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Rhoden v. Missouri Delta Medical Center

Court of Appeals of Missouri, Southern District, First Division

December 30, 2019


          APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable David A. Dolan, Circuit Judge

          Nancy Steffen Rahmeyer, J.

         Missouri Delta Medical Center ("Appellant") brings this appeal from a jury verdict in a wrongful death case. We find no error and affirm the judgment.

         In the light most favorable to the verdict, the evidence relevant to the points relied on includes the following: Mr. Rhoden, the deceased, had prostate issues for several years. He was treated by physicians in Missouri Delta Medical Center, including D r. Killion and Dr. Rankin. At some point, Mr. Rhoden developed urinary complaints; he felt that his urine force was not as strong as he would like and he felt like he could not completely empty his bladder. Mr. Rhoden was not in need of emergency surgery, was able to urinate without pain and had no problems with incontinence or post-void dribbling. Dr. Killion recommended an increase in the current medication prescribed to Mr. Rhoden; however, Dr. Killion did not recommend waiting to see if the increase in medication would work or if another medication would work, but instead scheduled surgery, telling Mr. Rhoden his two choices were surgery or self-administering a catheter for the rest of his life. Mr. Rhoden had other health issues, including being an insulin-dependent diabetic, obese and hypertensive, all of which increased the risk of surgery. Plaintiff's expert testified that given Mr. Rhoden's history, he was a high-risk candidate for surgery.

         Dr. Killion admitted that it would have been acceptable to wait to see if the increase in medication would work given that Mr. Rhoden was a high risk candidate for surgery. Dr. Killion did not recommend alternatives such as: transurethral microwave treatment, a procedure that did not require surgery; other medications; or doing nothing for such minor symptoms. Appellant's own expert agreed that Mr. Rhoden's symptoms did not show a surgical emergency and that there were other medically acceptable options. Dr. Killion performed a transuretheral resection of the prostate ("TURP") and a transurethral incision of the bladder neck ("TUIBN"). Suffice it to say, the necessity and outcome of the surgeries, the subsequent treatment and lack of treatment, and the death of Mr. Rhoden provide the issues that are the subject of this appeal.

         For ease of discussion, we begin with Point II.

         Point II

         Appellant claims in its second point that the court erred in submitting Instruction No. 11 for aggravating circumstances damages because it misstated the law for punitive damages. Appellant argues that section 538.210.8, RSMo, [1] provides the standard as "willful, wanton or malicious" and not "complete indifference to or conscious disregard for the safety of others." Respondent contends that Appellant has not preserved its claim in its second point. At trial, Appellant objected, "Judge, I object to the submission of punitive damages or aggravating circumstance and particularly with the standard of conscious disregard to the jury." Clearly, that vague statement did not preserve the objection for appeal.

         Rule 70.03 provides that Appellant must register a specific objection to the verdict director. Edwards v. Gerstein, 363 S.W.3d 155, 170 (Mo.App. W.D. 2012). The rule states in part: "Counsel shall make specific objections to instructions considered erroneous. No party may assign as error the giving or failure to give instructions unless that party objects thereto on the record during the instructions conference, stating distinctly the matter objected to and the grounds of the objection." Rule 70.03. The purpose of that rule is that it allows the trial court to "make an informed ruling on the validity of the objection." Berra v. Danter, 299 S.W.3d 690, 702 (Mo.App. E.D. 2009).

         Appellant, however, claims that the lengthy discussions with the trial court regarding the proper standard in the verdict director was preserved because the trial court and the parties were well aware of Appellant's objection to the verdict director. A review of the discussions during the instruction conference does indicate that the court and the attorneys were well aware of the discussion regarding the appropriate standard for punitive damages. We will address the merits of Point II.

         There is no question that the court used the appropriate instruction from MAI, MAI 10.07. The instruction provided that Appellant was liable for damages for aggravating circumstances if Appellant showed "complete indifference to or conscious disregard for the safety" of Mr. Rhoden. Appellant contended at trial and to this Court that the proper standard for aggravating circumstances should be taken from section 538.210.8, which is that Appellant would be liable for aggravating circumstances damages if Appellant showed "willful, wanton or malicious" conduct.

         Appellant argues that the trial court should have recognized "that, despite the language of MAI 10.07 and the holding in Koon, the statutory language prevails over the MAI." See Koon v. Walden, 539 S.W.3d 752 (Mo.App. E.D. 2017). Appellant's contention that section 538.210.8 controls is not supported by any case law. The exact argument that Appellant is making here was made in Koon. In its well-reasoned opinion, the appellate court held:

Because these words and phrases are essentially synonymous in this context, an act that is found to have been done with complete indifference to or with conscious disregard for the safety of others is also an act constituting willful, wanton or malicious misconduct. The words used in MAI 10.07 correctly set forth the substance of the applicable law in Section 538.210.6 and are not a misstatement of or in conflict with the law.

