apparently the device did not fall off but slipped onto the shaft of the child's penis where it became entrapped. The evidence was the device had a strangling effect on the shaft as the penis grew, making a circumferential scar. The expert testimony for the Wilsons was either the device used by the doctor was too large and slipped or the device was improperly positioned and excessive tension caused it to slip onto the shaft.
Prior to the circumcision, someone at the hospital gave the mother a brochure and told her the device would fall off by itself. The parents had consented to the circumcision. The Hollister brochure, complete with pictures, stated the following:
Now that your baby has been circumcised ...
1. The plastic rim usually drops off 5 to 8 days after circumcision. No special dressing is required, and the baby can be bathed and diapered just as if he had not been circumcised. NOTE: A dark brown or black ring encircling the plastic rim is perfectly natural. This will disappear when the rim drops off.
2. The result is a clean, well-healed line of excision. Be sure to notify your doctor if healing does not proceed as he described. Notify him immediately if you should notice any unusual swelling, if the plastic ring has not fallen off within 8 days, or if the ring has slipped onto the shaft of the penis.
On February 19, the day the mother and child were released, the mother showed the instructions and photographs to the father. The mother had looked at the pictures and "glanced" at the instructions. The father read the instructions set out above. The mother said she knew the device was to fall off and was not to move onto the shaft. The Wilsons did not take the brochure home. Three days later the mother took the child to St. Luke's for tests totally unrelated to the circumcision.
After the eighth day the father and mother were "really antsy" because the device had not fallen off. They did not call Dr. Lockwood. They looked at the Plastibell ring every day starting about eight days after the circumcision. Approximately two weeks after the circumcision the father called St. Luke's. His testimony was the person he talked with told him not to worry about it since some devices stay on longer than others. By March 11, the device still had not fallen off. The child had not been sleeping or eating properly and cried constantly. The mother took the child to a pediatrician, who referred her to another doctor. On this date the device was surgically removed.
The result has been a grooved or depressed and discolored area on the penis. An examination afterwards by a Dr. Mani resulted in an opinion that plastic surgery was not presently recommended, and there was nothing functionally wrong with the child "at this stage." The doctor said as the child grew older, the "locker-room situation" may create psychological problems, and corrective surgery might then be necessary.
In their petition, the Wilsons claim the Plastibell device manufactured by Hollister was in a defective condition and unreasonably dangerous, causing a deformed and disfigured penis on the infant. They also claim Hollister negligently designed the device and provided confusing and inadequate instructions regarding use and application by medical personnel.
The only evidence as to Hollister's liability under any theory asserted by the Wilsons was the testimony of a Dr. Guthrie. He said it was difficult for a surgeon to select the proper size of the Plastibell ring. He testified another danger of the device is infection. Moreover, the ring can be pulled toward the shaft if the skin is tied too tightly to the plastic ring. Guthrie said the instructions to physicians did warn of these potential dangers.
The plaintiffs' brief cites no relevant authority or other evidence to support their contention that they made a submissible case against Hollister. The brief is also very confusing as to what theories of recovery the Wilsons are actually asserting against Hollister. First, they contend Hollister sold the device in a defective and unreasonably dangerous condition. Then they contend "even if plaintiffs had not made a case of strict liability in tort," the warning leaflet did not adequately inform the parents of potential dangers that could result if the ring did not fall off. Matters are further confused by the plaintiffs' motion for a new trial, which cites error in directing a verdict for Hollister, claiming only that the Wilsons made "a submissible case of negligence" against Hollister. By contrast, the points on appeal sound in negligence and strict liability. Despite the preservation problem, this court will consider the point.
The only factor which even remotely suggests any kind of liability on Hollister's part is that the device slipped sometime after the child left the hospital and ultimately caused harm to him. Even so, there is just no evidence in this record on which the trial court could have submitted to the jury the question of Hollister's liability based on negligence. Likewise, there was no evidence to support a strict liability claim under § 402A of the Restatement (Second) of Torts. The Wilsons made no showing that would even tenuously satisfy the MAI No. 25.04 requirements that either the Plastibell device was "in a defective condition unreasonably dangerous when put to a reasonably anticipated use" or the boy was "damaged as a direct result of such defective condition." See MAI No. 25.04; see also Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969)
Similarly, under what is characterized as a strict liability "failure to warn" cause of action, the Wilsons did not show Hollister failed to "give an adequate warning of the danger" attendant to use of the product. See MAI No. 25.05. The directions and warnings on use to physicians were adequate, and the warning to parents, here both read and understood, cannot as a matter of law be deemed inadequate. The judgment as to Hollister is affirmed.
As to the directed verdict for St. Luke's the evidence favorable to the plaintiffs was prior to the circumcision, someone brought the Hollister brochure to the mother in her room, gave it to her, and explained, Janice James, a registered nurse, testified St. Luke's records failed to show whether anyone at the hospital gave the brochure to the mother or whether the Wilsons were apprised by the hospital of the propensities of the Plastibell device. She said even if the warning pamphlet had been given to the mother, someone should have explained it to her. James testified she thought the instructions on the brochure were adequate. However, a report she prepared regarding the adequacy of instructions was based on her assumption the Wilsons had been shown but had never been given the brochure.
On direct examination, plaintiffs' counsel also asked James if the mother signed the consent form for the circumcision with an informed...
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