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Will v. Pepose Vision Institute, P.C.

Court of Appeals of Missouri, Eastern District, Fourth Division

May 23, 2017

JAYNEE WILL, Appellant,
v.
PEPOSE VISION INSTITUTE, P.C., Respondent.

         Appeal from the Circuit Court of St. Louis County 10SL-CC03956-01 Honorable Michael T. Jamison

          Gary M. Gaertner, Jr, Judge

         Introduction

         Appellant Jaynee Will (Will) appeals the judgment entered upon the jury's verdict in favor of Respondent Pepose Vision Institute, P.C. (Pepose), in Will's medical malpractice suit against Pepose. We affirm.

         Background

         Will has a family history of retinal detachment, and she regularly obtained eye examinations from retinal specialists. In November of 2001, Will's retinal specialist, Dr. Nancy Holekamp, diagnosed Will with high myopia, lattice degeneration, and posterior vitreous detachment in both eyes. These conditions placed Will at greater risk for retinal detachment than the general population. At the time of Will's diagnoses, Dr. Holekamp did not recommend immediate treatment, but instead that Will be examined again in two years.

         In October of 2003, Will underwent bilateral Lasik surgery at Pepose, performed by Dr. Jay Pepose. Dr. Mujtaba Qazi, a refractive surgeon with Pepose, performed both Will's pre- and post-operative examinations. Will returned to Pepose twice more in 2003 for follow-up examinations. Over one year later, on February 1, 2005, Dr. Qazi performed a general ophthalmology examination on Will's eyes, which included a retinal examination. Dr. Qazi documented on that date that Will's retinas were normal.

         On March 23, 2005, Will noticed a large floater making a line across her right eye. Will went to Barnes Retina Institute the next morning, and she was diagnosed with a retinal detachment and giant retinal tear in her right eye. She had vitrectomy surgery to repair the retinal detachment that same day. Will unfortunately experienced a complication from the surgery that ultimately resulted in the loss of her right eye in 2011. Will also underwent a preventative procedure in her left eye to lessen the risk of retinal detachment in that eye, which was successful.

         In 2011, Will filed a medical malpractice suit against Pepose, alleging both Dr. Pepose and Dr. Qazi failed to conform to the standard of care in treating her, which caused or contributed to cause the injury to her right eye. After a jury trial, the jury found in favor of Pepose, but the trial court granted Will's motion for new trial, finding the verdict was against the weight of the evidence. This Court affirmed on appeal. Will v. Pepose Vision Institute, P.C., 400 S.W.3d 864 (Mo. App. E.D. 2013). The second trial took place in September of 2015, and the jury again returned a verdict in favor of Pepose. This appeal follows.

         Discussion

         Will raises two points on appeal. First, she argues that certain statements by Pepose's counsel during closing argument misrepresented the evidence, and that the trial court plainly erred in allowing such argument. Second, Will argues that the trial court abused its discretion in excluding evidence of witness tampering by Pepose, which prejudiced Will. We discuss each in turn.

         Point I

         Will argues that certain statements by Pepose's counsel during closing argument misled the jury, and thus the trial court plainly erred in allowing such argument. We disagree.

         Will concedes this point was not preserved because her counsel failed to object to these statements during Pepose's closing argument at trial. She requests we review for plain error under Rule 84.13(c).[1] "The general rule is that where a party does not object to argument he deems improper he may not thereafter object on appeal; and the plain error rule may be resorted to only in those exceptional circumstances when the reviewing court deems that manifest injustice or miscarriage of justice has occurred." City of Maryland Heights v. Heitz, 358 S.W.3d 98, 113 (Mo. App. E.D. 2011) (quoting Goodman v. Firmin Desloee Hospital. 540 S.W.2d 907, 917 (Mo. App. 1976)). Courts have an absolute duty to "restrain and purge" misstatements of law during closing argument. Heshion Motors. Inc. v. W. Internafl Hotels. 600 S.W.2d 526, 534 (Mo. App. W.D. 1980). However, "it is equally recognized that the permissible field of argument is broad, and so long as counsel does not go beyond the evidence and the issues drawn by the instructions... he is permitted wide latitude in his comments." Id.

         Here, Will argues that Pepose's counsel misrepresented the evidence relating to the standard of care that was applicable to Dr. Qazi. There were two sets of guidelines for eye examinations in evidence, called Preferred Practice Patterns (PPP). One of the PPP's was entitled "Comprehensive Adult Medical Eye Evaluation, " and it provided that "[o]ptimal examination of the peripheral retina requires the use of the indirect ophthalmoscope or slit-lamp fundus biomicroscopy." These are the tools Dr. Qazi used when performing Will's eye examination in February of 2005. However, another PPP in evidence, entitled "Posterior Vitreous Detachment, Retinal Breaks, and Lattice Degeneration" (PVD PPP), called for use of an additional instrument, called a scleral depressor, when examining a patient's retina. Will's theory at trial was that Dr. Qazi's care during his February 2005 examination fell below the standard of care because he failed to use a scleral depressor to examine the periphery of her retinas. Will argued this caused Dr. Qazi to miss seeing the lattice degeneration in both eyes and mistakenly diagnose her retinas as normal.

         During closing argument, Pepose's counsel noted that Pepose's expert witness, Dr. Charles Wilkinson, testified that the PVD PPP contains "guidelines for retinal specialists, and those guidelines apply when a patient has symptoms" of posterior vitreous detachment. Pepose's counsel argued Dr. Qazi is not a retinal specialist, but a refractive surgeon, and that there was no expert testimony ...


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