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Ball v. Allied Physicians Group, L.L.C.

Court of Appeals of Missouri, Eastern District, Third Division

March 27, 2018

CLAUDIA BALL, Respondent,
v.
ALLIED PHYSICIANS GROUP, L.L.C., d/b/a BREAKTHROUGH PAIN RELIEF CLINIC and CATHERINE DOTY, M.D., Appellants.

          Appeal from the Circuit Court of St. Louis County 12SL-CC02997 Honorable Kristine A. Ken

          Gary M. Gaertner, Jr., Presiding Judge.

         Introduction

         Allied Physicians Group, L.L.C., d/b/a Breakthrough Pain Relief ("Breakthrough") and Catherine Doty, M.D, ("Dr. Doty") (together, "Appellants") appeal from the trial court's entry of judgment upon a jury verdict in favor of Claudia Ball ("Ball") in her petition for damages. Appellants challenge the trial court's decision to submit the issues of future medical damages and informed consent to the jury, challenge the trial court's exclusion of certain evidence, and assert the trial court gave improper jury instructions. The judgment is affirmed in part and is reversed and remanded in part, in accordance with this opinion.

         Facts and Background

         On December 10, 2009, Dr. Doty performed an outpatient procedure on Ball at the Breakthrough clinic. Dr. Doty was administering trigger point injections along the edge of Ball's tailbone and upper gluteal muscles along the iliac crest (pelvic wings) as treatment for Ball's severe low back pain, when the hypodermic needle broke off of its hub on the syringe and became lodged in Ball's body. Dr. Doty made two attempts to recover the needle through fluoroscopic guided incisions but was unable to withdraw the needle. Ball then proceeded to St. Luke's hospital where they were likewise unable to withdraw the needle.

         Ball filed a petition for damages against Appellants asserting negligence and failure to exercise such care as a reasonably prudent health care provider would have used under similar circumstances, causing Ball's injuries and damages. At trial, Dr. Barry Feinberg ("Dr. Feinberg") was Ball's expert witness, and he testified, as relevant to the issues on appeal, that in his professional opinion Dr. Doty's treatment fell below the standard of care in two respects, in that the 27-gauge, one and a half inch needle Dr. Doty used for the injection was both too thin and too short for the location (deep gluteal muscles) of the injection, especially in light of Ball's truncal obesity.

         Dr. Doty challenged the allegation of negligence, testifying as follows. She commonly used a 27-gauge, one and a half inch needle to perform trigger point injections, as she was taught to do, and had been doing so since 1995. Prior to December 10, 2009, she had performed thousands of trigger point injections with 27-gauge, one-and-a-half-inch needles, and she had never before had a needle separate from the hub. It was her belief that her treatment of Ball was appropriate and not negligent, and that the only reason the needle separated from the hub was because the needle was defective. Likewise, Appellants presented expert testimony from Dr. John Metzler ("Dr. Metzler") that Dr. Doty was not negligent in her care of Ball, but rather a 27-gauge, one-and-a-half-inch needle was appropriate for the trigger point injection Dr. Doty was performing on Ball. He could think of no reason for the needle separating from the hub other than a failure of the needle.

         For their defense, Appellants sought to introduce evidence of a second occasion when a needle broke off the hub of the syringe. Ball filed a motion in limine to exclude this evidence, which the trial court granted. Appellants made an offer of proof, adducing testimony from both Dr. Doty and Kimberly Dohack ("Dohack"), Dr. Doty's medical assistant at Breakthrough assisting her that day, that approximately one week after the incident with Ball, Dr. Doty was performing a trigger point injection in the shoulder of another patient using a 27-gauge, one-and-a-half-inch needle from the same box, provided by the same manufacturer, Exel ("Exel"), when the needle broke off the hub into the patient's shoulder. Dr. Doty was able to retrieve the needle with forceps.

         After the December 10 incident with Ball, Dr. Doty and Dohack sent the syringe and hub to St. Luke's hospital, where St. Luke's personnel destroyed the syringe; and after the second incident of the needle breaking off the hub, Dohack disposed of the syringe. Dr. Doty and Dohack both testified they called the U.S. representative for Exel listed on the box after each breakage to report the incidents, but they agreed they did not make a contemporaneous record of their complaints reporting these incidents. Upon advice from their supplier, they disposed of all the remaining needles in that box and switched manufacturers. Ball responded with an affidavit from an Exelint[1] Medical Products representative that neither Dr. Doty nor anyone from Breakthrough ever made a complaint about broken needles.

         As well, at trial Ball asserted Appellants were negligent for Dr. Doty's failure to obtain Ball's informed consent before attempting to retrieve the needle at Breakthrough. Ball testified that after the needle became lodged in her back, Dr. Doty neither informed Ball of what she planned to do to retrieve the needle, nor gave Ball the option of going to the hospital instead for retrieval.

