Arlene Wickham v. Jean Hummel

• Court: Missouri Court of Appeals
• Decided: December 27, 2022
• Docket: WD85170
• Status: Published

Opinion

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT ARLENE WICKHAM, ) ) Respondent, ) ) v. ) WD85170 ) JEAN HUMMEL, ) Order filed: December 27, 2022 ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI THE HONORABE SHANE T. ALEXANDER, JUDGE

Division One: W. Douglas Thomson, Presiding Judge, Alok Ahuja, Judge and Edward R. Ardini, Jr., Judge

Jean Hummel (“Hummel”) appeals from a judgment entered after a jury

verdict awarding Arlene Wickham (“Wickham”) $1,085,115 in damages. The jury

found Hummel, a registered nurse, 100% at fault for injuries Wickham sustained

following a left total knee replacement surgery performed by Dr. Steven Smith.

Wickham ultimately underwent a below-the-knee amputation following her knee

replacement surgery.

Hummel brings ten points on appeal. Points I, II, III, V, and VI argue that

Wickham failed to make a submissible case on the element of causation in various ways. Hummel’s fourth and seventh points argue that Wickham also did not present

a submissible case because she failed to present evidence that Hummel breached the

standard of care. Points VIII, IX, and X all address damages. Finding no error, we

affirm.

Factual and Procedural History1

Wickham underwent left knee replacement surgery at North Kansas City

Hospital on February 17, 2016. Dr. Smith performed the surgery, which concluded

at 12:39 p.m. During surgery, Dr. Smith inadvertently cut Wickham’s anterior tibial

artery, which runs behind the knee joint. The bleeding caused by this cut went

undetected and untreated for approximately two days. By the time it was discovered,

Wickham required emergency surgery to repair the cut in an attempt to save the

function of her leg. After ten months of extensive rehabilitation efforts, which were

unable to restore full function to her leg, Wickham underwent a left below-the-knee

amputation in December 2016.

After Wickham’s February 17th surgery, Dr. Smith wrote various postoperative

orders for Wickham’s nurses. Notably in this case, Dr. Smith wrote an order that

nurses were to perform neurovascular assessments every four hours for 24-hours

following surgery.

At issue in this case is the care Nurse Jean Hummel provided Wickham on the

day following surgery, February 18, 2016. Hummel was a nurse at North Kansas

1 In an appeal from a denial of motions for directed verdict or JNOV, we view the evidence and

all reasonable inferences in the light most favorable to the plaintiff. See Coon v. Dryden, 46 S.W.3d 81, 88-89 (Mo. App. W.D. 2001).

2 City Hospital who worked the day shift, 7:00 a.m. to 7:00 p.m., on February 18, 2016.

As Wickham’s bedside nurse, Hummel was the person primarily responsible for

performing neurovascular assessments on Wickham.

Neurovascular assessments are designed to detect postoperative bleeding

complications by assessing nerve and circulation functions around the operative site;

in this case, Wickham’s left knee. Neurovascular assessments evaluate five factors:

(1) pain, because unexplained increases in pain sensations can indicate nerve

compression from bleeding; (2) paralysis or other motor function compromise; (3)

pulses to determine whether blood flow has been compromised; (4) pallor, because a

pale skin appearance can indicate compromised blood flow; and (5) changes in skin

temperature, which can also indicate compromised blood flow. Detecting bleeding

complications after surgery is time sensitive; medical staff have a limited opportunity

to intervene to prevent lasting damage to the patient.

Dr. Smith examined Wickham between 7:30 a.m. and 7:51 a.m. during his

rounds on February 18 and found Wickham was “neurovascularly intact.” Hummel

performed her initial assessment on Wickham at 8:00 a.m. During her neurovascular

assessment, Hummel assessed Wickham’s dorsiflexion and plantar flexion, which

test certain nerve function, as “poor.” Hummel did not report Wickham’s status to

Dr. Smith.

Between 8:30 a.m. and 9:10 a.m., Wickham participated in physical therapy.

