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06/21/83 CURTIS CEIL THOMAS v. IVAN MYERS

June 21, 1983

CURTIS CEIL THOMAS, PLAINTIFF-APPELLANT-RESPONDENT,
v.
IVAN MYERS, M.D., DEFENDANT-APPELLANT-RESPONDENT.



From the Circuit Court of the City of St. Louis; Civil Appeal; Judge Jack L. Koehr; Reversed and Remanded With Directions

Motion for Rehearing Overruled, Transfer Denied August 1, 1983.

Before Smith, P.j., Satz, Pudlowski, JJ.

The opinion of the court was delivered by: Satz

This is a medical malpractice case. Defendant Dr. Ivan Myer, is a doctor specializing in obstetrics and gynecology. In September, 1978, defendant was to perform a bilateral ovarian removal on plaintiff, Curtis Ceil Thomas. Defendant told plaintiff he was going to remove both her right and left ovaries and any accessory ovarian material present. According to defendant and the pathology lab report, defendant removed plaintiff's left and right ovaries and her left and right fallopian tubes. Six months later in March, 1979, plaintiff was admitted to the emergency room at Deaconess Hospital complaining of severe pain on the left side of her back. Several days later, Dr. Dwayne Bergmann, a urologist, performed exploratory surgery on plaintiff and removed a large mass of ovarian material which was tightly bound to the left ureter. *fn1 This mass was constricting plaintiff's urine flow and, thus caused the pain. Dr. Bergmann called in Dr. Seth Wissner, an obstetrician and gynecologist, to assist in the removal of this mass. At that time, both doctors thought this mass was the left ovary. According to Dr. Bergmann, plaintiff's expert witness, the pathology lab report confirmed the mass was the left ovary. Dr. Bergmann also testified, however, that the mass was found "retroperitoneal," i.e., behind the peritoneal cavity, and ovaries are normally located inside the peritoneal cavity. *fn2

Plaintiff sued defendant for negligence, alleging defendant failed "to remove the ovary *fn3 in accordance with his representation and alleged intention." A jury returned a verdict in favor of plaintiff for $32,000, and judgment was entered accordingly. The court denied defendant's motion for judgment in accord with his motion for directed verdict. The court, however, sustained defendant's motion for new trial and ordered a new trial. Plaintiff appeals from the grant of a new trial, and defendant cross appeals from the denial of his motion for judgment in accord with his motion for a directed verdict. These appeals have been consolidated. We reverse the trial court's denial of defendant's after trial motion for judgment and order the trial court to enter judgment in favor of defendant in accord with his motion for directed verdict.

The trial court sustained defendant's motion for a new trial on three grounds. For our purposes, only the first ground need be considered. *fn4 For its ground, the trial court stated:

'1. The Court erred in allowing Dr. Bergmann to testify by deposition in response to a hypothetical question which in part was based on an assumed fact never admitted into evidence[:] Assume that the defendant 'did not check' the pelvic area."

Defendant argues this ground is sufficient basis for the grant of a judgment in his favor. In support of this contention, defendant makes the following more specific arguments. In medical malpractice cases, the plaintiff bears the burden to prove the defendant's actions fell below the standard of skill and care exercised by the ordinarily careful and prudent physician, e.g., Williams v. Chamberlain, 316 S.W.2d 505, 510 (Mo. 1958). With few exceptions not pertinent here, this fact must be proved by expert medical testimony "'otherwise a jury may not know (or guess) whether the defendant's acts did or did not conform to the required standards.'" Hart v. Steele, 416 S.W.2d 927, 931 (Mo. 1967). In the instant case, plaintiff's proof of negligence rested upon the answer to a hypothetical question which assumed a fact not in evidence. This defect in the hypothetical question vitiated the probative effect of the answer and, thus, precluded plaintiff from making a submissible case. We agree.

As noted, plaintiff alleged that defendant was negligent because he failed "to remove the ovary in accordance with his representation and alleged intention." Plaintiff's submitted theory of negligence, however, was broader and more inclusive. Plaintiff's verdict directing instruction permitted the jury to determine whether defendant was negligent if he "failed to remove all the ovarian material on the left side" during the first operation. *fn5 To support her theory, plaintiff posed the following hypothetical question to her medical expert, Dr. Bergmann:

"Q. Assuming that a doctor does a tube and ovary removal and he does not do what you said he should do and what you advise and what should be done, in other words, he does not check to see whether there's a growth or cyst or ovary or injury in the area of the urinary tract, then under those circumstances with that assumption that he did not check, is that a failure to check to determine to discover those things I have described a failure to exercise that degree of skill, care and proficiency that is ordinarily exercised by an ordinarily careful and prudent physician under the same or similar circumstances?" [Emphasis added].

Dr. Bergmann answered: "Yes." In short, according to Dr. Bergmann, defendant was negligent because he "did not check" the surgical area in question.

A hypothetical question must be predicated on facts in evidence and must not assume facts not in evidence. Garrett v. Joseph Schlitz Brewing Co., 631 S.W.2d 652, 654 (Mo. App. 1982). However, rational inferences of fact drawn from direct evidence may form a sufficient basis for a hypothetical question. Winters v. Sears, Roebuck & Co., 554 S.W.2d 565, 573 (Mo. App. 1977). Plaintiff apparently assumes there was no direct evidence that defendant "did not check" the surgical area in question, *fn6 for plaintiff contends that circumstantial evidence establishes this fact. During redirect examination, Dr. Bergmann testified, "with reasonable medical certainty," the ovarian mass removed during the second operation was "palpable" at the time of the first operation, *fn7 although he could not estimate the size of the mass at the time of the first operation. If the mass was "palpable" and defendant failed to find it, plaintiff argues, it must be inferred that defendant "did not check" the surgical area in question. This inference, plaintiff reasons, provides sufficient proof for the assumption that defendant "did not check."

We find plaintiff's logic questionable, at best. *fn8 We need not, however, discuss this reasoning of plaintiff. The keystone of plaintiff's argument rests on the proof that the ovarian mass was palpable at the time of the first operation. Admittedly, on redirect examination. Dr. Bergmann testified that the mass was palpable. On his recross examination, however, he directly contradicted his redirect testimony and, thus, vitiated the provocative effect of his redirect ...


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