         By contrast, Dr. Doty testified that before performing the incisions to remove the needle, she verbally told Ball exactly what she was going to do to attempt to retrieve the needle and asked Ball if that was what she wanted to do or if she wanted to go to the ER. Ball made the decision to proceed with the retrieval attempts at Breakthrough rather than go to the hospital, and Ball verbally consented to up to two incisions. Dr. Doty agreed, however, that Ball did not sign a written informed consent form for the attempted retrieval and that her medical notes from that day did not reflect that she had offered Ball the option to go to St. Luke's hospital instead of attempting to remove the needle at Breakthrough. Dr. Doty also defined informed consent for the jury.

         Likewise, Dohack testified that after the needle broke off the hub, Dohack heard Dr. Doty both tell Ball what had happened and give Ball the choice of trying to retrieve the needle immediately with a small incision under a fluoroscope, or of going to the hospital for retrieval. Dohack testified that Ball stated she did not want to go to the hospital but wanted Dr. Doty to attempt to retrieve the needle at Breakthrough, at which point Dr. Doty explained the procedure she would use to retrieve the needle.

         Ball presented the following evidence to prove her damages. Dr. Feinberg testified that he treated Ball in 2011 for pain in her lower back that both predated and continued after the December 2009 incident when the needle broke off in her back. He took new X-rays and a CAT scan, which revealed that in 2011 the needle had migrated approximately six inches from where it initially entered her body and was lodged close to Ball's spine. The needle was encapsulated in and immobilized by scar tissue. Dr. Feinberg believed it was best not to attempt to remove the needle but leave it in place, because the needle was unlikely to continue migrating due to the surrounding immobilizing scar tissue. He stated, however, that he would recommend surgery to remove the needle if it migrated further, which could occur in the event of a trauma such as a car accident or a bad fall, or if the scar tissue surrounding the needle grew larger and impinged on her spinal nerve roots. The scar tissue could grow in the event of ongoing inflammatory problems, but would otherwise be static. As well, in the future Ball will be unable to have an MRI, which is a diagnostic tool, because the magnetic process could dislodge the needle, and she will be unable to have a deep tissue massage in the area where the needle is lodged. On cross-examination, Dr. Feinberg agreed that Ball reported no pain where the needle is currently located in her back, and that further migration of the needle was unlikely absent a trauma, which may never occur.

         Ball testified that the pain she experienced after the surgeries to retrieve the needle was different than the pain she experienced before. The new pain affects her in that she is afraid of falling down or getting into a car accident and dislodging the needle, she cannot get massages, and she is afraid of getting further trigger point injections to treat her pain. Sometimes she gets rashes around the area where the surgeon at St. Luke's hospital made his incisions to retrieve the needle.

         Appellants adduced testimony from their expert witness, Dr. Metzler, that his review of Ball's medical records showed that while Ball's back pain continued as before December 2009, she reported no new pain in the location where the needle is currently located. Dr. Metzler further testified that Ball's records show that the needle had not moved since 2010, and he believed the needle was unlikely to migrate further or require additional surgery.

         During the jury-instruction conference, counsel for Appellants objected to instructions proposing to submit the issues of informed consent and future medical damages to the jury. The trial court overruled the objections and allowed the instructions. Counsel for Ball requested to submit a specific amount of damages to the jury for future medical damages, based on the past medical damages. The trial court disallowed this, stating "I don't think there's any evidence to support a certain number, there just isn't because everyone agreed that it could happen, but it wasn't likely to happen. ... [I]t would be speculative what if she has an auto accident, what if she does this or that. ... I don't think it's fair for [Ball] to get up and suggest a number, .. based on something that may never happen."

         During closing arguments, Ball requested that the jury return a verdict awarding her at least $1, 019, 617.12: $19, 617.12 in past economic damages including medical damages, $500, 000 in past non-economic damages for pain and suffering, and $500, 000 in future non-economic damages for future pain and suffering, including restrictions to her life, such as being unable to have massages or MRIs. In addition, Ball requested the jury award her an unspecified amount for future medical damages if they believed she may in the future need medical treatment in the event the needle continued to migrate or the scar tissue encapsulating the needle grew.

         The jury found in favor of Ball, and it awarded her a total of $507, 000 as follows:

$7, 000 in past economic damages, including medical damages,
$135, 000 in past non-economic damages,
$185, 000 in future medical damages, and
$180, 000 in future non-economic damages.

         The trial court entered judgment in accordance with the jury's verdict. Appellants filed a motion for judgment notwithstanding the verdict or for a new trial. The trial court denied the motion. This appeal follows.

         Discussion

         Appellants raise four points on appeal. First, they argue the trial court erred in overruling their motion for new trial, because the evidence did not support the submission of future medical damages to the jury. Second, they argue the trial court erroneously excluded evidence of a defect in the needle. Third, they assert instructional error in submitting the issue of informed consent to the jury without sufficient evidence. And fourth, they assert the trial court plainly erred in submitting Instruction Number 7 because it was missing a conjunctive "and, " resulting in prejudicial error. We address the points in the order raised.

         Point I

         In their first point on appeal, Appellants argue the trial court erred in overruling their motion for new trial because the trial court erroneously submitted the issue of future medical damages to the jury, in that those damages ...


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