Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of of Franklin County 16AB-CC00047
Honorable Stanley D. Williams.
M. Dowd, Presiding Judge.
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 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 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.
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.
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
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.
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.
Menges and Mercy Hospitals, and Dr. Cassat and Mercy Clinic,
now appeal the trial court's judgment, and Lowe
cross-appeals. 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.
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
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
Lowe made a submissible case of negligence against both
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
The submissible case against Dr. Menges.
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.
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.
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.
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."
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
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."
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.
The submissible case against Dr. Cassat.
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
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
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)).
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.
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.
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.
The trial court did not err in submitting the
verdict-directing instructions as to both doctors.
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
There was no error in the submission of Instruction 7, the
verdict-directing instruction as to Dr. Menges.
7 directed as follows:
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
defendants Bryan Menges, ...