Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County 12SL-CC02997
Honorable Kristine A. Ken
M. Gaertner, Jr., Presiding Judge.
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.
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.
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.
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
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.
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 Medical Products representative that
neither Dr. Doty nor anyone from Breakthrough ever made a
complaint about broken needles.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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 ...