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Mackey v. Smith

Court of Appeals of Missouri, Western District, First Division

August 12, 2014

MICHAEL L. MACKEY, et al., Respondents-Appellants,
STEVEN B. SMITH, M.D., et al., Appellants-Respondents

Editorial Note:

This decision is not final until expiration of the rehearing period.

Appeal from the Circuit Court of Nodaway County, Missouri. The Honorable Roger M. Prokes, Judge.

Ed Dougherty, Kansas City, MO, Attorneys for Respondents-Appellants Michael L. Mackey and Billie R. Mackey.

Diana M. Jordison, Kansas City, MO, Attorney for Appellants-Respondents Steven B. Smith, M.D., and Northland Bone & Joint, Inc.

Timothy S. Frets and Mary C. O'Connell, Leawood, KS, Attorneys for Appellants-Respondents Thomas V. DiStefano and SSM Regional Health Services.

Before Division I: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Karen King Mitchell, Judges. Lisa White Hardwick and Karen King Mitchell, Judges, concur.


Mark D. Pfeiffer, Presiding Judge

Dr. Thomas V. DiStefano and his employer, SSM Regional Health Services (collectively, " DiStefano" ), and Dr. Steven B. Smith and his employer, Northland Bone & Joint, Inc. (collectively, " Smith" ), each appeal the judgment of the Circuit Court of Nodaway County, Missouri (" trial court" ), awarding Michael L. Mackey and his wife, Billie R. Mackey (collectively, " the Mackeys" ), damages against both DiStefano and Smith for medical malpractice in the course of their treatment of Mr. Mackey. Both DiStefano and Smith allege several points of trial error. The Mackeys cross-appeal, claiming that the trial court erred in refusing to award post-judgment interest on the Mackeys' damage award. We affirm.

Factual and Procedural Background[1]

On September 17, 2007, DiStefano performed a total hip replacement on Mr. Mackey at St. Francis Hospital in Maryville, Missouri. DiStefano placed a prosthetic hip stem into the canal of Mr. Mackey's femur. During the operation, a fluoroscopy-type x-ray was performed, reflecting that the prosthetic stem was placed at a varus (outward) angle in the canal of the femur, but the extent of the varus could not be determined by the film. DiStefano was not concerned with what he considered a " slight" varus and completed Mr. Mackey's operation. DiStefano did not take any post-operative x-rays after the surgery although he had been trained to do so. DiStefano allowed Mr. Mackey to bear weight on his legs, as tolerated, immediately after the surgery.

On October 1, 2007, Mr. Mackey was evaluated at DiStefano's office and Mr. Mackey reported at that time that he was doing well with his walker, but that he experienced pain when he attempted to walk with a cane. Mr. Mackey was advised to continue to use his cane as much as possible.

Later that evening, Mr. Mackey was home alone and went outside onto his back porch, using his cane. At some point he felt his right leg give way, which made him fall backward and to the left. Mr. Mackey did not remember hitting the ground, but he pulled himself to a chair and waited for Mrs. Mackey to return home. Mr. Mackey told his wife that he thought his hip had come out of the socket; he did not know that his leg had been broken. Mr. Mackey went to the hospital in an ambulance after his wife and a family friend were unable to move him themselves. At the hospital, x-rays confirmed that Mr. Mackey had suffered a severely comminuted fracture of his femur. DiStefano reviewed the x-rays the next morning and told Mr. Mackey that he most likely had had a crack in his femur and that the prosthesis, when Mr. Mackey put his weight on it, acted like a wedge and cracked through the bone.

Mackey's revision surgery was performed at North Kansas City Hospital by Dr. Smith. Smith performed the hip revision surgery on October 3, 2007. The surgery appeared to have been successful, even though Mr. Mackey's fractures were the worst involving a prosthetic hip that Smith had ever treated. Dr. Smith noted the rotational pattern of Mackey's fractures and believed that the top part of Mackey's femur " blew apart" because the prosthetic stem was pushed into the femur canal. Smith did not believe that the fracture was caused by Mackey's hitting the floor when he fell.

On October 8, 2007, Mackey's chart described his surgical wound as warm with a moderate amount of purulent draining and a foul odor. Mackey was prescribed oral doxycycline, which is an antibiotic given to prevent infection; he was released from the hospital that day. On October 11, 2007, Mr. Mackey reported to Northland Bone & Joint several days before his scheduled appointment because he was concerned about continuing drainage of his wound. Mackey was seen by one of Dr. Smith's partners, who ordered a culture of the wound drainage. The culture indicated heavy growth of the bacteria methicillin resistant staphylococcus aureus (MRSA). The lab sent the culture result to Northland Bone & Joint, and it made its way to Mackey's file, but Smith does not remember when he first saw the culture result, and Mackey was not told that he had MRSA. Smith continued to evaluate Mackey's progress through the fall of 2007, and on December 14, Smith discontinued Mackey's prescribed doxycycline, noting that his wound had healed.