The physical therapist noted Wickham was experiencing calf soreness, which is a

3 possible sign of a blood clot. The physical therapist reported Wickham’s calf pain to

Hummel. Calf pain is not expected after a total knee replacement.

In addition to the abnormal neurovascular assessments and calf pain,

Wickham’s reported pain increased throughout the morning. Wickham rated her

pain as a “2” on a 10-point scale at 6:10 a.m., “9” at 8:28 a.m. and 11:38 a.m., and “10”

at 12:18 p.m. Hummel did not notify Dr. Smith of Wickham’s increased pain.

As a result of Wickham’s reported calf pain, Hummel claims that she spoke

with a receptionist from Dr. Smith’s office for approval to get an ultrasound but did

not speak with Dr. Smith directly. Dr. Smith denies having knowledge of any call

from Hummel, and Hummel did not document the call in Wickham’s chart. Despite

Dr. Smith’s lack of knowledge of the call, one of Dr. Smith’s physician assistants,

Lyndsey Ballou, accessed Wickham’s chart, and shortly thereafter, an order for an

ultrasound listing Dr. Smith as the ordering physician was entered for Wickham.

Pursuant to Dr. Smith’s orders, Wickham should have received a

neurovascular assessment around noon on February 18. Hummel did not document

performing any neurovascular assessments in the morning after 8:00 a.m. throughout

the afternoon. According to Hummel, she performed a neurovascular assessment on

Wickham after she returned from physical therapy but did not document it.

Hummel was concerned about Wickham’s condition throughout the day, and

at 5:55 p.m., Hummel contacted the “STAT team” because Wickham had decreased

urine output and had not voided during the entirety of Hummel’s shift. A STAT team

nurse, Nurse Fuller, responded to Hummel’s page around 6:00 p.m. Fuller performed

4 a neurovascular assessment on Hummel and found that Wickham was experiencing

increased pain and decreased sensation in her left foot. A patient’s pulse should be

felt, or located, at two points in the foot. Fuller could not feel or locate one pulse in

Wickham’s left foot and could detect the other left foot pulse only with a doppler

ultrasound. Fuller contacted the working hospitalist, who told Fuller to make Dr.

Smith aware of Wickham’s condition. Hummel called Dr. Smith around 6:30 p.m.,

the first recorded time she contacted him all day. According to Dr. Smith, Hummel

did not give him sufficient information about Wickham to alert him to a

neurovascular problem with Wickham during this phone call. Hummel’s shift ended

at 7:00 p.m., and she left the hospital.

Other nurses contacted Dr. Smith about Wickham’s condition during the night

of February 18 and early morning on February 19. At around 11:47 p.m., the night

shift nurse, Nurse Audus, contacted Dr. Smith’s answering service to report Wickham

had decreased pulses and sensation in her left foot. Dr. Smith spoke with Nurse

Audus at 12:18 a.m. and told her to continue to monitor Wickham and to notify him

with any change but did not make any new orders regarding Wickham’s care.

Notably, Hummel’s charting on February 18 was so deficient that when she came in

for her shift on February 19, her supervisor told her to get her charts up-to-date,

meaning the February 18th overnight nurse did not have up-to-date charts from which

to report to Dr. Smith.

At 6:56 a.m., another nurse contacted Dr. Smith and requested that he

evaluate Wickham as soon as possible. Dr. Smith asked his physician’s assistant,

5 Jennifer Batchelder, to evaluate Wickham. Batchelder examined Wickham and

ordered lab testing on Wickham’s left leg. Batchelder and Dr. Smith asked for a

vascular surgeon to evaluate Wickham. The vascular surgeon performed emergency

surgery on Wickham’s left leg, which revealed that Dr. Smith had cut an artery

during her total knee replacement and that Wickham had subsequently developed a

hematoma in the space behind her knee.

