Josephine Wilson v. P.B. Patel, M.D., P.C., and Rohtashav Dhir, M.D.
WD78538
Mo. Ct. App.Jun 21, 2016Background
- Plaintiff Josephine Wilson had chronic reflux and dysphagia with prior esophageal dilations (2004–2005); she saw gastroenterologist Dr. Dhir in December 2009.
- Dhir performed endoscopy on December 8, 2009, observed no stricture, removed a small polyp, but then performed an empiric dilation using a large-bore dilator.
- The dilation caused an esophageal tear; surgical repair required thoracotomy and caused chronic pain.
- Wilson sued for medical malpractice alleging the dilation was negligent and unnecessary; she did not plead lack of informed consent.
- Trial evidence included discussion and a consent form; plaintiff’s counsel elicited parts of ASGE guidelines and did not timely object to informed-consent references; jury received the consent form and returned a defense verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/withdrawal of informed-consent evidence | Consent was irrelevant because Wilson did not plead informed-consent; court should have withdrawn the topic | Consent evidence was injected by both sides and was relevant to risk awareness; withdrawal after extensive use would be untimely | No abuse of discretion in refusing withdrawal instruction or in permitting counsel’s closing argument about consent; review for plain error fails because plaintiff did not object timely |
| Closing argument about informed consent | Counsel’s comments invited the jury to treat consent as waiver of negligence | Argument stayed within evidence introduced at trial (consent form and testimony) | Not plain error; trial court did not abuse discretion in permitting the argument |
| Introduction and later contextualization of ASGE guidelines / EoE evidence | ASGE excerpt quoted by plaintiff made empiric dilation contraindicated; court should withdraw EoE discussion and prohibit redirect that relied on other guideline parts | Defendant needed to present context (rule of completeness); plaintiff opened the door by quoting the guideline | No abuse of discretion in allowing defendant to use other portions of the guideline on redirect or in denying withdrawal instruction where plaintiff had introduced the guideline excerpt |
| Challenges for cause of two venirepersons | Both venirepersons expressed skepticism about lawsuits/physicians and should have been stricken | Both gave unequivocal assurances of impartiality on further questioning; trial judge observed demeanor | Denial of strikes for cause affirmed; trial court properly relied on voir dire rehabilitation and credibility observations |
Key Cases Cited
- Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127 (Mo. banc 2007) (abuse-of-discretion standard for withdrawal instructions)
- Gleason v. Bendix Commercial Vehicle Sys., L.L.C., 452 S.W.3d 158 (Mo. App. W.D. 2014) (trial court control over closing argument)
- Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008) (standard on striking jurors for cause)
- Brizendine v. Bartlett Grain Co., 477 S.W.3d 710 (Mo. App. W.D. 2015) (withdrawal instruction standards)
- Schwartz v. Johnson, 49 A.3d 359 (Md. Ct. Spec. App. 2012) (consent evidence irrelevant to negligence claim; potential jury confusion)
- Fiorucci v. Chinn, 764 S.E.2d 85 (Va. 2014) (consent evidence inadmissible when plaintiff alleges negligent, unnecessary procedure)
- Wright v. Kaye, 593 S.E.2d 307 (Va. 2004) (consent not tantamount to waiver of negligence)