*1 GOFF, Augustine Respondent, Debbe
ST. LUKE’S HOSPITAL OF KANSAS Crouch, M.D., and T. CITY Appellants.
No. 69604. Missouri,
Supreme Court of
En Banc.
May
Rehearing Denied June *2 Haldiman, Jacob, Jr.,
B.W. Robert C. City, T. Crouch. Kansas for DeBauche, Glynn, E. William Kevin J. Counsel, City, for St. Appellate Kansas Hosp. City. Kansas Luke’s Myerson, City, John W. Kansas Gordon Lewis, Springfield, for Debbe Goff. BLACKMAR, Judge. brought against St. suit City Kansas wrongful Crouch, M.D., for T.
Thomas husband, Augustine. Gary of her death against both a verdict jury returned $2,000,000. defend- Neither defendants verdict, challenges amount of the ant apportionment of for an and neither asked appeals reversed fault. The court defendants, for differ- remanded to both and, granted transfer reasons. We ent appeal, affirm taking on initial the case as remand hospital but reverse and as to the state the facts doctor. We as to the support have found claim. plaintiff’s years old at Augustine was 29 21,1980. hadHe July of his death on time plaintiff’s experts 16. The ing reading a good health until some- apparently enjoyed kidney opinion drop to 16 he lost his func- time glomerulonephritis. His significant should medically tion reason event which initially prescribed Springfield physician. have had the attention dialysis, regimen then a of home but that, least, They very prep- indicated at the sought hope transplant kidney give arations should have made been *3 solution. A cadaver more durable weekend, during the dial- blood over 26, and on June kidney became available dialy- ysis Monday. Prior to scheduled for transplant surgery performed 1980the was sis, however, Gary’s nothing done and was kidney Luke’s, designated is a at which St. Monday not notified. On was ap- transplant center. The was transplant taken, dialy- hematocrit was before another successful, kid- implanted parently but reading begun, sis had and the was rejected and was ney quickly rather was signifi- drop very The 16 to 10 was from 8, July Luke’s. on St. removed cant. and, Gary hospital remained at the because began July Gary Dialysis at 11:30on dial- functioning kidney, resumed he had during dialysis by was seen Dr. Janardana weekly. times ysis three Sharma, nephrologist respon- shared a who July During beginning Monday, the week sibility Crouch as his with the defendant 14, a problems appeared. There was some attending physician. Their detailed rela- grade decline in the hemat- low fever and a tionship fully in Part I of is described more ocrit, percentage of measures the opinion. this The time of Sharma’s visit person’s The normal red cells blood. during early pinpointed was not but reading kidney patient A hematocrit is 45. dialysis. He returned to his portion of the hematocrit, could usually has a lower but PM did the street at 1:30 and office across adapt, reading if the does not become too Gary he was again not see alive. When carry oxy- low. Red cells are essential to reading of of the hematocrit made aware gen lungs from the to the tissues and to office, 10, return to the Sharma after his important func- maintain other metabolic “type cross LPPC’s and issued orders may A decline patient’s tions. hematocrit and, “give dialysis” later to two today on of a loss of red cells or either because ready.” units LPPC’s manufacturing body red is not because to be an order reasonably have found this significant in an cells. A decline is more on Gary remained give the blood while (one patient supply whose of red anemic procedures the mechanical dialysis, when low) already in one in the cells is than order did faster. Sharma’s are easier and range, reserve normal because there is no urgency, there was not indicate that A hematocrit to fall back on. have used conventional although he could point, recognized by the marks a critical action.3 for immediate to call notations manual, and is hospital’s procedural the com- had arrived from ordered Blood as hospital to call the abnor- starred charts P.M., was by 3:15 and center munity blood mality to the attention of readers.1 matching to deter- for cross then available in the low twen- Gary’s hematocrit was Gary was At this time compatibility. mine This is he entered St. Luke’s. ties when dialysis. still on Following patients. not unusual for renal dis- dialysis progress other was While dropped to transplant of the it the removal Gary com- appeared. turbing symptoms then, next July on to 18. The 19 and symp- pain, which is of back Saturday, July yield- plained often taken on test was removed, Manual," leaving oxygen only the “Hematology been have Procedure 1. St. evidence, carrying listed "critical values as red cells. introduced requiring pathologists, clinicians notification nursing The critical hemato- stations." and/or crit level hospital’s immedi- word for is the code 3.STAT per cent." was "less than 20 (as