Procedural History

Wickham filed her initial petition for damages in July 2016, prior to her

amputation.2 A jury trial began on August 9, 2021 against Hummel, Dr. Smith, and

Dr. Smith’s employer, Northland Bone & Joint, Inc. Wickham presented the

testimony of Hummel and various experts, including a nurse expert, an orthopedic

surgeon, a vascular surgeon, and a life care planner. Wickham also testified, along

with her son, who is now her primary caregiver, and her sister.

At the close of Wickham’s evidence, both Dr. Smith and Hummel filed motions

for directed verdict, which the trial court denied. Dr. Smith and Northland Bone &

Joint then presented their case, which included Dr. Smith’s testimony, the reading of

excerpts from Jennifer Batchelder’s deposition, and the testimony of Dr. Smith’s

medical expert.

Hummel also presented evidence, which included the testimony of many

medical professionals who were involved in Wickham’s post-operative care. Hummel

2 Ultimately, the trial commenced upon Wickham’s seventh amended petition.

6 testified on her own behalf. Hummel also called several medical experts, including a

vascular surgeon, a registered nurse, and a clinical nurse specialist.

Once Hummel rested her case-in-chief, both she and Dr. Smith made motions

for directed verdicts at the close of all evidence, which the trial court denied.

Despite initially alleging eleven separate acts of negligence against Dr. Smith,

Wickham submitted only one allegation of post-operative negligence to the jury.3

Likewise, Wickham asserted nineteen allegations of negligence against Hummel, but

submitted only two to the jury. The jury was instructed:

In your verdict you must assess a percentage of fault to Defendant, Jean Hummel, R.N., if you believe: First, between the hours of 8:00 a.m. and approximately noon on February 18, 2016, the neurovascular of Plaintiff’s left leg deteriorated, and Second, Defendant, Jean Hummel, R.N., either failed to notify Steven Smith, M.D. of said deterioration, or failed to perform proper neurovascular assessments of Plaintiff’s left leg within that time frame, and Third, Defendant, Jean Hummel, R.N., in any one or more of the respects submitted in paragraph Second, was thereby negligent, and Fourth, such negligence directly caused or directly contributed to cause damage to Plaintiff.

The jury found Hummel 100% liable for Wickham’s injuries, assessing no fault

against Dr. Smith. The jury assessed Wickham’s damages as follows:

Past economic damages: $150,000

3 Instruction 9 instructed the jury in Wickham’s claim against Dr. Smith:

In your verdict you must assess a percentage of fault to Defendant, Steven Smith, M.D. if you believe: First, Defendant Steven Smith, M.D. failed to properly perform a neurovascular assessment of Plaintiff’s left leg at approximately 7:30 a.m. on February 18, 2016, and Second, Defendant Steven Smith, M.D. was thereby negligent, and Third, such negligence directly caused or directed contributed to cause damage to Plaintiff.

7 Future medical damages: $492,541

Past non-economic damages: $500,000

Future non-economic damages: $800,000

In total, the jury awarded Wickham $1,942,541 in damages. The trial court reduced

the jury’s award for past and future non-economic damages pursuant to Section

538.210.2.4 After the reduction, the total award was $1,085,115.

Pursuant to Section 538.220.2, Hummel requested future damages be paid in

periodic or installment payments. The trial court granted the request in part, but

required 73% of the future medical damages be paid in lump sum at the time of the

judgment to offset a portion of Wickham’s attorney’s fees and costs.

Hummel filed a motion for judgment notwithstanding the verdict (“JNOV”),

which the trial court denied. This appeal follows.

Standard of Review

We review a trial court’s denial of Hummel’s motion for directed verdict and

JNOV under the same standard. See Davolt v. Highland, 119 S.W.3d 118, 123 (Mo.

App. W.D. 2003). In reviewing both motions, we must determine whether the plaintiff

made a submissible case. Id. “To make a submissible case in a medical malpractice

action, the plaintiff must prove that the defendant failed to use the degree of skill and

learning ordinarily used under the same or similar circumstances by members of the

defendant’s profession and that [her] negligent act or acts caused the plaintiff’s

4 All statutory citations are to RSMo 2016, as updated by supplement, unless otherwise indicated.

8 injury.” Coon v. Dryden, 46 S.W.3d 81, 89 (Mo. App. W.D. 2001) (citing Washington

by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995)).

