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August 24, 1993


Appeal from the Circuit Court of St. Louis County. Hon. Bernhardt C. Drumm, Jr.

Lawrence G. Crahan, Judge Carl R. Gaertner, Judge.

The opinion of the court was delivered by: Crahan

Plaintiff Linda Nachtweih ("Plaintiff") appeals from a judgment entered pursuant to a jury verdict in favor of Defendant L.M. Maravilla, M.D. ("Defendant") in a negligence action seeking damages for failure to diagnose her pregnancy. The sole issues on appeal are whether the trial court erred in allowing a deposition to be read to the jury pursuant to Rule 57.07(a)(2) and, if so, whether the error was sufficiently prejudicial to warrant a new trial. We hold that admission of the deposition was error but was not sufficiently prejudicial to warrant a new trial.

Plaintiff initially filed suit for medical negligence in 1984. Included as defendants in the original suit were Defendant, Dr. Maravilla; St. Anthony's Medical Center; Dr. Dennis McGraw, another physician Plaintiff had been seeing for several years; and Dr. Joseph Boveri, a physician that Plaintiff claimed to have seen for the insertion of an IUD. In the course of this initial suit, Plaintiff took the depositions of these defendants. The original suit was ultimately dismissed without prejudice in 1987. Plaintiff refiled suit in 1988 pursuant to § 516.230 RSMo 1986, naming only Dr. Maravilla and St. Anthony's as defendants. By the time of trial, only Dr. Maravilla remained as a defendant.

The case proceeded to trial on March 2, 1992 and resulted in a jury verdict in favor of Defendant. The nature of our holding requires that we recite the evidence in some detail.

The record establishes that Defendant was a family practitioner who had been practicing in St. Louis County for over twenty-five years. His practice did not include providing pre-natal care to pregnant women or delivering babies. Plaintiff had been seeing Defendant as her family physician since March, 1981. Defendant had treated Plaintiff for a variety of maladies, including hypertension, headaches and stomach problems, for which he prescribed various medications. Plaintiff was also seeing Dr. McGraw, who sometimes prescribed medications for her as well. Neither Defendant nor Dr. McGraw was aware Plaintiff was seeing and receiving treatment from the other.

In September of 1982, Plaintiff went to Defendant's office complaining of stomach cramps. His office records establish that at that time she weighed 245 1/2 lbs. and was twenty-two years old. She was not then pregnant.

Plaintiff became pregnant in October of 1982. Plaintiff testified that she did not know she was pregnant and claimed to have experienced normal menstrual periods throughout the entire term of her pregnancy. However, Dr. McGraw testified in his deposition, introduced by Plaintiff, that Plaintiff came to see him in November of 1982 because she was concerned about having missed her period. Dr. McGraw testified that he examined Plaintiff and recommended that she return in a few weeks if her cycle did not return to normal. Although Plaintiff testified that she did in fact return to see him on several occasions after that date, Dr. McGraw testified that he never saw Plaintiff again until July 13, 1983, shortly before she gave birth. Dr. McGraw's office records, which were admitted into evidence, supported his testimony.

Plaintiff did not return to see Defendant until March of 1983. At that visit, she complained only of a stiff neck and a headache, for which Defendant prescribed some pain relievers and muscle relaxants. Plaintiff gave no indication to Defendant that she believed she might be pregnant.

Plaintiff testified that she returned to see Defendant three or four times after her visit in March. However, similar to Dr. McGraw, Defendant testified that he never saw or treated Plaintiff during that time period and first saw her again when she came to his office on July 15, 1983. Defendant's office records supported his testimony.

On July 13, 1983, Plaintiff went to Dr. McGraw complaining of muscle spasms and pain in her lower back. Dr. McGraw prescribed Motrin and Norflex, advised her to apply heat packs and ice bags alternately, and told her to return in five days if not completely better. On July 15, 1983, Plaintiff called Dr. McGraw's office and stated she was still having severe pain. Dr. McGraw telephoned the Normandy Osteopathic Hospital South to schedule Plaintiff's admission for that day.

Instead, on that same day, Plaintiff went to see Defendant, this time complaining of lower back pain. Defendant found Plaintiff to be in such obvious and severe pain that he was unable to perform a physical examination. Instead, he ordered Plaintiff admitted to St. Anthony's Medical Center for x-rays. Hospital records for that date indicate Plaintiff weighed 250 lbs., a 4 1/2 lb. gain from her September 1982 visit to Defendant. The diagnosis of pregnancy was made when an x-ray of Plaintiff's spine revealed the presence of a mature fetal skeleton.

Plaintiff gave birth to a baby girl by cesarean section the following day, July 16, 1983. The baby was born with meconium staining and experienced respiratory problems. For treatment of these problems, the baby was transferred to Cardinal Glennon Hospital where she was hospitalized for thirty-seven days. There was no evidence of any permanent injury and the child was healthy at the time of trial.

Plaintiff's theory of recovery was that Defendant was negligent in failing to diagnose her pregnancy and that the failure to diagnose pregnancy until the date of delivery directly caused or contributed to cause the problems which led to the baby's subsequent hospitalization. The hospitalization resulted in medical bills of nearly $48,000 and caused Plaintiff to be separated from her child until Plaintiff's discharge from St. ...

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