possible) less ately. connotes ASAP soon used, ready,” urgency. "When the convention Leukocyte Poor Packed 2. LPPC’s stands for day. means sometime in which the white cells Cells. This is blood pressure through professional office cor- anemia. His blood of the tom severe dropped alarmingly poration, low- to 80 over an which is across the street. however, figure, pulse Sharma, and his rate rose substantial- Crouch and were attempting indicating body ly, employees was of the the trans- compensate of red paucity plant for the cells. center. Their services are billed administered to raise solution was professional corporation. Saline their Crouch and effect, some pressure the blood and had responsible for Sharma were the medical operated to dilute the this also further aspects patient’s including but problems, of the readings component. red cell following monitoring kidney of the function pin- a time reported to Dr. Sharma at and, course, surgery for the transplant record, may he pointed in the dialysis following resumption rejection Gary dialysis. off directed that taken transplant. They are removal event, dialysis, was terminated surgeons. surgery involved his room without returned to transplant kidney removal *4 having The was received blood. performed by surgeon a associated with obliged this return was to conclude that transplant center. Dr. at the direction of Sharma. hospital Dr. as The records show Crouch Subsequent be events need not described plaintiff admitting physician. The tes- Gary saw resident in detail. A understanding tified her that he was as to and directed room at 4:40 PM outside his charge Gary's in of care nephrologist STAT. Ad- that the blood be administered visit, treatment, although their initial and Gary’s room of the blood ministration Dr. long transplant, was before with 5:30 P.M. Five minutes begin did until out of town. Sharma Crouch was because called, emergency a later “code blue” was Gary Crouch visit Sometimes would indicating De- life-threatening situation. stay his and sometimes Sharma doctors, Gary died spite efforts of several pro- There is evidence that would. two hours later. about dis- corporation arrangement was fessional plaintiff Gary at with cussed with or Liability Dr. I. Crouch’s time, he Gary considered that any or that against Dr. is unusual case Crouch profession- had the services retained negli- is no claim that he was that there July Monday, corporation. On al respect. plaintiff gent any seeks to After Dr. left town on a vacation. Crouch solely him his hold on account of liable only nephrol- was the that time Dr. Sharma professional relationship Dr. Sharma. with no or- ogist attending Gary. Crouch left challenge jury’s find- does not Crouch Sharma, was Dr. who ders or directions for ing negligent. Sharma aspects charge medical complete long so as Crouch remained Gary’s of case certified Crouch and Sharma are board nephrolo- away. nephrologists. speciality of
gy has to functions and diseases do with Dr. Crouch against The case and They were stockholders kidney. fol by an instruction submitted professional corporation or- employees of a lows: 356, RSMo, Chapter ganized and under nephrologists plaintiff then affiliated for be verdict must Your Crouch, corporation. defendant, professional with Thomas T. M.D., you if believe: only nephrologists They were also First, Sharma was Doctor Janardana kidney transplant with the then affiliated his scope course of and acting within Arrangements for Luke’s. center at St. Crouch, defendant, Thomas T. for agency were made Gary’s and treatment care Augustine’s admis- M.D., during L. Gary through transplant center and New). (1965 (1965 Revision), New), M.A.I. 18.01 cites 21.01 4. The instruction M.A.I. Revision), (1981 (1983 M.A.I. 19.01 M.AI. 20.02
Rfil sion and argues treatment St. Luke’s Crouch that the evidence demon- City, Kansas legal theory holding strates no him
Second, negligence. plaintiff spouse points was the liable for Sharma’s He Gary Augustine, employees L. profes- to their status as corporation, suggesting sional
Third,
that the cor-
either Doctor Janardana Sharma
blood,
poration may
vicariously
timely
failed to
order
or
liable but that
participating in
negli-
shareholders not
timely given,
failed to see that blood was
gent
356.150,
act are not. Section
RSMo
or
in effect at
which was
the time of
adequately
failed to
monitor the lab re-
Gary’s treatment,6 reads as follows:
blood,
ports
Augustine’s
law,
Fourth,
Sharma,
chapter
This
shall not affect
Doctor Janardana
respects
one or more of the
duty, right
privilege arising
sub-
or
out
or
paragraph
mitted in
Third was thereby
applicable
relationship
between
negligent, and
person rendering professional services
Fifth,
services,
negligence directly
receiving
person
caused
and a
those
directly
to cause the
to,
contributed
death
including,
liability
but not limited
Gary Augustine.
