Court of Appeals of Missouri, Southern District, First Division
JOHN HENRY RHODEN, and DOROTHY JEAN WINFIELD, Plaintiffs-Respondents,
MISSOURI DELTA MEDICAL CENTER, Defendant-Appellant.
FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable David A.
Dolan, Circuit Judge
Steffen Rahmeyer, J.
Delta Medical Center ("Appellant") brings this
appeal from a jury verdict in a wrongful death case. We find
no error and affirm the judgment.
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.
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.
ease of discussion, we begin with Point II.
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,  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.
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).
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
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.
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
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.
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. 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
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). 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).
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,
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.
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).
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.
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.
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.
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