APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY. Honorable Weldon C. Judah, Judge.
Partamian and Phoenix Urology were represented by James E. Meadows of Polsinelli PC in Springfield, Richard M. AuBuchon of the AuBuchon Law Firm LLC in Jefferson City, and Timothy M. Aylward and Matthew T. Swift of Horn Aylward & Bandy LLC in Kansas City.
Stewart was represented by Paul L. Redfearn and Michael D. Wallis of The Redfearn Law Firm PC in Independence; and Edward D. Robertson Jr. and Anthony L. DeWitt of Bartimus, Frickleton, Robertson & Goza PC in Jefferson City.
Richard B. Teitelman, J.
Krikor Partamian, M.D. (Dr. Partamian), and Phoenix Urology of St. Joseph, Inc. (collectively Appellants), appeal from a judgment awarding $4.3 million to Douglas Stewart (Respondent) on his claim for medical negligence. Appellants argue that the trial court abused its discretion in admitting into evidence videotaped deposition testimony from Dr. John Riordan. Appellants also argue that the trial court abused its discretion by failing to find that the verdict was excessive due to jury passion and prejudice and because it exceeded fair and reasonable compensation for Respondent's injuries. Finally, Appellants argue that the trial court erred in declining to enter an order of remittitur because section 538.300, which prohibits defendants in medical negligence cases from seeking remittitur, violates the right to a trial by jury guaranteed by article I, section 22(a) of the Missouri Constitution. The judgment is affirmed.
Appellants did not object at trial to the admission of Dr. Riordan's videotaped deposition testimony and, therefore, did not preserve this issue for appellate review. Appellants have not demonstrated that the jury's verdict was excessive due to passion and prejudice or that the verdict was excessive because it exceeded fair and reasonable compensation for Respondent's injuries. Finally, this Court will not address Appellants' constitutional challenge to section 538.300 because the failure to demonstrate that the verdict was excessive means that Appellants did not make the required threshold showing that would raise the possibility of remittitur and thereby implicate the statutory prohibition in section 538.300.
On May 11, 2009, Dr. Partamian diagnosed Respondent with a prostate abscess. Dr. Partamian testified at trial a prostate abscess is " a collection of pus or purulent material" caused by an inflammatory response to a bacterial infection. The abscess is formed when the body encapsulates the infected tissue to contain the infection. A prostate abscess is a serious medical condition that requires antibiotics and, if necessary, draining the abscess by piercing it and allowing it to drain from the body through the urinary tract.
After diagnosing the abscess, Appellants placed Respondent on antibiotic treatment. On May 15, 2009, Dr. Riordan, a member of the Phoenix practice group, examined Respondent. Dr. Riordan testified that his opinion was that Respondent's prostate abscess should be drained. Appellants did not drain the abscess and, instead, continued antibiotic treatments.
On May 17, 2009, Respondent's prostate abscess ruptured and, according to Dr. Partamian, was " spilling out into adjacent tissues." Dr. Partamian performed surgery. The surgery required an incision between Respondent's scrotum and anus to permit drainage. It also required the insertion of multiple drainage tubes to facilitate drainage.
As a result of the abscess rupture, Respondent sustained significant injuries. The infection spread into his penis, scrotum, pelvis and perineum. For 28 days, Respondent was in a coma and could breathe only with the assistance of a mechanical ventilator. The infection destroyed his urethra, causing Respondent to urinate from his perineum. Respondent's urethra had to be reconstructed with tissue from his mouth. The infection destroyed the musculature surrounding Respondent's urethra, causing urinary incontinence. Respondent's injuries also resulted in impaired reproductive function and persistent, permanent pain. Respondent sustained the foregoing injuries when he was 36 years old and, soon after, he was engaged to be married.
In June 2012, Respondent filed the underlying lawsuit alleging that Appellants negligently failed to timely drain the prostate abscess, causing the abscess to rupture. Respondent alleged that Appellants' negligence caused the injuries described above. The case proceeded to trial, and the jury returned a unanimous verdict in Respondent's favor. The jury awarded Respondent $401,726.77 for past economic damages, $1.5 million for past non-economic damages and $2,398,273.23 for future non-economic damages for a total verdict of $4.3 million. This appeal followed.
I. Appellants waived any objection to Dr. Riordan's deposition testimony
Appellants argue that the trial court abused its discretion by allowing Respondent to present evidence regarding two general aspects of Dr. Riordan's videotaped deposition testimony. First, Appellants argue that the trial court erred in admitting Dr. Riordan's testimony regarding his treatment of previous patients with prostate abscesses. Appellants assert that this testimony erroneously allowed Respondent to use evidence of Dr. Riordan's subjective medical opinion to to establish the objective, generally applicable standard of care. Appellants also assert that evidence of Dr. Riordan's treatment of previous ...