In early January of 2008, Mackey experienced a buildup of fluid around his former wound site, which burst open and began draining fluid again. Mackey went back to see Dr. Smith on January 11, 2008, at which time Smith expressed a strong suspicion of a deep-wound infection. Mackey was again placed on doxycycline, even though Dr. Smith knew that doxycycline would not cure a deep-wound infection involving hardware; a deep-wound infection would require an intravenous antibiotic such as vancomycin. On January 31, Smith conducted a right hip aspiration on Mackey that was positive for MRSA deep within the wound. Dr. Smith notified Mackey that he had an MRSA infection on February 8, 2008. Mackey was left on the doxycycline, and prosthetic removal surgery was scheduled for February 27, 2008.

As of February 28, 2008, Mackey's antibiotic care was managed by infectious disease specialist Dr. Henry, who administered intravenous vancomycin. Mackey treated with Dr. Henry through April of 2008.

In the summer of 2008, Mackey transferred his care to the University of Kansas Medical Center (" KU Med" ). The physicians at KU Med concluded that Mackey was not a good candidate for further revision to his hip due to the infection and resultant loss of blood flow and viable bone. Thus, Mackey underwent amputation of his right leg at the hip on August 12, 2008.

The Mackeys asserted medical malpractice and loss of consortium claims against DiStefano in the Circuit Court of Nodaway County on September 9, 2008. They later brought a separate medical malpractice and loss of consortium suit against Smith in Clay County, Missouri, on April 15, 2010. On May 14, 2010, the Mackeys dismissed the Nodaway County action without prejudice. On May 21, 2010, the Mackeys filed a first amended petition in their Clay County action, adding DiStefano and reinstating their claims against him. DiStefano responded that the claims against him in the Mackeys' first amended petition in the Clay County suit were barred by the applicable two-year statute of limitations for medical malpractice actions. The Mackeys countered that Missouri's savings statute served to preserve their right to bring the claim, because the allegations against DiStefano were the same as in the Nodaway County suit and because the reinstatement of their claims against DiStefano via the first amended Clay County petition occurred within one year of their voluntary nonsuit in the Nodaway County action. The trial court agreed and refused to dismiss the claims against DiStefano, but the trial court transferred the case back to Nodaway County. A jury trial followed.

The jury found in favor of the Mackeys against both DiStefano and Smith, itemizing past and future economic and non-economic damages against DiStefano in the amount of $1,773,500 and against Smith in the amount of $1,684,000; judgment was entered in accordance with the jury's verdicts. Each of the parties filed appeals relating to the trial court's judgment, and the appeals were consolidated by this court for review. Further relevant facts will be set forth below as necessary to our analysis.


Statute of Limitations

DiStefano's first point on appeal is that the trial court erred in refusing to dismiss the claims against him and his employer in that the Mackeys' claims against him are barred by Missouri's two-year statute of limitations for medical malpractice actions as set forth in section 516.105.[2] DiStefano claims that the trial court erroneously concluded that the savings statute applied. The application of a statute of limitations is a question of law that this court reviews de novo. Molder v. Trammell Crow Servs., Inc., 309 S.W.3d 837, 840 (Mo.App. W.D. 2010).

The savings statute, section 516.230, provides:

If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer[s] a nonsuit, . . . such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered . . . .

" [A] litigant must meet three requirements in order for the savings statute to apply: (1) the original action must have been timely filed; (2) the second cause of action is the same as the first; and (3) the plaintiff suffered a nonsuit in the first cause of action." Molder , 309 S.W.3d at 841.

Here, DiStefano does not dispute that the original Nodaway County action against DiStefano was timely filed, the amended petition filed in the Clay County action made the same allegations (as to DiStefano) as the first action, and the first cause of action was nonsuited. DiStefano's complaint is that the savings statute is inapplicable because the Mackeys' new action did not occur after the first action was nonsuited.

DiStefano claims that the Mackeys' reinstatement of their claims against him by amending their petition in the Clay County action did not constitute a " new action" as contemplated by the savings statute. Instead, DiStefano contends, the Clay County action was " commenced" when the Mackeys' initial petition against Smith was filed in Clay County, before the nonsuit in the Nodaway County action.

DiStefano cites Rule 53.01, which does indeed state that " [a] civil action is commenced by filing a petition with the court." However, from there, DiStefano ignores Missouri law, citing various state and federal cases from outside Missouri, including an unpublished case from the Michigan Court of Appeals, which he claims " clearly" mandates a ruling in his favor. " Unpublished decisions of the courts of other states are not persuasive authority in this court." J.B.M. v. S.L.M., 54 S.W.3d 711, 714 (Mo.App. S.D. 2001). What is persuasive in this court is precedent from our Missouri Supreme Court concluding that, for statute of ...

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