L.
privilege arising
professional
out of the
services....
“Scope
of agency”
and course
was de-
fined as follows:5
argues
that Crouch is
Acts were
“scope
within the
jointly
liable because he and Sharma were
agency”
phrase
course of
as that
is used
treatment,
in Gary’s
involved
care and
cit
*5
in Instruction
10 if:
No.
Foundation,
ing Baird v.
Health
National
they
performed by
were
Doctor Ja-
(1940)
Mo.App.
This agency inappropriate is submission partner scope part of his within under the showing evidence. There is no nership’s professional activity, though even that right Crouch or had “controlled personally present or at fault.7 control” performance Sharma in the of his We need to decide do not what the professional record, rather, duties. The patient situation would be if the had been showed that and Crouch Sharma shared advised that Crouch and Sharma were em responsibility Gary’s care and treat- ployees professional corporation and present ment. While Sharma was and treating Gary were capacity. this not, Crouch give Crouch could not evidence as to what was made manifest to right directions to and had Sharma patient scanty. Gary is was admitted control. The on submission the basis of through transplant just quoted, then, “kidney the two clinic” and instructions evidentiary support through professional lacks and reversal is office required. corporation. It is the sense of the statute (1978 arising 5. The instruction cites M.A.I. 13.06 date Revi- after the effective of the amended sion). statute. statutory provision repealed, Crump Piper, supra, 6. This has been 7.In addition to and 356.171.1, Foundation, replaced supra, and extent Baird § some v. National Health see Clinic, appear might generally, Hosp. RSMo ty which to limit & liabili- Reed v. Sale Memorial professional person rendering (Mo.App.1985); Physicians ser- S.W.2d 931 C.J.S. Surgeons, vice. Our decision authoritative for is not cases & re- physician-patient ployment Hospital in force that the St. then Luke’s Kan- personal one, spite lationship City during Gary Augustine’s is sas L. ad- arrangement, corporation professional mission and Luke’s treatment at St. Hos- origin in considerations. has its tax pital City, which of Kansas under- patient find that the Third, employees failed defendant’s nephrologists, two Crouch that the stood policy its critical of blood follow values Sharma, jointly responsible for procedure, or claims have Malpractice his medical care. adequately failed to monitor the lab re- tort of contract law.8 aspects both of blood, ports Gary Augustine’s L. or great im- understanding is of patient’s blood, timely failed to order portance. timely given. failed to see that blood was that the action Dr. We conclude Fourth, defendant St. and remanded should be reversed Crouch City, more of of Kansas one or fully proceedings. We cannot for further respects paragraph submitted in Second might issues be devel- anticipate the thereby negligent, and remand, or additional evidence oped on Fifth, negligence directly might pursuant offered to the hold- caused directly opinion, to cause the death ing of and so will comment contributed this Augustine. express do we conclusion L. further. Nor comparable under the stat- situations about course, error, prejudicial un- There ute now force. four of the set forth in less all alternatives supported Third substan- paragraph are Hospital’s Liability
II. The they are We conclude that so tial evidence. hospital argues plaintiff did supported. against it. It not make a submissible case 19, the Saturday morning, July hospi- On asserts, prac- appropriately, that it does not aware of he- employees tal’s became its em- everything tice medicine and that reading of is well below matocrit ployees did was with the instruc- consistent According to hospital’s critical values. Dr. error tions of Sharma. It also asserts *6 experts, in the exercise of plaintiff’s the director trial error. the verdict and other care, should physician a resident have due that errors We conclude none of the arrangements give blood sometime to made claimed is established. weekend, or, very least, the at the report reading low to Dr. Sharma as to the Negligence The A. Evidence of attending physician, in which case the the hospital argues The defendant that decisions to hospital might be to leave able negligent. there is no evidence that it was There is evidence him. point can best considered in the The Sharma no indication that saw report, and light plaintiff’s verdict director Sunday. There Saturday or patient on the hospital, the reads as fol which then, findings of “failure support for was lows: policy of blood its values follow critical to Plaintiff and Your verdict must be for failure “to ade- and of procedure” Hospital of against defendant St. Luke’s is reports.” It not monitor the lab quately City you if Kansas believe: particular em- point necessary to to First, plaintiff spouse Gary person was the the hospital the as ployee of Augustine, necessary fault, L. it is to any more than supermarket
