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09/21/93 GENEVA EIDSON v. REPRODUCTIVE HEALTH

September 21, 1993

GENEVA EIDSON, PLAINTIFF/APPELLANT,
v.
REPRODUCTIVE HEALTH SERVICES, DEFENDANT/RESPONDENT.



Appeal from the Circuit Court of the City of St. Louis. Honorable Brendan Ryan.

Kathianne Knaup Crane, Judge, Carl R. Gaertner, P.j., and Lawrence G. Crahan, J., concur.

The opinion of the court was delivered by: Crane

Plaintiff, Geneva Eidson, appeals a judgment on a jury verdict in favor of defendant, Reproductive Health Services, on her medical malpractice action arising from her daughter's suicide. She claims error in two jury instructions and in the dismissal of her claim for statutory negligence. We find one of the jury instructions was erroneous. However, we affirm because plaintiff failed to make a submissible case. Further, the trial court properly dismissed the statutory negligence claim where a federal court had found the statute unconstitutional and enjoined its enforcement.

FACTUAL BACKGROUND

Because this case turns primarily on the issue of submissibility, we recite the facts as shown by plaintiff's evidence and witnesses. Plaintiff was the mother of Sandra Kaiser, born on November 17, 1969. Plaintiff, a single parent, raised Sandra alone, along with four other half-siblings. During her childhood Sandra had a history of behavioral and emotional problems for which she received counseling and psychiatric therapy. At age seven she witnessed the stabbing death of one of her half-brothers. At age eleven she was diagnosed with a conduct disorder for which psychiatric therapy and behavior modification was recommended. By age twelve her problems included drinking alcohol, running away from home, temper outbursts, skipping school, crying, and nightmares about her half-brother's death.

On June 2, 1982 at age twelve, Sandra was hospitalized at Hawthorn Children's Psychiatric Hospital until July 29, 1982 for unmanageable behavior at home and lack of improvement from outpatient therapy. The admitting diagnosis was "Conduct Disorder", "Undersocialized, Aggressive" and "Mixed Specific Developmental Disorder." While in Hawthorn, Sandra had gotten angry, hit the wall and broke a bone in her hand. Upon discharge she was prescribed anti-anxiety medication and outpatient therapy at Hawthorn's Outpatient Clinic (O.P.C.).

A psychiatric social worker reported that in February, 1983 Sandra ran away from home. Subsequently, a psychiatrist hospitalized her at St. Vincent's and a deputy juvenile officer was assigned to Sandra because of her aggressive behavior in the community.

On July 1, 1983, at age thirteen, Sandra was admitted to the Hawthorn O.P.C. with an admitting diagnosis of "Conduct Disorder, Undersocialized Aggressive." Her final diagnosis was the same and also included "Mixed Specific Development Disorder." In late 1983 Sandra was reported to have run away again and had suffered two unexplained injuries. She and her mother were failing to keep her outpatient counseling appointments and Hawthorn closed her case. In addition to hospitalization and treatment at Hawthorn and St. Vincent's, plaintiff testified Sandra had been at Edgewood Children's Center.

Sandra also had problems in school beginning in about third grade and was expelled from several schools for disciplinary problems and fighting. In the spring semester of 1984, she received "F's" in every class and officials reported poor attendance. In the fall semester of 1984, Sandra missed 37-1/2 days of the 51 days of school prior to her death.

In October 1984, at age fourteen, Sandra told her 21-year-old half-sister, Karen Flynn, that she thought she was pregnant. Flynn went with her to Planned Parenthood for a pregnancy test. Sandra discussed the pregnancy with Flynn and decided to have an abortion. On October 24, 1984, Flynn made a counseling appointment for Sandra with defendant, an abortion provider. Sandra attended this appointment with Flynn and was seen by a supervisor in defendant's Primary Counseling Department. At the counseling session, defendant's employees discussed the abortion procedure and various options. Flynn testified that Sandra expressed no ambivalence about the abortion and that Sandra told the counselors she thought she was too young to have a child.

Defendant's records, offered into evidence by plaintiff, indicate that Sandra told the counselors that plaintiff knew about and supported the abortion and had given her the money to pay for it. Plaintiff testified, however, that she did not know of the abortion, Sandra's pregnancy, or that Sandra had a boyfriend until she died. Plaintiff thought she had given Flynn the money to pay bills.

