Wilson v. P.B. Patel, M.D., P.C.
| Decision Date | 16 May 2017 |
| Docket Number | No. SC 95890,SC 95890 |
| Citation | 517 S.W.3d 520 |
| Parties | Josephine WILSON, Appellant, v. P.B. PATEL, M.D., P.C., and Rohtashav Dhir, M.D., Respondents. |
| Court | Missouri Supreme Court |
Wilson was represented by H. William McIntosh of The McIntosh Law Firm in Kansas City, (816) 221-6464.
The medical providers were represented by Justin D. Fowler and B.K. Christopher of Horn, Aylward & Bandy LLC in Kansas City, (81) 421-0700.
Josephine Wilson brought a medical malpractice cause of action against defendants Rohtashav Dhir, M.D., and his practice group, P.B. Patel, M.D., P.C. The jury returned a verdict in favor of the defendants, and Wilson appeals. She claims the trial court abused its discretion by refusing to give her proposed jury instruction withdrawing evidence of her alleged informed consent to the medical procedure. Because informed consent was irrelevant to the case as pleaded and could only confuse the jury in its determination of the facts, the judgment is reversed and the case is remanded to the trial court.
Josephine Wilson sought treatment beginning in 2000 for acid reflux
and trouble swallowing. In 2004 and 2005, she underwent balloon dilation of her esophagus, which provided some long-term relief for her acid reflux. An ear, nose, and throat specialist diagnosed Wilson in the fall of 2009 with chronic pharyngitis (inflammation of the throat lining) and globus sensation (subjective feeling of something stuck in the throat causing difficulty swallowing but absent physical findings to suggest an abnormality). The specialist referred Wilson to Dr. Rohtashav Dhir, a gastroenterologist, for further consultation and evaluation.
Dr. Dhir first examined Wilson on December 2, 2009, and prescribed a medication for her acid reflux
. He also scheduled an esophagogastroduodenoscopy ("endoscopy") for December 8 at an outpatient clinic. Dr. Dhir's notes from the December 2 appointment state Wilson understood the procedure and conclude "[s]he might need dilation of the esophagus depending on the findings."
On December 8, 2009, Dr. Dhir performed the endoscopy
on Wilson to examine her esophagus and stomach down to her duodenum (the first section of the small intestine). He found gastritis (inflammation or irritation of the stomach lining) and a single polyp near the top of Wilson's esophagus, which he removed with forceps. Dr. Dhir's operative report stated that her "GE junction [where the stomach meets the esophagus] and the esophagus appear to be normal." According to Dr. Dhir's testimony, the procedure revealed "nothing in the duodenum that would stimulate any further action on my part or important to be noted."
Although the endoscopy
revealed nothing abnormal, Dr. Dhir decided to perform an esophageal dilation: a procedure using a large, rubbery bore dilator to stretch the esophagus. He felt for resistance as he manually pushed the dilator down Wilson's esophagus, and later testified the "dilation went smooth" and he felt nothing other than the expected mild resistance. As he withdrew the dilator, Dr. Dhir noticed the guidewire was kinked. He performed another endoscopy and observed a tear in Wilson's esophageal lining. Dr. Dhir concluded the tear had been caused by the dilation, as it is one of the known risks of the procedure.
A cardiothoracic surgeon repaired the esophageal tear, which necessitated opening Wilson's chest wall, spreading her ribs, and collapsing one of her lungs to reach her esophagus. The surgeon noted no abnormalities with her esophagus other than the tear. Wilson testified she has experienced constant pain in her ribs, nerves, and muscles since the surgery.
Wilson sued Dr. Dhir and his practice group, P.B. Patel, M.D., P.C., for medical malpractice. She argued the esophageal dilation was medically unnecessary and below the standard of care because the endoscopy
revealed she had a normal esophagus. Dr. Dhir defended his decision to perform the dilation despite the normal endoscopy findings because he thought it would help her dysphagia (difficulty swallowing). He also explained that abnormal esophageal tissues sometimes occur in the outer layers of the esophagus, which are not visible with endoscopy.