Second, employee which employees the of St. decide dangerous condition acting have noticed a City should of Kansas for a to existed sub- scope their em- shown have within the and course of which is (1983 Surgeons 20.02 Revi- generally, Physicians cites M.A.I. & 9. The instruction 8. See C.J.S. Revision, Modiñed, (1981) sion) M.A.I. 19.01 64(a) pp. 458-459. New). (1965 18.01 M.A.I. expert testimony plaintiffs 5:30 P.M. The If noticed the time.10 stantial action; important, every hour was indicated that reading he or she should taken dropped especially the hematocrit to not, employees should have after hospital if Monday morning. qualified to make reported someone it to might jury also find a fail- The decisions. negligence four con- particulars The part give prompt to hospital’s ure on the then, director, are tained the verdict Monday proper attention supported It follows that by the evidence. of 10. plaintiff made a submissible case negligence. supports To so hold does make the also a conclusion The record hospital practicing for medi- hospital timely responsible “failed to order that hospital require Nor resi- The record shows resident cine. does it blood.” that guess authority employees dents or other to second physicians had the to order blood negligence attending physician. and to cause it to be over the weekend hospital’s duty to administered. If asserted relates to the it were felt that blood carry provide patient, administered without care for should not have been physicians’ he out orders. We must remem- approval, could have been Dr. Sharma’s hospital con- possibility patient that the is Another would be ber notified. attending physician sees Monday stantly, while the blood to be available order suitable Hospital employees, him Gary briefly. was scheduled morning, next physicians, may be called ordered so whether dialysis. Blood sometimes needed, upon judgment if inconsistent it be available even exercise that will orders, at- given. physician’s that it with the when the though it is not certain will be tending present or might hospi- physician is not avail- jury also believe that the found employees proceed quickly did not as able. The could have several tal so by prompt action gave after Dr. instances in they should have Sharma hospital employees would have made July hospital order on the blood long sooner. dialysis how was blood available employees knew continue, expected to and could have ad- argues hospital also bank that blood needed vised the blood was to establish causation. plaintiff has failed They meet this schedule. cannot time to septi- died of a Its is that basic claim Dr. asserting themselves excuse caemia, autopsy finding shown gave Sharma no STAT ASAP order. blood, and that the low staphylococci in the They the blood be need- knew when would contributing not a red cell content carry ed out his in order orders. plaintiff’s experts concede factor.11 The infection, but are possibility is also evidence that the of such an There the anemic condi giv- positive saying promptly “failed to see that blood tion, constant decline as evidenced delay en.” In addition to over *7 patient’s hematocrit, to the weekend, hospi- also the contributed jury the find the the way to raise hemato- delay of death. The tal at fault for the more than two quickly give Time was of the crit to blood. the arrival of is hours from blood witness said that the essence. One beginning of the transfusion. Blood can major of “a cause given efficiently during dialy- lack of red cells was much more is causation met. sis, his death.” test of yet patient was returned to The Co., 708 Ray Kruse Const jury did not have to find that Jackson v. room. The 1986). (Mo. might 664, n. 6 banc It S.W.2d 669 ordered return. Dr. Sharma reject jury. We also explain why issue is for the hospital blood expect hospital’s cross-examination until claim that the 3:15 was not administered received at 80, post-mor- Co., delay taking the Kroger in Kg., 84 tion. There was Brown v. 344 S.W.2d (Mo.1961). suggested specimen tem and one witness might proliferated after death the bacteria septicaemic evidence of infection 11. The blood, culture is an excellent medi- in the No blood culture taken while not conclusive. um. patient was alive showed bacterial infesta- 564 expert testimony so uncertain dicial. governing 84.13(b)
