655 S.W.2d 695 | Mo. Ct. App. | 1983
This is a medical malpractice case. Defendant Dr. Ivan Myer, is a doctor specializ
Plaintiff sued defendant for negligence, alleging defendant failed “to remove the ovary
The trial court sustained defendant’s motion for a new trial on three grounds. For our purposes, only the first ground need be considered.
“1. The Court erred in allowing Dr. Bergmann to testify by deposition in response to a hypothetical question which in part was based on an assumed fact never admitted into evidence^] Assume that the defendant 'did not check’ the pelvic area.”
Defendant argues this ground is sufficient basis for the grant of a judgment in his favor. In support of this contention, defendant makes the following more specific arguments. In medical malpractice cases, the plaintiff bears the burden to prove the defendant’s actions fell below the standard of skill and care exercised by the ordinarily careful and prudent physician, e.g., Williams v. Chamberlain, 316 S.W.2d 505, 510 (Mo.1958). With few exceptions not perti
As noted, plaintiff alleged that defendant was negligent because he failed “to remove the ovary in accordance with his representation and alleged intention.” Plaintiff’s submitted theory of negligence, however, was broader and more inclusive. Plaintiff’s verdict directing instruction permitted the jury to determine whether defendant was negligent if he “failed to remove all the ovarian material on the left side” during the first operation.
“Q. Assuming that a doctor does a tube and ovary removal and he does not do what you said he should do and what you advise and what should be done, in other words, he does not check to see whether there’s a growth or cyst or ovary or injury in the area of the urinary tract, then under those circumstances with that assumption that he did not check, is that a failure to check to determine to discover those things I have described a failure to exercise that degree of skill, care and proficiency that is ordinarily exercised by an ordinarily careful and prudent physician under the same or similar circumstances?” [Emphasis added].
Dr. Bergmann answered: “Yes.” In short, according to Dr. Bergmann, defendant was negligent because he “did not check” the surgical area in question.
A hypothetical question must be predicated on facts in evidence and must not assume facts not in evidence. Garrett v. Joseph Schlitz Brewing Co., 681 S.W.2d 652, 654 (Mo.App.1982). However, rational inferences of fact drawn from direct evidence may form a sufficient basis for a hypothetical question. Winters v. Sears, Roebuck & Co., 554 S.W.2d 565, 573 (Mo.App.1977). Plaintiff apparently assumes there was no direct evidence that defendant “did not check” the surgical area in question,
We find plaintiff’s logic questionable, at best.
“RE-CROSS EXAMINATION
Q Doctor, you just testified that in your opinion that it could have been felt?
A Yes.
Q Do you have an opinion, Doctor, as to whether or not in doing a hysterectomy at that time and the feeling of it would have caused whoever was doing the hysterectomy to have gone into surgery? Do you know what size it would be to let you make that type of determination?
A No.
Q Is there anything that a surgeon might feel when he’s doing an operation which would not necessarily cause him to do further surgery or know that an injury or further surgery was necessary?
A Sure.
Q Could this be one of those things?
A Yes.
Q It could be?
A Yes.
Q So, you’re not saying that as a matter of reasonable medical certainty that when Dr. Myers did this previous operation that he should have or could have felt a mass that would have made him conclude that further surgery was necessary; are you?
A I think I specifically testified to the fact that it would be advisable to check the urinary tract to see the injury or other obstruction, but I didn’t say he had not done that, because I don’t know.
Q And even if he had I am not certain that he did or not, but let’s say he did, and if he had of checked it, you are not certain that he would have discovered this; are you?
A No.
Q And it is not your opinion that he would be negligent for failing to discover this mass; is it?
A No.” [Emphasis added].
Whether cursorily read or carefully parsed by a secular exegesis, the sensible meaning of Dr. Bergmann’s testimony on recross examination remains the same. It contradicts his redirect testimony that the ovarian mass in question was palpable at
Accordingly, we vacate the order of the trial court granting plaintiff a new trial and we reverse the trial court’s denial of defendant’s after trial motion for judgment in accord with his motion for directed verdict. We remand the cause and direct the trial court to enter judgment in favor of defendant in accord with his motion for a directed verdict.
