Zahorsky v. Griffin, Dysart, Taylor, Penner and Lay, P.C.

• Decision Date: 13 February 1985
• Docket Number: No. WD,WD
• Parties: Carroll ZAHORSKY, M.D., and Zahorsky Surgical Clinic, Inc., Plaintiffs-Appellants, v. GRIFFIN, DYSART, TAYLOR, PENNER AND LAY, P.C., and Alex M. Lewandowski, and Kathie and Phillip Brisciano, Defendants-Respondents. 33771.
• Court: Missouri Court of Appeals

Page 144

690 S.W.2d 144

Carroll ZAHORSKY, M.D., and Zahorsky Surgical Clinic, Inc. Plaintiffs-Appellants, v. GRIFFIN, DYSART, TAYLOR, PENNER AND LAY, P.C., and Alex M Lewandowski, and Kathie and Phillip Brisciano Defendants-Respondents.

No. WD 33771.

Missouri Court of Appeals Western District.

Feb. 13, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and

Denied April 2, 1985.

Application to Transfer Denied

May 29, 1985.

Stephen G. Mirakian, Kansas City, for plaintiffs-appellants.

James W. Benjamin, Kansas City, for Dysart, et al.

John M. Klamann, Kansas City, for defendants-respondents.

Before LOWENSTEIN, P.J., and MANFORD and BERREY, JJ.

BERREY, Judge.

Dr. Carroll Zahorsky and Zahorsky Surgical Clinic, Inc., (Zahorsky), plaintiffs in an action for malicious prosecution of a medical malpractice suit, appeal a verdict directed against them at the close of the plaintiffs' evidence and in favor of defendants Kathie and Phillip Brisciano, plaintiffs in the underlying action for medical malpractice; Alex Lewandowski, attorney for plaintiffs in the underlying action; and Griffin, Dysart, Taylor, Penner & Lay, P.C., legal firm with which Lewandowski was associated. Judgment affirmed.

Zahorsky contends the trial court committed reversible error by granting the defendants' motion for directed verdict in three respects. First, Zahorsky alleges the evidence was legally sufficient to sustain each requisite element of a cause of action in malicious prosecution. Second, the trial court erred in admitting, considering and relying upon evidence that Zahorsky, as defendant in the underlying action, had made a motion for directed verdict in the original medical malpractice action and the original trial judge denied the motion. And, third, the trial court applied an erroneous standard of law in determining the evidence was insufficient to support a prima facie showing of the elements of lack of probable cause and malice in pursuing the original medical malpractice action.

To maintain a cause of action in malicious prosecution, a plaintiff has the burden of proving the defendant instituted the original judicial proceeding without probable cause and with malice, the proceeding terminated in the plaintiff's favor, and the plaintiff was damaged. Stafford v. Muster, 582 S.W.2d 670, 675 (Mo.1979). In the instant case the trial judge determined that Zahorsky had failed to show lack of probable cause and that probable cause in the case of Brisciano v. Zahorsky indeed existed as a matter of law. The trial court also held that the plaintiff's evidence failed to show any of the defendants guilty of malice in bringing the original proceeding.

Before embarking upon a recitation of the relevant facts found within the voluminous record, it is necessary to set forth the light under which those facts will be viewed. Zahorsky cites Palermo v. Cottom, 525 S.W.2d 758, 762 (Mo.App.1975), and V.A.M.R. § 72.01, in asserting that the Court of Appeals must view the plaintiff's evidence in the light most favorable to the plaintiff, give him the benefit of all reasonable inferences therefrom, and disregard all evidence unfavorable to the plaintiff. However, this court is not instructed by precedent, and certainly not by Rule 72.01 as cited by Zahorsky to disregard all evidence unfavorable to the plaintiff's cause but only to disregard the defendant's evidence which is unfavorable to the plaintiff. Palermo v. Cottom, supra; Bauer v. Adams, 550 S.W.2d 850, 852 (Mo.App.1977). In application, appellate courts have found that the plaintiff's evidence, standing alone, is sufficient to show the existence of probable cause in a subsequent malicious prosecution action and have upheld verdicts directed in favor of the defendant (plaintiff in previous suit) on that basis. For example, in Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503 (1942), the court reversed the denial of defendant's motion for directed verdict at the close of all the evidence in stating, "The prima facie proof of probable cause made by plaintiff's own evidence was not overcome." Id., 166 S.W.2d at 514. See also : Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75, 79 (1939). A more recent case, though not concerning malicious prosecution, Stark v. American Bakeries Co., 647 S.W.2d 119, 121 (Mo. banc 1983), notes "the party with the burden of proof may be bound by uncontradicted facts elicited from his own witness on direct examination." "[O]therwise stated, if plaintiff's own evidence and the undisputed facts show any probable cause for the prosecution ... then plaintiff fails and the demurrers should have been sustained." Higgins v. Knickmeyer-Fleer Realty and Investment Co., 335 Mo. 1010, 74 S.W.2d 805, 812 (1934). (Emphasis added.) Thus, it is not, as Zahorsky asserts, "both a waste of this court's time and contrary to all existing law for this court to consider evidence unfavorable to the plaintiff's position that may have been present at this trial." Evidence of probable cause is necessarily adverse to the plaintiff but is nevertheless to be taken under consideration when introduced by the plaintiff.