rendered rule is Rule support that it could not the essential find as follows: ings. merely The cross-examination raised Materiality appellate of Error. No evaluate, questions jury to in the for the any judgment court shall reverse unless context of the entire record. Goslin it finds that error was committed Kurn, 351 Mo. 173 S.W.2d against appellant trial court material- (1943). ly affecting the merits of the action. We conclude that the omission of “and” Trial Error B. prejudicial. Paragraph was not Third con ad The defendant has two hypotheses disjunctive, tains four in the criticisms of the verdict director ditional separated by “or.” It is difficult to see conjunc against quoted it as above. any juror literate how could conclude that tion, paragraph “and” is omitted between did not have to find the facts Fourth, period paragraph Third and with Fourth, paragraph submitted in in addition para end of rather than a comma at the para one of the alternate submissions of paragraph Fourth re graph Third. Then graph ground is no Third. There for confusion. respects negligence fers to sub Mirbaha, ., Cf Lee v. 722 S.W.2d Second, paragraph whereas the mitted (Mo. 1986) (finding preju banc particulars negligence are submitted error in of “these” in con dicial the use paragraph Only first of these Third. instructions, appropriate verse complaints challenged in the motion for is responsive word would have been trial, Item 20 of which reads as fol new “this.”) lows: Townsend, In Kirkendall v. 559 S.W.2d submitting plain- The court erred confront- (Mo.App.1977), the court was directing tiffs Instruction No. 8 verdict the “and” ed with an instruction which St. Luke’s since the ver- paragraphs had been omitted between all erroneously dict director eliminated the directing The trial of a verdict instruction. conjunctive “and” at the end of the third basis, granted had a new trial on this court proposition No. 8 and of Instruction be- appeals affirmed. The and the court proposition fore the fourth of Instruction holding appropriate judg- because the is 8,No. of M.A.I. 20.20. direct violation preju- of the trial court on matters ment Rule 70.03 of our reads as follows: rules great weight. is entitled to dicial error motion trial court overruled the object
Counsel need not instruc- Here the trial, holding entirely our given request any for new and so tions to be at the so, Even party consistent with Kirkendall. other the court on its own expresses opinion dissatisfac- or to instruc- Kirkendall motion the refusal of in which the least requested by Specific tion with a situation party. tions- new typographical error mandate a objections to re- would instructions shall be quired in motions for unless trial. new trial making trial. The objections
made at Louis defendants cite Brown v. St. preclude making trial shall not Company, Public Service objections additional to the same or other 1967), (Mo. proposition that for the banc instructions in the motion new trial. patterns re- from the MAI any deviation general No objection instructions is perfectly made unless “it is quires reversal required. the instruction proponent clear *8 resulted from have hospital preserved only prejudice the that no has fail- distinguish- is The case conjunction, ure insert the “and.” The such deviation.” to place, In first mix-up paragraphs for several reasons. complaint about the able attempts at deliber- directed toward not mentioned in the new trial motion. it was was from, attempted “improve- 70.02(c) By from MAI is ate deviation Rule the deviation Instructions, of, in order to error, MAI required to determine ment” but we are counsel should that preju- it clear to the bar the omission of “and” was make whether
565
This is in line with
prejudicial.
own
it
of their
not to
not substitute variations
opinion expressly
cases,
appellate
dis-
the MAI text. The
other
which the
recent
holding
of
that all
claims
intention
great
to the conclu-
give
courts
deference
require re-
variances
typos
inadvertent
judge
prejudicial
trial
as to
sion of the
Secondly, the trial court in that
instruction,13
versal.
and are
of errors in
effect
of
granted a new trial because
case
error
does
to reverse for
which
reluctant
patterns,
and so the
deviation from
prejudice.14 It
is
give
not
indication of
proponent
the instruction had the bur-
of
to
that a
appropriate
nevertheless
observe
demonstrating
appeal.
on
den of
error
lawyer
something
oppo-
finds
in his
who
Third,
purpose
opinion
in that
we sense
may adversely af-
instruction
nent’s
long-established
departing from
of
up
presentation
jury may speak
fect
84.13(b), quoted
proposition of Rule
time,
in an effort to obtain the best
require
does
reversal
above.12 Brown
not
legal
lawyer
for his client. The
submission
in this case.
doing
do
not
to
who does not
so is
his best
is
jury,
before the
but rather
win the case
argu
in its
hospital,
The defendant
is in.
