Wolf v. Midwest Nephrology Consultants, PC.
| Decision Date | 19 April 2016 |
| Docket Number | WD 78606,WD 78619 |
| Citation | 487 S.W.3d 78 |
| Parties | Orson Wolf, Appellant–Respondent, v. Midwest Nephrology Consultants, PC., Respondent–Appellant. |
| Court | Missouri Court of Appeals |
Thomas Porto, Kansas City, MO, Counsel for Appellant–Respondent.
Marc Erickson, Kansas City, MO, Counsel for Respondent–Appellant.
Jack Hyde, Kansas City, MO, Co–Counsel for Respondent–Appellant.
Adam Davis, Kansas City, MO, Co–Counsel for Respondent–Appellant.
Before Division Three: James Edward Welsh, P.J., Thomas H. Newton, and Anthony Rex Gabbert, JJ.
Orson Wolf appeals from the circuit court's judgment in a wrongful death action, in which a jury awarded Wolf $459,429.02 for past economic damages but did not award noneconomic damages for the pain and suffering endured by the decedent prior to his death. Wolf appeals asserting that the circuit court erred in denying his motion for new trial because the failure to award past noneconomic damages was an abuse of discretion. Midwest Nephrology Consultants, Inc., cross-appeals asserting that the circuit court erred (1) in denying its motion for judgment notwithstanding the verdict because Wolf failed to establish the amount of damages with reasonable certainty and (2) in denying its alternative motion for new trial because the verdict was against the weight of the evidence and because the circuit court excluded relevant evidence and admitted speculative expert testimony. We affirm the circuit court's judgment.
On July 25, 2008, Carl Brooks went to Midwest Nephrology Consultants for a procedure known as a fistulagram. A fistulagram is used to diagnose problems with a port used to facilitate dialysis. At the time of the procedure, Brooks was 79 years old and had been on dialysis since 2006. During the procedure, Brooks was sedated. After the procedure and during the discharge process, a nurse left Brooks unattended while Brooks dressed himself. As Brooks was sitting on the bed attempting to put on his shirt, he fell and fractured his hip.
Brooks underwent surgery for his hip
at Research Medical Center. On July 29, 2008, he was transferred from Research to the Lifecare Center of Grandview. By August 13, 2008, Brooks developed a pressure ulcer on his coccyx (tailbone) and his heels from his immobility. He also became severely malnourished due to the pain pills affecting his appetite. Because his wounds were getting worse, Brooks was transferred to Kindred Hospital, a long-term/acute hospital. In response to the antibiotics he was taking, Brooks developed diarrhea which adulterated the ulcer on his coccyx. In December 2008, Brooks underwent a procedure to improve blood flow to his leg, a surgical procedure to close the wound on his coccyx, and skin grafts to his heels. Because of continued diarrhea and contamination of the surgical site, Brooks underwent a colostomy in February 2009 to divert the flow of feces away from the ulcer on his coccyx. Later in February, another attempt was made to close the wound on Brook's sacrum, which was unsuccessful. Thereafter, on March 19, 2009, Brooks was transferred to the Missouri Veteran's Home in Cameron, Missouri. Brooks died on April 19, 2009.
On January 7, 2011, Wolf filed a wrongful death suit Midwest Nephrology and others1 for the death of his half-brother, Carl Brooks. Wolf alleged that Brooks's fall at Midwest Nephrology, which resulted in a broken hip, the development of pressure ulcers
, and Brooks's eventual death, was the result of Midwest Nephrology's negligence in leaving Brooks unattended to dress himself following his sedation from the fistulagram procedure. After a trial, the jury returned a verdict in favor of Wolf in the amount of $459,429.02 for past economic damage but did not award noneconomic damages for the pain and suffering endured by Brooks prior to his death. Wolf appeals, and Midwest Nephrology cross-appeals.
In his only point on appeal, Wolf contends that the circuit court erred in denying his motion for new trial because the failure to award past noneconomic damages was an abuse of discretion. In particular, Wolf asserts that, because there was ample undisputed evidence regarding Brooks's pain and suffering between the time of his fall and his death, the circuit court abused its discretion in awarding damages for medical expenses without awarding damages for pain and suffering. We disagree.