Id. at 772; see also Bell v. Redjal, 569 S.W.3d 70, 89 (Mo.App. E.D. 2019) ("For purposes of punitive damages, acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious disregard for the rights or safety of others."). The trial court did not err in using the punitive damages instruction as set forth in this case based on MAI 10.07. Point II is denied.

         Point I

         Appellant claims the trial court erred in submitting aggravating circumstances damages to the jury and in denying Appellant's motion for directed verdict and motion for JNOV because the claim for additional damages was not supported by clear and convincing evidence that the health care providers demonstrated willful, wanton or malicious conduct.[2] Respondents respond that Appellant's first point was not preserved because it did not raise the claim in a motion for directed verdict at the close of all the evidence.

         To preserve the question of submissibility for appellate review in a jury-tried case, a motion for directed verdict must be filed at the close of all the evidence. Browning v. Salem Memorial Dist. Hosp., 808 S.W.2d 943, 949 (Mo.App. S.D. 1991). "A motion for a directed verdict shall state the specific grounds therefor." Rule 72.01(a).[3] Failure to move for a directed verdict at the close of all the evidence waives any contention that plaintiff failed to make a submissible case. Browning, 808 S.W.2d at 949. Similarly, a motion for directed verdict that does not comply with the requirements of Rule 72.01(a) neither presents a basis for relief in the trial court nor preserves the issue in the appellate court. Dierker Assoc., D.C., P.C. v. Gillis, 859 S.W.2d 737, 742-43 (Mo.App. E.D. 1993).

         Appellant raised twenty-two purported grounds for a directed verdict in a written motion. Appellant did not preserve the issue in writing. Appellant makes its claim via an oral request during the trial. After filing the directed verdict motion at trial, Appellant stated:

I would like to specifically argue and point out that there is no submissible case whatsoever on the issue of punitive damages or aggravating circumstances. I don't believe there has been any evidence adduced whatsoever this [sic] rises to the level of an aggravating circumstances [sic].
In addition, since this is a medical malpractice case it comes under Chapter 538, even though it is wrongful death, and as such this is a completely different standard for aggravating circumstances or punitive damages than there is in a regular civil tort case.

         There are virtually no other statements by Appellant's counsel. Generally, a claim for directed verdict on partial damages that does "not identify evidence related to damages as an issue on which [Appellant] is entitled to a directed verdict" presents no basis for relief. Trimble v. Pracna, 51 S.W.3d 481, 502 (Mo.App. S.D. 2001).

         Although it appears the "oral" motion has little specificity to pass muster with Rule 72.01(a), case law indicates that the bar is set low for a motion for directed verdict. See Tharp v. St. Luke's Surgicenter-Lee's Summit, LLC, No. SC96528, 2019 WL 6710292, *3 (Mo. banc Dec. 10, 2019) ("The Rule 72.01(a) standard, however, is not a demanding one."). Therefore, we will address the merits of Appellant's motion for a directed verdict.

         In the light most favorable to the verdict, the evidence shows a complete indifference to or a conscious disregard for the safety of Mr. Rhoden. Initially, when Mr. Rhoden presented with mild prostate issues, Dr. Killion proceeded with the highest risk option of surgery. Dr. Killion admitted Mr. Rhoden did not have painful urination, no incontinence, and was not in an emergency situation. It was also clear that Mr. Rhoden was a high risk candidate for surgery with multiple medical issues. Dr. Killion did not wait to see if the prescribed medication resolved Mr. Rhoden's issues. Dr. Killion presented to Mr. Rhoden a choice of immediate surgery (TURP) or catheterization every day for the rest of Mr. Rhoden's life. Clearly, the evidence indicates those were not Mr. Rhoden's only two choices.

         Dr. Killion committed common law negligence when he re-sected too much of the prostate and created a "shelf." To remedy the creation of the shelf, Dr. Killion conducted additional surgery (TUIBN), even though he knew it increased the risk of bladder perforation. This was exactly the wrong thing to do and breached the standard of care, again common law negligence. Dr. Killion should have left the resection alone and not gone deeper, and used either a curved catheter, called a coude catheter, or a catheter guide to make sure the catheter went into the bladder and not through the area weakened by resecting too much tissue. The TUIBN created a path for the catheter to follow but weakened the area of the bladder neck by resecting tissue, allowing the catheter to go outside the bladder and into the retroperitoneal area.

         After breaching the standard of care, it was what occurred after the surgeries that constitutes aggravating circumstances. The evidence was clear that abdominal pain is out of the norm after a TURP surgery. Almost immediately after the surgery, Mr. Rhoden was in tremendous abdominal pain, and received morphine. The first note from the nurse indicated severe abdominal pain, 9 out of 10, which required morphine. The ...

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