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Lowe v. Mercy Clinic East Communities

Court of Appeals of Missouri, Eastern District, Fourth Division

October 1, 2019

VINCENT LOWE, Respondent /Cross-Appellant,
v.
MERCY CLINIC EAST COMMUNITIES, JAMES D. CASSAT, M.D., BRYAN J. MENGES, D.O. and MERCY HOSPITALS EAST COMMUNITIES, Appellants.

          Appeal from the Circuit Court of of Franklin County 16AB-CC00047 Honorable Stanley D. Williams.

          OPINION

          James M. Dowd, Presiding Judge.

         I. Introduction

         Vincent Lowe brought this medical negligence suit in the Circuit Court of Franklin County against Bryan J. Menges, D.O., and James D. Cassat, M.D., and their respective employers Mercy Hospitals East Communities ("Mercy Hospitals") and Mercy Clinic East Communities ("Mercy Clinic"), alleging that as a result of their negligent failure to timely diagnose and treat the condition known as mesenteric ischemia which was causing inadequate blood supply to Lowe's intestines, a substantial portion of his lower bowel had to be surgically removed leaving him with short bowel syndrome[1] which requires extensive ongoing medical care. The jury found in favor of Lowe returning a verdict for past and future economic and noneconomic damages totaling $14, 245, 545. The jury made comparative fault assessments of 65% to Dr. Menges and Mercy Hospitals, 25% to Dr. Cassat and Mercy Clinic, and 10% to Lowe for a net verdict of $12, 820, 990. After the trial court entered its judgment on the jury verdict in which the court ordered under § 538.220.2[2] the periodic payment of the future damages awarded by the jury, the parties filed cross-appeals. We affirm the judgment finding the doctors and their employers liable for Lowe's injuries but we reverse and remand the portion of the judgment pertaining to attorney's fees and to the periodic payment of future damages.

         II. Factual Background

         The following facts are undisputed: At the time of the medical care at issue in this case, Lowe was 52 years old and had an extensive history of vascular disease requiring treatments that included coronary bypass surgery and the placement of cardiac and iliac stents. Around 11:00 p.m. on April 30, 2014, Lowe presented to the emergency department at Mercy Hospitals in Washington, Missouri, with severe abdominal pain. Dr. Menges, the emergency room physician, examined Lowe and took a medical history. Initially suspecting that Lowe's symptoms were the result of kidney stones, Dr. Menges ordered a non-contrast CT scan of Lowe's abdomen. The radiologist reported to Dr. Menges that there was abdominal gas, possibly of the type known as portal venous gas, around Lowe's liver. Because portal venous gas may be a sign of mesenteric ischemia-a dangerous condition involving the inadequate flow of blood to the intestines, which may lead to bowel death-the radiologist recommended an ultrasound to determine the character of the gas.

         Dr. Menges then telephoned Dr. Cassat, the emergency room's on-call surgeon, to confer about Lowe's condition. Dr. Cassat recommended an outpatient ultrasound. Dr. Menges agreed and discharged Lowe home in the early morning hours of May 1, 2014, with a diagnosis of a back strain and with directions to call to schedule an ultrasound on an outpatient basis. Three days later, Lowe became critically ill and returned to the emergency room. He had septic shock, was diagnosed with partial bowel death, and had to undergo several emergency surgeries to save his life which included the removal of seven feet-nearly half the length-of his bowel.

         Lowe claimed Dr. Menges rendered negligent medical care (1) by failing to order an inpatient ultrasound while Lowe was under his care in the emergency room; (2) by failing to rule out mesenteric ischemia; and (3) by discharging Lowe under the circumstances. Lowe claimed Dr. Cassat, the on-call physician, also rendered negligent care (1) by failing to come to the hospital to assess Lowe in the emergency room; and (2) by failing to order an inpatient ultrasound prior to Lowe's discharge, among other tests.

         After the jury returned the above verdict in Lowe's favor for past and future economic and non-economic damages, the court entered its judgment. With respect to the past economic and non-economic damages, the judgment awarded Lowe a lump sum of $2, 470, 990 to be paid immediately. With respect to the remaining $10, 350, 000 in future damages, the defendants invoked their right under § 538.220 to have the future damages paid out in whole or in part in periodic payments. So, the trial court made the following entries: First, the court ordered the $900, 000 in future noneconomic damages to be paid in two annual installments of $450, 000. Then, for the remaining $9, 450, 000 in future medical damages, the court established a 26-year periodic payment schedule that ordered annual payments which started with $988, 134 to be paid in the first year, $778, 638 paid in years two through five, $707, 486 in years six through ten, and $113, 117 in years eleven through twenty-six. The court also made all future damages payments subject to the fixed interest rate of 1.48 percent derived from § 538.220.