The evidence considered in the light most favorable to plaintiff, Zahorsky, while giving plaintiff the benefit of all reasonable inferences, and the undisputed facts, are that on March 21, 1974, Kathie Brisciano visited the Zahorsky Surgical Clinic, Inc., to consult with Dr. Carroll Zahorsky regarding possible breast reduction surgery. Kathie had large breasts which had caused severe bra strap marks, back and neck pain. She was interested in reduction for functional purposes. The consultation lasted approximately one hour. Part of the session was spent by Zahorsky showing Kathie slides of women who had successfully undergone the surgery by Zahorsky's use of a "Strombeck reduction mammoplasty modified" technique. Zahorsky's consultation notes show he informed Kathie when she would resume normal activity and also informed her as to the scars and their locations. His notes do not refer to potential complications or risks, either generally or specifically, but do show Zahorsky advised Kathie that although she was "a bit borderline" for the modified Strombeck technique, he would recommend it for the best results. Zahorsky does not specifically remember educating Kathie about the possible complications associated with the particular surgery, but testified that he informed all patients about the complications.

Zahorsky scheduled Kathie's surgery, the first of an unanticipated three, for April 24, 1974, at the Trinity Lutheran Hospital in Kansas City, Missouri. Kathie was admitted to the hospital on April 22, 1974. Prior to surgery, she signed the hospital's standard consent form which read in part, "The nature and purpose of this procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications have been fully explained to me. No guarantee or assurance has been given by anyone as to the results that may be obtained." The consent form regarded the operation entitled "Bilateral Reduction Mammoplasty."

During the course of the surgery, complications arose with the use of the modified Strombeck technique on the right breast causing Zahorsky to resort to the use of the standard Strombeck technique on the left breast. Despite the complications, the surgery initially seemed a success. Kathie was satisfied with the size and shape of her breasts.

However, approximately one week after surgery, a complication known as necrosis, or dying tissue, developed in the healing process of the left breast. Zahorsky attempted to resolve the complication by cutting away the dead tissue, using tweezers and scissors, on an out-patient basis over the course of six to eight visits. Zahorsky was unable to use local anethesia during those sessions as it could have promoted further necrosis. When it became evident that anethesia was necessary to complete the debridement procedure, Kathie consented to a second surgery. Zahorsky performed the surgery on May 24, 1974, at Trinity Lutheran Hospital.

The debridement procedure resulted in Kathie's left breast being considerably smaller than her right breast. After numerous consultations, a third surgery was scheduled to correct the problem. Zahorsky could not specifically remember what he advised Kathie concerning the third surgery, but was "pretty certain" he spoke of enlarging both the left and the right breasts by placing implants in them to improve the symmetry. Zahorsky remembers informing Kathie that in his practice, there was "an incidence of about fifty percent or about one in two chances that she could get firm." He told Kathie that he was not satisfied with the scarring and the shape of the right breast and he wanted to revise it.

On August 11, 1974, Kathie was admitted to Trinity Lutheran Hospital after signing an admission consent form wherein the admitting diagnosis was described as "DEFORMITY OF BREAST SECONDARY TO REDUCTION MAMMOPLASTY WOUND DEHISCENCE LEFT BREAST." Prior to surgery, Kathie signed an operative consent form which described the surgery, in crowded longhand, as "Bil. Revision deformity breast & Reduction mamoplasty wound dehiscence." The form was signed in the presence of Nurse Virginia Swanson. Nurse Swanson does not remember Kathie and does not remember whether or not Kathie spoke to her. She testified that if a patient did not want to sign the consent form she would not force them. Dr. Gregory Politi, an anesthesiologist, testified from his notes that he saw Kathie the night before the surgery. He does not remember seeing her, nor does he remember their conversation. However, he stated that if there was confusion as to the surgery, he would have noted it. Zahorsky performed the third surgery and placed implants in both the right and the left breast.

On October 17, 1974, Kathie and Phillip consulted with attorney Alex Lewandowski...