. Dr. Bergmann testified by deposition.
. The peritoneal cavity is covered by a membrane which, according to Dr. Bergmann, is one to two millimeters thick. According to Dr. Bergmann’s testimony, then, the ovarian mass must have been behind this membrane.
. In her pleading, plaintiff alleges defendant failed to remove “the ovary” but does not specify which ovary. However, plaintiff also alleges this ovary obstructed the left kidney. From this, we infer plaintiff alleges that defendant failed to remove the left ovary.
. The other two grounds are:
“2. The Court erred in giving Instruction No. 9 in that it misdirected the jury by directing: ‘Yet each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance ' and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict.’ This was in direct conflict with Instruction No. 8 which directed that only nine of their number was necessary for a verdict.
3. Looking at the evidence in a light most favorable to plaintiff the evidence was insufficient to establish the size of the ovarian mass at the time of defendant’s operation therefore whether or not it was discoverable under all the circumstances.”
. Dr. Wissner, the obstetrician-gynecologist who assisted Dr. Bergmann during the second operation, was called as a witness for defendant. Dr. Wissner testified that, upon reflection, he believed the mass removed during the second operation was a supernumerary ovary; i.e., a third ovary formed by ovarian cells which migrated from the normal ovaries. Plaintiff’s submission of the failure to remove all ovarian material on the left side includes the failure to remove a supernumerary ovary. This submission is broader than plaintiff’s allegation of failure to remove “the [left] ovary.” However, the propriety of plaintiffs submitting a theory of negligence broader than the theory pleaded is not before this Court.
Also, the question of whether plaintiffs verdict directing instruction submitted sufficient ultimate facts to define plaintiffs precise theory of negligence is not before this Court.
. As part of plaintiffs case, plaintiff read the following answer of defendant from defendant’s deposition:
“Q When you visualize [sic] her ovaries did you see any additional ovary material?
A We explored her pelvis and there was no other abnormality, we followed her with pelvic exams after that and didn’t feel anything either.” [Emphasis added].
If plaintiffs theory of negligence was that defendant “did not check” the surgical area in question, the purpose of reading into evidence this “admission” from defendant’s deposition is unclear.
.As noted, defendant operated on plaintiff six months before Dr. Bergmann performed his operation. On redirect examination, Dr. Berg-mann testified:
“Q Could [the ovarian mass] have been felt seven months before [your operation]?
A Could it have been?
Q Yes, sir.
A Yes, I feel it could have been felt.
Q Is that your opinion based upon reasonable medical certainty?
*698 A I feel it could have been felt.
Q Is that your opinion based upon reasonable medical certainty?
A Yes.”
. Proof that the ovarian mass was palpable at the time defendant operated and that the mass was not removed would give rise to, at least, two equally probable inferred facts: (1) defendant “did not check” the surgical area in question, or, (2) defendant “checked” the area using a faulty technique. Facts assumed in a hypothetical question must be supported by substantial evidence. E.g., Heppner v. Atchison, Topeka and Santa Fe Railway Co., 297 S.W.2d 497, 506 (Mo.1956); Pettis v. St. Louis Public Service Co., 240 S.W.2d 909, 912 (Mo.1951); See also Conlon v. Roeder, 418 S.W.2d 152,157 (Mo.1967); But see, Fullerton v. Fordyce, 144 Mo. 519, 44 S.W. 1053, 1056 (1897); Russ v. Wabash Western Ry. Co., 112 Mo. 45, 20 S.W. 472, 473 (1892) (any fact which the evidence tends to prove may be assumed in a hypothetical question). Proof of facts which give rise to two equally probable inferred facts, as in the instant case, is not the substantial evidence needed to support either one of the inferred facts.
. This case was reversed and remanded. An appeal from the new trial is recorded at 336 Mo. 497, 79 S.W.2d 109 (Mo.1934).