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Dodson v. Ferrara

Court of Appeals of Missouri, Eastern District, Second Division

July 21, 2015

JASON D. DODSON & JASON D. DODSON, JR., A MINOR & EVA RAINE DODSON-LOHSE, A MINOR AND AUGUST WILLIAM DAVIS DODSON, A MINOR, SAID MINORS APPEARING BY THE DULY APPOINTED NEXT FRIEND JASON D. DODSON, Plaintiffs/Respondents/Cross-Appellants,
v.
ROBERT P. FERRARA, M.D., AND MERCY CLINIC HEART AND VASCULAR, L.L.C., Defendants/Appellants/Cross-Respondents.

Appeal from the St. Louis County Circuit Court Honorable Thea A. Sherry

Philip M. Hess, Judge

Introduction

Dr. Robert P. Ferrara and his employer, Mercy Clinic Heart and Vascular, LLC (Defendants) appeal the judgment of the trial court, awarding Jason Dodson and his children (Plaintiffs) $2, 181, 155 on their wrongful death action. Defendants challenge (1) Plaintiffs' counsel's question to Defendants' expert regarding St. Louis-based physicians; (2) the admissibility of evidence that Dr. Ferrara did not speak with the cardiac surgeon following Shannon Dodson's death; (3) the trial court's decision to submit Missouri Approved Instruction 2.07 regarding insurance; (4) the denial of Defendants' motion for directed verdict on the issue of loss of economic support; and (5) the delayed denial of motion for directed verdict on the issue of aggravating damages.

Plaintiffs filed a cross-appeal, challenging the constitutionality of § 538.210(1) RSMo, [1]which caps noneconomic damages in tort actions against healthcare providers at $350, 000. Plaintiffs argue that the Missouri Supreme Court declared the damage cap unconstitutional in Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. banc 2012). Plaintiffs also argue that the statute is unconstitutional because it violates the equal protection clause and separation of powers. Finally, Plaintiffs contend that the trial court erred in granting Defendants' motion for directed verdict on the issue of aggravating damages. We conclude that we do not have jurisdiction to hear this appeal, and order the case transferred to the Missouri Supreme Court.

Factual Background

This case arises out of the death of Shannon Dodson (Decedent), wife of Jason Dodson and mother of three children. In February 2011, Decedent experienced shortness of breath and went to the emergency room at Mercy Hospital, where she was diagnosed with bronchitis. She complained of chest pain and an electrocardiogram (EKG) revealed some abnormalities. Interventional cardiologist Dr. George Kichura treated Decedent that day. After reviewing the results of her EKG and determining they were abnormal, Dr. Kichura recommended that Decedent undergo a stress EKG, which did not produce clear images of the heart. Dr. Kichura then recommended a cardiac catheterization, so that the doctors could conclusively determine whether Decedent had any heart disease. While Decedent initially expressed some fear, she decided to undergo the cardiac catheterization. Dr. Kichura scheduled the surgery, to be performed in the catheterization lab by Dr. Robert Ferrara.

During the catheterization, Decedent suffered a left main coronary artery dissection, which caused difficulty in blood flow to the heart. Dr. Ferrara called Dr. Kichura to the catheterization lab to confer about whether to proceed with a stent. Dr. Ferrara also asked a nurse to call the surgeon to prepare an operating room. When Dr. Kichura arrived, about twenty minutes later, Dr. Ferrara was preparing to put in an intra-aortic balloon pump. Dr. Kichura continued with the balloon pump to attempt to restore blood flow, which was only partially successful. Dr. Blucher, a cardiothoracic surgeon, responded to the earlier call for a surgeon, and Dr. Ferrara conferred with him. Decedent was transported to surgery. Efforts to restore cardiac function failed. Decedent was pronounced dead shortly thereafter.

Plaintiffs filed suit against Defendants for wrongful death. Plaintiffs claimed that Dr. Ferrara was medically negligent and caused Decedent's death through his negligent performance in addressing the complications of the cardiac catheterization. Plaintiffs also claimed aggravating damages. The case proceeded to trial in August 2013.

At the close of the evidence, the trial court granted Defendants' motion for a directed verdict on the claim for aggravating damages. Subsequently, the jury returned a verdict for Plaintiffs on the wrongful death claim, awarding Plaintiffs:

Past economic damages: $305, 737
Past noneconomic damages: $1, 000, 000
Future economic damages: $1, 525, 418
Future noneconomic damages: $8, ...

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