We will not remove a case from the jury’s hands “unless there is no room for

reasonable minds to differ.” Id. We “will reverse the jury’s verdict for insufficient

evidence only where there is a ‘complete absence of probative fact’ to support the

jury’s conclusion.” Id. (quoting Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458,

461 (Mo. banc 1998)).5

Analysis

Hummel brings ten points on appeal. Her points often overlap and build on

each other, so we address them together when appropriate. For ease, we also address

them out of order when necessary.

First, we address Hummel’s points arguing that Wickham failed to make a

submissible case that Hummel breached the standard of care on both Wickham’s

“failure to notify” claim (Point IV) and her “failure to properly assess” claim (Point

VII).

Next, we discuss Hummel’s arguments alleging that Wickham failed to make

a submissible case as to causation. Hummel argues that Wickham could not make a

submissible case against her because of Wickham’s judicial admissions (Point I).

Hummel also argues Wickham offered no evidence that earlier notification would

have resulted in a different diagnosis or treatment (Point II). Similar to her second

point, in Point V, Hummel argues that Wickham failed to make a submissible case

5 Some of Hummel’s points have separate applicable standards of review, and they will be

referenced when applicable.

9 on causation because she did not submit evidence that an earlier notification would

have resulted in a different diagnosis or treatment. Likewise, in Point VI, Hummel

argues that Wickham offered no evidence that a “proper neurovascular assessment”

would have resulted in a different diagnosis or treatment. Because Points II, V, and

VI all address the submissibility of Wickham’s case concerning causation, we address

these points together. In the course of our discussion of these Points, we also address

Hummel’s Point III, which suggests that we should consider the submissibility of the

case at the close of Wickham’s evidence, even though Hummel thereafter chose to

present evidence in her own defense.

Hummel’s remaining points address damages. In Point VIII, Hummel argues

that Wickham failed to present any evidence of the present value of her future

medical damages as required by Section 538.215. In her ninth point, Hummel argues

that the trial court erred in failing to instruct the jury to express future medical

damages at present value. Finally, Hummel argues the trial court erred in ordering

that 73.3% of future medical expenses be paid in a lump sum for attorney’s fees and

litigation expenses because such an order violates Section 538.220.

Standard of Care (Points IV and VII)

Before addressing any of Hummel’s claims, it is necessary to discuss the scope

of the claims Wickham presented to the jury. The jury was instructed to assess a

percentage of fault against Hummel if “between the hours of 8:00 a.m. and

approximately noon on February 18, 2016, the neurovascular condition of Plaintiff’s

left leg deteriorated,” and that during that time either Hummel “failed to notify” Dr.

10 Smith “of said deterioration, or failed to perform proper neurovascular assessments

of [Wickham’s] left leg within that time frame.” (emphasis added). In other words,

the jury was asked to examine Hummel’s conduct during a four-hour period to

determine if she either failed to inform Dr. Smith that Wickham was deteriorating or

failed to perform a neurovascular assessment on Wickham. Therefore, when

examining whether Wickham made a submissible case against Hummel, we examine

only this time period and only Hummel’s actions.

In Point IV, Hummel argues that the trial court erred in denying her motion

for JNOV because Wickham failed to prove that Hummel breached the standard of

care in Wickham’s “failure to notify” claim. Similarly, in Point VII, Hummel argues

that Wickham failed to establish that Hummel breached the standard of care in

failing to properly assess Wickham.

Hummel cites very little law in support of her fourth or seventh points. In

neither point does she define the required proof for a breach of the standard of care.

In fact, both points focus on evidence that she claims conflicts with the jury’s verdict.