         Dr. Menges and Mercy Hospitals, and Dr. Cassat and Mercy Clinic, now appeal the trial court's judgment, and Lowe cross-appeals.[3] Drs. Menges and Cassat, their points considered together, (1) challenge the submissibility of Lowe's case against each of them; (2) assert instructional error; (3) contend the trial court should have granted a mistrial based on testimony of one of Lowe's medical experts; (4) complain that Lowe's life care plan and supporting testimony were erroneously admitted; and (5) cite the trial court's failure to adhere to § 538.220.2's mandatory formula for calculating the amounts of periodic future damages payments.

         Lowe, for his part, claims that the trial court erred by failing to award him a lump sum sufficient to pay his attorney's fees because § 538.220.4 creates the presumption that, where the plaintiff has not made different arrangements with counsel, attorney's fees "will be paid at the time the judgment becomes final." Lowe also faults the trial court for ordering pursuant to § 538.220.2 future payments to be subject to the fixed interest rate of 1.48 percent.

         We reverse the trial court's judgment solely as regards its damages award, on two grounds: (1) the court failed to adhere to § 538.220.2's mandatory formula for calculating the amounts of periodic future damages payments; and (2) the court violated § 538.220.4 by failing to award Lowe a lump sum sufficient to pay his attorney's fees. The case is remanded for entry of a new judgment in accordance with this opinion. In all other respects, the judgment is affirmed.

         Discussion

         I. Lowe made a submissible case of negligence against both doctors.

         Each doctor challenges the submissibility of Lowe's case. Dr. Menges contends Lowe failed to present sufficient evidence of a causal connection between Dr. Menges's actions and Lowe's injuries, while Dr. Cassat, for his part, asserts he owed Lowe no duty because he did not have a physician-patient relationship with him. We disagree on both counts.

         A. The submissible case against Dr. Menges.

         Viewing the record, as we must, in the light most favorable to Lowe, Wickhmd v. Handoyo, 181 S.W.3d 143, 147 (Mo.App.E.D. 2005), we find that Lowe made a submissible case that Dr. Menges caused his injuries.[4]

         Causation is established through expert testimony that there is a reasonable degree of medical or scientific certainty that but for the tortfeasor's conduct, the injured party would not have been damaged. Id. at 149. A court may reverse the jury's verdict for insufficient evidence only when there is a complete absence of probative fact to support the jury's conclusion. Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 26 (Mo.App.E.D. 2013) (en banc) (citing Keveney v. Mo. Military Acad, 304 S.W.3d 98, 104 (Mo.banc 2010)); Sanders v. Ahmed, 364 S.W.3d 195, 208 (Mo.banc 2012). Indeed, where reasonable minds may differ on the question before the jury, we cannot disturb the verdict. Wicklund, 181 S.W.3d at 147.

         Here, Lowe presented ample evidence that Dr. Menges caused or contributed to cause his injuries. At least two experts including Dr. James Matthews, whose opinions Lowe adduced regarding Dr. Menges's care, testified that Lowe had been suffering from mesenteric ischemia for several hours when he arrived at the emergency room on the evening of April 30, 2014. Both sides' experts agreed that it is important to treat mesenteric ischemia as early as possible since it is a "life-threatening condition" that may lead to-as it did here-bowel death. Dr. Menges himself testified it was his job to "rule out all current emergent problems" and ensure Lowe was stable before sending him home.

         After examining Lowe and reviewing his medical history, Dr. Menges ordered an abdominal CT scan without contrast. Radiologist Dr. David Knight interpreted the scan and reported that it showed the presence of gas "extend[ing] out into the periphery of the liver raising concern for portal venous gas." At trial, Dr. Menges agreed with Dr. Knight and Lowe's experts' testimony that portal venous gas may be a sign of mesenteric ischemia. Dr. Knight recommended to Dr. Menges that he order an ultrasound to determine whether the gas in the liver was "for sure" portal venous gas. Dr. Knight testified that his report "d[id] not rule out portal venous gas in any way." He also testified that portal venous gas is not a precursor to mesenteric ischemia, but that the gas is produced following the development of the ischemia, so when such gas is seen, "you have to rule out mesenteric ischemia," as "it can be a life-threatening finding." Dr. Knight stated that when the bowel becomes ischemic, the gas in the lumen of the bowel sometimes invades the bowel wall and "gets picked up by the portal venous system and travels to the liver."