On October 27, 1984 Sandra returned to defendant with Flynn to have the abortion. At that time Sandra and Flynn together completed a form that requested information under the headings "Social History," "Menstrual History," "Contraceptive History," "Pregnancy History" and "Medical History." They answered "no" to the question under "Medical History," "Have you ever received counseling? ( Do not include any counseling for this pregnancy.)" They also answered "no" to the question "Have you ever been hospitalized other than for childbirth?" Flynn was aware of Sandra's counseling and hospitalization history, but testified they did not report it on defendant's forms because they believed the questions referred to counseling for pregnancy and hospitalization for physical treatment.

Prior to having the abortion on October 27, 1984, Sandra viewed a film entitled "First Trimester Informed Consent." At trial plaintiff's attorney read into evidence the following excerpt from the film:

"We've tried to describe all the physical feelings you can expect over the next few weeks. Most women feel relieved and very positive. A few women have negative emotional feelings after an abortion. You may feel slightly depressed, but those feelings are normal. Hormones, which were increased during pregnancy, have now suddenly been lowered in your body, and that makes changes which can result in feelings of depression, but severe depression is not to be expected. If you are severely depressed after this abortion it may be that your feelings about ending a pregnancy have not yet been completely resolved. You should see a counselor in an agency near you, either the agency that referred you here, a family service agency, Planned Parenthood affiliate, or your clergyman, or come back here."

"Call us. We are here to serve your physical and emotional needs. We want to help, but we need you to call us. As a matter of fact, let's make an agreement. Call us within the next forty-eight hours. You'll feel better, and so will we."

A counselor verbally verified the information filled in on the form and discussed the film, the consent form, the abortion procedure and counseling about grieving and loss as well as appropriate after care. Sandra signed a patient consent form for the abortion on October 27, 1984. Flynn signed in the "parent/guardian" space on the form.

Plaintiff, Flynn, and Sandra's half-brother, Donald Tildwell, each testified that, prior to the abortion, Sandra took great interest in her appearance. They testified that after the abortion she stopped taking care of her appearance.

Plaintiff also testified that after October 27 Sandra was very depressed, stayed in her room a lot, and cried. When plaintiff questioned her about her behavior, Sandra told plaintiff she had had arguments with a friend. At trial plaintiff was asked if during this period Sandra acted "crazy in any fashion?" Plaintiff answered, "No, just depressed." Plaintiff specifically testified that Sandra seemed to know what she was doing, functioned normally, went to school, helped around the house, and carried on normal conversations.

Flynn also testified that after the abortion Sandra stayed in her room a lot and cried. However, she also testified that Sandra did nothing foolish and did not act "crazy" or "nuts."

Tildwell also testified that prior to the abortion Sandra was "happy-go-lucky", but was not so afterward. He noticed Sandra seemed depressed on her fifteenth birthday, November 17, 1984, so he bought her a cake. While Sandra was cutting the cake, Tildwell grabbed a rose off the cake and she "blew up", threw handfuls of cake at him, and ran back to her room.

At approximately 10:30 p.m. on November 19, 1984, plaintiff overheard Sandra in an argument with her nineteen year old boyfriend because he "had gotten somebody else pregnant." During the argument, both plaintiff and Tildwell heard Sandra state she was going to jump off a bridge and kill herself. She "stomped off" and left the house. Plaintiff and Tildwell both thought Sandra was "letting off steam." Plaintiff was giving someone a permanent and did not follow her or call out to her. Less than thirty minutes later, a policeman arrived at the home and informed plaintiff that Sandra had been struck by an automobile.

An eyewitness to the accident, which occurred at approximately 11:00 p.m., testified that he saw Sandra holding on to a fence on a bridge over Arsenal Street and then jumped in front of a car traveling below on Arsenal. She appeared to have been rocking back and forth while holding onto the fence, then deliberately let go and jumped far out to the driver's side of the car that struck her. A second car hit her while she was on the ground. Sandra was taken to a hospital and died the next day of multiple injuries. Sandra's blood alcohol was .081 gm.

PROCEDURAL BACKGROUND

On September 30, 1987, plaintiff filed a wrongful death action against defendant. In her petition, plaintiff alleged defendant was negligent in failing to use the standard of care ordinarily used by members of the medical profession in like or similar circumstances. The alleged negligent conduct included a failure to provide post-abortion counseling to Sandra and a violation of ยง 188.028 RSMo (1986) governing consent of minors to abortions. She further alleged defendant's negligence was ...


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