In her fourth point, Hummel focuses on the evidence against Dr. Smith, and whether

he was aware of the ultrasound that was ordered under his name on the morning of

February 18.6 In her seventh point, Hummel points out that there was conflicting

6 The jury heard conflicting evidence regarding how the order for the ultrasound came about.

Hummel testified that she spoke with a receptionist from Dr. Smith’s office regarding the ultrasound. An order for an ultrasound was later entered in Wickham’s chart under Dr. Smith’s name. Dr. Smith denied having knowledge of the ultrasound and denied ever authorizing an order. Based on the jury’s verdict, it appears they did not believe Hummel’s testimony regarding the ultrasound. As discussed below, we do not weigh evidence or resolve conflicted testimony, and we defer to the jury’s factfinding.

11 testimony at trial on the standard of care for completing a “proper” neurovascular

assessment.

Rather than challenge the submissibility of Wickham’s case regarding a breach

of the standard of care, Hummel is asking us to re-weigh the evidence and hold that

the jury simply came to the wrong conclusion. Such an assessment is not our place.

We do not have the authority to weigh the evidence, determine witness credibility, or

resolve conflicting testimony after a jury verdict in a case. See Ratcliff v. Sprint, Mo.,

Inc., 261 S.W.3d 534, 542 (Mo. App. W.D. 2008). We are concerned only with whether

Wickham made a submissible case on all of her claims. As such, we are focused here

on determining whether Wickham presented sufficient evidence that Hummel

breached the standard of care to submit her claims against Hummel to the jury.

“To make a submissible case on [the issue of a breach of the standard of care],

plaintiff was required to establish that [Hummel] failed to exercise that degree of

skill and learning ordinarily exercised under the same or similar circumstances by

members of [her] profession.” Delisi v. St. Lukes Episcopal-Presbyterian Hosp., Inc.,

701 S.W.2d 170, 173 (Mo. App. E.D. 1985); see also Mahoney v. Doerhoff Surgical

Servs., Inc., 807 S.W.2d 503, 507 (Mo. banc 1991) (“[T]he allegations of negligence

against the several health care provider defendants are of the kind that require the

aid of expert medical testimony to prove the acceptable standard of professional

care.”). Generally, plaintiffs are required to provide expert testimony regarding the

appropriate standard of care. Delisi, 701 S.W.2d at 173. Even without expert

testimony, Missouri courts have held that a fact-finder may find that a nurse has

12 breached the standard of care where the nurse fails to follow a doctor’s orders. See,

e.g., Redel v. Capital Regional Med. Ctr., 165 S.W.3d 168, 172-73 (Mo. App. E.D. 2005)

(holding that no expert testimony is needed when doctor ordered only one of patient’s

legs receive continuous passive motion (“CPM”) therapy at a time and to monitor

patient for disorientation, and nurse used two CPM machines at once, and did so

when patient was disoriented causing permanent drop foot in patient); Daugherty v.

N. Kansas City Memoral Hosp., 570 S.W.2d 795, 797 (Mo. App. 1978) (holding that

no expert testimony is necessary when nurse failed to follow doctor’s orders to switch

an ice pack from side to side of patient’s throat every two hours, resulting in

permanent and progressive Bell’s Palsy to patient’s face).

In this case, Wickham offered the testimony of a nurse expert, who testified

that the appropriate standard of care is what a reasonably prudent and careful nurse

would do in the same or similar circumstance. Wickham’s nurse expert was critical

of the care Hummel provided in several respects, including Hummel’s lack of

documentation and communication regarding Wickham’s condition. Hummel herself

admitted that she did not document many events concerning Wickham, which

according to Wickham’s nursing expert, was a breach of the standard of care.

Hummel also admitted that she did not document performing a neurovascular exam

on Wickham at noon, which Wickham’s expert stated was also a breach of the

standard of care.

Moreover, Wickham presented ample evidence that Hummel failed to follow

both Dr. Smith’s orders regarding Wickham’s care and the hospital’s policies. The

13 jury heard evidence that Hummel failed to perform or record a neurovascular

assessment on Wickham between 8:00 a.m. and noon, despite Dr. Smith’s order that

nurses perform neurovascular assessments on Wickham every four hours for 24 hours

following surgery. Further, Wickham admitted that she was concerned about

Wickham’s condition throughout the morning of February 18, and she failed to contact

Dr. Smith, in violation of the hospital’s policy that nurses immediately inform doctors

of new or worsening symptoms.