thinking
appeal
of
the verdict
before
that the
jury, clearly
ment to the
stated
silent is
to
lawyer
of
who remains
entitled
to establish each
the five
plaintiff had
70.03,
Rule
but is
entitled
set forth in the verdict di
under
propositions
review
plaintiff squarely took on each
is
prejudice
rector. The
to
unless
established.
reversal
Third,
paragraph
of
of the alternatives
teaching
This
of our recent cases.15
is
negli
argued
record
demonstrated
to
in evi-
plaintiff was allowed
read
respects.
prop
It is
gence
each of these
deposition Donna
portions of the
of
dence
arguments
er to consider counsels’
deter
as
Cling,
employed
St. Luke’s
a nurse
mining prejudicial
Hyatt,
error.
v.
Welch
dialysis”.
St.
“supervisor of
incenter
(Mo.
1979).
905, 914
We
578 S.W.2d
banc
ground
objected on the
that
persuaded
that
should
are
we
reverse
that she
un-
plaintiff had
shown
assigned.
the trial court for the reason
57.07(a)(3).
required by Rule
available as
plain
Nor
find
error in the
do we
argument
with the
countered
paragraph
confusion between
Second and
Cling’s
could be received
that
statements
eye
paragraph
may
Third. We
raise an
her
Luke’s because of
as admissions
St.
proofreading
brow at the lack of careful
over-
supervisory position. The trial court
importance,
we
a case
this
but
cannot
appeals
objection. The court of
ruled the
say
was misled
require
reversal.
error sufficient
found
required
it
issues
to decide. Because
preservation
we do not
failure
agree
there was error but
We
views,
judge’s
benefit
trial
though the
Even
prejudice.
do not discern
and we decline to reverse him.
posi
supervisory
important
an
witness had
managerial person
not a
tion she was
Failure of the defendant
to ob-
constitute admissions
given
whose statements
ject before the instructions were
acting within
her
nor was she
pail
employer,16
jury plays no
in our decision. We
she
employment
her
preserved
scope
the error
and find the
have reviewed
Inc.,
512.160.2,
Texaco,
84.13(b)
14.
712 S.W.2d
Rule
from
Cornell v.
12.
derived
1986);
(Mo.
(L.1943,
140).
p.
v. Jewish
Lawton
sec.
banc
RSMo 1986
Louis,
(Mo.App.
S.W.2d
374-75
St.
1985).
See,
Normandy Osteopathic Hospi
v.
13.
Brickner
tal, Inc.,
(Mo.App.1985), and
made the statement.17 She plaintiff deposition condoning previously at the instance fear the error as- hospital.18 She party not as an officer of the A serted. confronted with an errone- Gary’s in participated ruling may expected is not shown to ous be to take reason- Testimony open in court remains the care. steps able to blunt the effect. testimony excep- deposition rule objects trial showing unavailability. Luke’s also to the tion, requiring a St. present Dr. court’s refusal to allow it to necessarily error does not re But Wiegmann expert Thomas as an additional Prejudice appear. must quire reversal. The initial of denial was witness. order 84.13(b). deposition testimony Rule go entered the trial scheduled to oath, parties all hav given under with 1985, 28, pro forward on October and the right full examination. The wit ing the to posed had not listed until witness been said, report essentially, that she would ness postpone Then there was a October 21. reading which was below 20 a hematocrit 21, January 1986. Luke’s ment until St. responsible physicians, and that with argues change a sufficient that there was probably would of 18 or blood so that it should not be of circumstances St. given. This is consistent with be expert testi denied the additional witness in evi procedural manual received Luke’s mony Although it desired. the trial court express disagree dence. St. Luke’s did not maintaining in great has discretion to chal ment and did not call witness pretrial pro tegrity discovery prior lenge testimony. There is no reason to deny party ceedings, it should hesitate to Cling’s testimony open assume testimony. right important St. to deposi from the court would have differed Luke’s, however, point out on has failed testimony. circumstanc tion Under these court, us, the trial and to the record of es, apparent. prejudice to St. Luke’s is not Wiegmann. expected Dr. testimony it from argues that the trial St. Luke’s interrogato supplemental Its answers judge compounded the error when he ries, indicate filed October portions of would not allow it to read other and do not indicate areas to be covered The tri Cling’s deposition its case. experts. plaintiff’s disagreements with ruling