Prior to the endoscopy
, Wilson signed a form titled "Consent to Treatment and Rendering of Other Medical Services." The form confirms the patient's doctor "has discussed the nature and purpose of the surgery/medical procedure and the risks and benefits associated with it." Wilson's theory for the case alleged Dr. Dhir was negligent in performing a medically unnecessary empiric dilation (dilation without a finding of stricture or abnormality) because the endoscopy showed normal findings. She did not present a claim for lack of informed consent, and Dr. Dhir did not raise informed consent as an affirmative defense. Nevertheless, Dr. Dhir's counsel stated in opening argument that Wilson had signed an "informed consent" that read: Wilson's counsel did not object to the mention of "informed consent."
Later during the trial, Dr. Dhir's counsel cross-examined Wilson about the "informed consent." Again, Wilson's counsel did not object and, on redirect, Wilson stated the form was one of many she was given to sign immediately before the endoscopy
without sufficient time to read closely. During Dr. Dhir's direct examination, his counsel inquired if patients are asked to sign an "informed consent" form. Wilson's counsel objected on the grounds of relevancy, but the trial court overruled the objection.1 Further, Dr. Dhir characterized esophageal perforation (tearing ) as a "known complication" of esophageal dilation.
After all the evidence had been presented, Wilson's counsel requested a withdrawal instruction to remove "informed consent to the esophageal dilation" and discussion about eosinophilic esophagitis
(a condition, referred to as "EoE," in which the person experiences an allergic reaction to food, which can cause inflammation of the esophagus) from the jury's consideration. The trial court seemed to agree at first that informed consent was a false issue but said it did not think a withdrawal instruction was warranted because Wilson had failed to timely object:
But the court later indicated confusion as to whether informed consent was an issue:
The trial court refused the instruction, and the case was submitted on the theory Dr. Dhir was negligent in performing the empiric dilation. Dr. Dhir's counsel stated in closing argument that Wilson "was aware and she agreed that there was a possibility that Dr. Dhir might do a dilation upon her" and suffered a "known complication." Wilson's counsel did not object.
The jury asked to see "a copy of the consent form that Ms. Wilson signed before the procedure with Dr. Dhir" during deliberations, which was provided to them. The jury returned a verdict for Dr. Dhir and P.B. Patel, M.D., P.C. Wilson appeals.2
A trial court's refusal of a withdrawal instruction will not be reversed absent an abuse of discretion. Swartz v. Gale Webb Transp. Co. , 215 S.W.3d 127, 129-30 (Mo. banc 2007). A trial court abuses its discretion when a ruling "is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration." Dodson v. Ferrara , 491 S.W.3d 542, 552 (Mo. banc 2016).
Wilson claims the trial court erred in refusing her proposed jury instruction withdrawing evidence of her alleged informed consent. She further alleges the trial court erred in permitting Dr. Dhir to argue Wilson consented to the esophageal dilation.
Trial courts have the discretion to give withdrawal instructions "when evidence on an issue has been received, but there is inadequate proof given for final submission of the issue to the jury." Trimble v. Pracna , 167 S.W.3d 706, 716 (Mo. banc 2005). Withdrawal instructions may also be given if a false issue is raised during trial. In Sampson v. Missouri Pacific Railroad Co. , 560 S.W.2d 573, 584 (Mo. banc 1978), this Court held that allowing the jury to consider evidence of workers' compensation payments in a negligence case creates a "danger that a false or foreign issue will thereby be raised and distort the contention of the parties as pleaded."
Such evidence has nothing to do with either liability or damages. There are, however, instances where for reasons of inadvertence or error, or intervention, or by agreement or stipulation, or as here, plaintiff's practical inability otherwise to prove the amount of medical expense, evidence indicating the payment of workmen's compensation benefits is, in some manner, placed before the...
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