         The jury also heard testimony that Dr. Menges was confronted with other indications that Lowe had mesenteric ischemia. Lowe had abdominal "pain out of proportion to examination" after eating, which Lowe's expert Dr. Paul Collier testified was "the hallmark of mesenteric ischemia." And Dr. Menges reviewed Lowe's extensive medical history which contained numerous risk factors for mesenteric ischemia, including peripheral vascular disease; atherosclerosis; hyperlipidemia; and having undergone coronary bypass surgery and the placement of cardiac and iliac stents. Dr. Matthews testified that "mesenteric ischemia can occur particularly if the patient is at risk for [vascular disease]."

         Nevertheless, in the early morning hours of May 1, 2014, Dr. Menges discharged Lowe home with instructions to call to schedule an ultrasound on an outpatient basis. At this point, Dr. Matthews opined, no permanent damage had likely been done, but in the days following the discharge, the ischemia developed unabated and unobserved until it destroyed nearly half of Lowe's bowel requiring several surgeries and resulting in a lifetime of needed care. Dr. Collier stated that "by sending him home, he ended up infarcting his bowel or having his bowel die."

         We find that in light of this evidence, the jury could reasonably have concluded that but for Dr. Menges's negligence, the hospital medical staff would likely have observed the progression of Lowe's mesenteric ischemia, made an accurate diagnosis, and treated it before such catastrophic damage resulted to Lowe's bowel. The jury did not have to speculate that Dr. Menges caused Lowe's injuries-rather, there was substantial evidence to support that finding.

         B. The submissible case against Dr. Cassat.

         We next turn to Dr. Cassat's claim that he owed no duty of care to Lowe because he and Lowe did not have a physician-patient relationship. We disagree. We find that Dr. Cassat, as the on-call physician for Lowe's emergency room treatment, owed Lowe a duty of care based on his contractual obligation as an employee of Mercy Clinic to provide assistance in the diagnosis and treatment of emergency room patients while on call.

         A physician's duty of care to a patient is generally derived from the physician-patient relationship. Millard v. Corrado, 14 S.W.3d 42, 46-47 (Mo.App.E.D. 1999). The law defines a physician-patient relationship as a consensual relationship where the patient or someone acting on the patient's behalf knowingly employs a physician who consents to treat the patient. Id. at 49. Where a consulting physician does not physically examine or bill the patient, a physician-patient relationship can still arise where the physician is contractually obligated to provide assistance in the patient's diagnosis or treatment and does so. Corbet v. McKinney, 980 S.W.2d 166, 169 (Mo.App.E.D. 1998).

         Here, Dr. Cassat had the contractual obligation to participate in Lowe's diagnosis or treatment, and he undertook to do so. Dr. Cassat testified that as a condition of his employment at Mercy Clinic, he served as the surgeon on call for the emergency room generally one night per week. Moreover, hospital policy required him to live within 20 minutes of the hospital so that while on call he would be able to go to the hospital if necessary. This is the sort of contractual obligation this Court considered in Corbet that would support a finding that an on-call physician was subject to liability. Id. at 169-70 (citing Fought v. Solce, 821 S.W.2d 218, 220 (Tex.App. 1991)).

         Dr. Cassat testified that emergency room patients arc treated using a "team approach" where "everyone," including the on-call surgeon, "has input into the care and treatment of that patient." He admitted that he would have traveled to the hospital to see Lowe if in his view Lowe had exhibited concerning findings. In short, it is undisputed that Dr. Cassat participated in the diagnosis and treatment of Lowe by taking Dr. Menges's call, discussing Lowe's condition, and recommending that Dr. Menges order an outpatient ultrasound.

         We acknowledge Dr. Cassat's policy argument that informal consultation between physicians regarding a patient is important and valuable and that finding a formal physician-patient relationship existed solely on the basis of an informal consultation among professional colleagues might have a chilling effect on such beneficial communications. But that is not this case. Here, Dr. Cassat was on call and had the contractual obligation to take Dr. Menges's call and participate in Lowe's care. In fact, the decision to discharge Lowe was based in part on Dr. Cassat's advice to Dr. Menges.

         We find therefore that there was ample support in the record that Dr. Cassat and Lowe had a physician-patient relationship giving rise to the duty of care Dr. Cassat owed Lowe in connection with his medical treatment.

         II. The trial court did not err in submitting the verdict-directing instructions as to both doctors.

         Both doctors raise claims of instructional error challenging the verdict-directing instructions. We first address Dr. Menges's assertion that Instruction 7, the verdict director addressing his alleged negligence, was erroneously submitted.

         A. There was no error in the submission of Instruction 7, the verdict-directing instruction as to Dr. Menges.

         Instruction 7 directed as follows:

         In your verdict, you must assess a percentage of fault to defendants Bryan Menges, D.O. and Mercy, whether or not, plaintiff Vincent Lowe or James Cassat, M.D. was partly at fault, if you believe:

         First, defendants Bryan Menges, ...


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