We will reverse the circuit court's decision to deny a motion for new trial on the basis that a jury award is inadequate only if we find that the circuit court abused its discretion. Morgan Publications, Inc. v. Squire Publishers, Inc., 26 S.W.3d 164, 176 (Mo.App. 2000)
.
In support of his claim that he is entitled to damages for pain and suffering, Wolf relies upon a contention that “[g]enerally, an award of medical expenses alone without an award for pain and suffering is invalid and will be set aside ‘almost as a matter of course.’ ” Meier v. Schrock, 405 S.W.3d 31, 35 (Mo.App. 2013)
(quoting Davidson v. Schneider, 349 S.W.2d 908, 913 (Mo. 1961) ).2 Indeed, in Davidson, the Missouri Supreme Court noted this principle, but explained, “This of course is but a further application of the general rules regarding inadequate verdicts, the jury having found the issue of liability in favor of the plaintiff ‘may not give any verdict it pleases[ ; ]’ it is ... bound to award damages commensurate with the nature and extent of the injuries.” 349 S.W.2d at 913 (citations omitted). Although acknowledging the general principal that awards of medical expenses only without an award for pain and suffering are invalid, the Davidson court noted that the jury in the case before it was told that they “may” take into consideration numerous things in awarding general damages, including damages for pain and suffering. Id. In affirming the jury's verdict of $531.50, the Davidson court stated that “the jury could find from the conflicting evidence that the plaintiffs complaints were all subjective, that his injuries were in fact trivial or not serious in the end result and they have awarded him his actually established financial losses.” Id. The Davidson court concluded that “ ‘the verdict can be reasonably accounted for on the theory that the jury believed only enough of plaintiffs evidence to fix liability’ and having commensurately made an award there is no occasion for this court's interference.” Id. (citation omitted); see also
case makes clear that there is no bright line requiring reversal of cases where the jury awards medical expenses but does not award damages for pain and suffering. Such a disposition by the jury may be reversed but only if the verdict is determined to be inadequate. If there is a bright-line test at all, it is merely a bright-line that triggers an inadequate verdict analysis. Indeed, the parties do not cite any cases where the court reversed a verdict based solely on the fact that the jury awarded medical expenses and no damages for pain and suffering. In all the cases, the court conducted an inadequate verdict analysis.
In fact, this court in Wright v. Long, 954 S.W.2d 470 (Mo.App. 1997)
, dealt with this precise issue of whether the circuit court abuses its discretion in denying a motion for new trial when a jury awards damages for medical bills only despite extensive evidence of pain and suffering. Id. at 471. In that case, we emphasized, “ ‘[t]he day is past when Missouri appellate courts closely scrutinize amounts awarded by juries for personal injuries.’ ” Id. at 472 (quoting Bilderback v. Skil Corp., 856 S.W.2d 73, 76 (Mo.App. 1993) ). We explained, “[b]ecause of the special importance of weighing witness credibility and testimony in setting damages, the determination as to what amount of damages should be awarded in a personal injury action falls primarily within the discretion of the jury.” Wright, 954 S.W.2d at 472. Further, we noted that “[w]here the verdict reached by the jury has the approval of the trial court, its discretion is practically conclusive.” Id.
In Wright,
the jury awarded damages for medical bills only and did not include an award for pain and suffering and loss of enjoyment of life. Id. Plaintiff claimed that “the jury could not have believed that he was injured without believing that he incurred considerable pain and suffering.” Id. The Wright court concluded that the plaintiff's reasoning was “faulty” because “[t]he jury was under no obligation to believe the evidence of pain and suffering or loss of enjoyment of life[.]” Id. at 473. The Wright court found that the award of damages was within the evidence presented at trial and held that the circuit court did not abuse its discretion in denying the motion for new trial. Id. at 474.
Thus, to the extent that Wolf is contending that the circuit court should have granted a new trial solely because the jury awarded medical expenses only without an award for pain and suffering, his contention is without merit.3 As was the case in Wright,
the jury was under no obligation to believe the evidence of pain and suffering, and the award of damages was within the evidence presented at trial.
Moreover, we note that “Missouri does not recognize a common-law claim for wrongful death.” Sanders v. Ahmed, 364 S.W.3d 195, 203 (Mo. banc 2012)
. Indeed, “ ‘a claim for damages for wrongful death is statutory; it has no common-law antecedent.’ ” Id. (). Section 537.080.1, RSMo 2000, provides in relevant part:
Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in...
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