al is consistent with his ma court’s made at trial. We further offer was No premise plaintiff could read jor harmed determine how it was are unable to portions depositions as admissions. This relieves us of determin by the denial. correct, had no If this were the defendant dis abused its ing the trial court whether right portions as sub read additional cretion. held, As we have how stantive evidence. Hospi- judgment St. ever, assumption judge’s was not the trial against Dr. judgment is affirmed. The tal right correct, and Luke’s had as much St. case is remand- and the Crouch is reversed deposition as the to read from may proceedings as further reversal, ed for such is not entitled to did. St. Luke’s indicated. however, proof made no offer of because it portions deposi
as to the additional offer, to read.19 The tion which it wanted HIGGINS, J., BILLINGS, C.J. and prejudice, pointing up the contention concur. appel at the essential condition of relief an made Luke’s could also have late level. St. J., in result. ROBERTSON, concurs and, if she bring the witness an effort J., separate DONNELLY, dissents unavailable, then read from the attempt opinion filed. to fol- deposition. But it made Agency, Development Lines, 17.See, Cf., v. Bi-State e.g., Annin Roush v. Alkire Truck (Mo.App.1983). S.W.2d 382 (Mo.1957), Highway State S.W.2d 518 Missouri Co., 612 Howard Construction Commission v. Hauling Rigging, Haggard E.g., & Karashin (Mo.App.1981). 1983). Inc., (Mo. banc 653 S.W.2d
567 . JJ., RENDLEN, and only WELLIVER that “when instruction is abstract- concur separate dissent and in ly balancing erroneous there is for a need DONNELLY, dissenting opinion J. balancing in this instance indicates that Hudson v. necessary.” trial is not new DONNELLY, dissenting. Judge, Carr, 668 S.W.2d In Brown v. St. Public Service Louis Park Corp., Fowler v. In 673 S.W.2d (1967), Company, 255, 421 this S.W.2d (Mo. 1984), wrong MAI banc deviation held that “where there is Court given instruction on standard of care was applicable from an MAI instruction which Court, in behalf and the without need the facts does not modification under Brown, mentioning placed the burden case, particular prejudicial error will party op- demonstrating prejudice on presumed perfectly unless be it is made posing the instruction held “that we proponent instruction clear should reverse for defects of sub- prejudice from that no could have resulted potential preju- stance with substantial deviation.” dicial effect.” holding Brown The rationale for the that Fowler was an un said It must be Judge articulated Ben W. Swofford warranted and unwise extension of Hud 160, 163 Hoffman, v. McGowan Dzur, v. son. See Points 713 S.W.2d (Mo.App.1980): Corp., Abshire v. Nordson (Mo.App.1986); Supreme state with Court of this J., (Stewart, 2 (Mo.App.1985) 688 S.W.2d worthy laudable intent and and efficient MAI Er Behr, dissenting); McCarter adopted aspiration MAI and ruled so as Corp.: Preju Fowler v. ror Park upon very to enforce and bar a After the bench Not?, dicial or (July- 41 J. of Mo. Bar 308 compli- strict code of restriction 1985). Fowler August But remains intact. use, mandatory ance with its of which all savings judicial has effected a vast I dissent. taxpayers' money. time and But
gate of compliance restriction and must justice the interest of fundamental be Thus, ajar.
left somewhat from the con- law, binding
sistent and decisional since 70.02, adoption of MAI and Rule
principle has evolved that courts faced or impermissible
with violations modifica- gauge tions of MAI prejudicial must Missouri, STATE effect thereof. Such defect submis- Plaintiff-Respondent, sion of a case must be shown to be v. non-prejudicial given. It before it can PERKINS, Alan Kurt appears to this it must be Court Defendant-Appellant. shown, judicial and the mind and con- posi- science satisfied of some by means No. 52599. “preju- logic, tive force of fact or that no Appeals, Missouri Court of effect” has erro- dicial resulted from the District, Eastern instruction. to make neous The burden Division Three. showing upon party this offer- rests ing the instruction. May Carr, (Mo. Hudson In 668 S.W.2d 1984), damages, an instruction tak- banc on change, without given MAI
en from plaintiff. on
behalf Defendant asserted MAI
appeal that under the evidence the instruction should been modified. circumstance, held, in such
The Court