With this evidence, Wickham presented a submissible case as to Hummel’s

breach of the standard of care in failing to notify and failing to properly assess.

Wickham was required to put on expert testimony concerning how a nurse in the

same or similar circumstance would behave and/or that a nurse failed to follow a

doctor’s orders. Wickham did both. Points IV and VII are denied.7

Causation (Points I, II, III, V, and VI)

Next, we address whether Wickham made a submissible case as to causation.

Ultimately, Hummel’s arguments fail because they attempt to make this case about

something it is not: Dr. Smith’s conduct after twelve o’clock noon on February 18.

Points II, V, and VI

Hummel’s Points II, V, and VI all argue that Wickham failed to make a

submissible case on the element of causation against Hummel. Similar to Point I, in

7 In Point VII, Hummel also discusses the use of the word “proper” in Instruction No. 7, which

instructed the jury to find against Hummel if they determined she failed to perform a “proper” neurovascular assessment. Hummel never argues that Instruction No. 7 was given to the jury in error. Instead, she argues that the testimony regarding what constituted a “proper” neurovascular assessment was conflicting. As we explained above, the jury is tasked with resolving conflicting facts, and we do not question their factfinding on appeal.

14 Point II, Hummel argues that Wickham failed to produce evidence that an earlier

notification of Wickham’s condition would have resulted in a different diagnosis or

treatment and thus failed to prove that Hummel’s conduct was the but-for cause of

Wickham’s injuries. Hummel contends that to prove her case, Wickham needed to

call Dr. Smith to testify that he would have done something differently had Hummel

contacted him between 8:00 a.m. and noon on February 18.8

Hummel admits that her fifth point is simply an expansion of her second point.

In Point V, Hummel argues that Wickham’s evidence as to causation was legally

insufficient for four reasons. Hummel’s first and third reasons are similar: both argue

that Wickham relied on “self-contradictory” evidence, in that Wickham introduced

expert testimony that Dr. Smith was negligent in failing to respond to notifications

from nurses other than Hummel while Dr. Smith testified that he may have done

something differently had Hummel informed him of Wickham’s condition. Hummel’s

second reason concerns Wickham’s supposed “judicial admissions,” which we address

below in Point I and will not address again. Hummel finally argues that Dr. Smith’s

8 In making the claims in her second point, Hummel relies on authority from other states, or

on no authority at all. For example, in her brief, Hummel states, “Importantly, causation in a ‘failure to notify’ case cannot be based on expert opinion…when the plaintiff is suing that treater for breach of standard of care…” but cites to no legal authority from Missouri or any other jurisdiction to support her contention. Hummel also cites out-of-state authority to support her fifth point. Hummel argues that out-of-state authority should be considered here because such authority is “based on similar facts and ‘sound principles and good reason.’” Penzel Constr. Co. v. Jackson R-2 Sch. Dist., 544 S.W.3d 214, 234 (Mo. App. E.D. 2017) (quoting Craft v. Philip Morris Companies, Inc., 190 S.W.3d 368, 380 (Mo. App. E.D. 2005)). We disagree that consideration of the law of other states is necessary in this case. Generally, out-of-state cases can be instructive when we are considering issues of first impression, which was the issue in Penzel and the cases cited by Penzel. See Penzel Constr. Co., 544 S.W.3d at 234 (the court was considering “an issue of first impression in Missouri, as no reported Missouri case has expressly accepted or rejected either approach.”). None of the issues Hummel presents to us are issues of first impression, and therefore we find it unnecessary and unpersuasive to consider the law of other jurisdictions. Our decision is guided by Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 862 (Mo. banc 1993), as discussed below.

15 testimony does not prove that he would have done something differently had Hummel

notified him sooner of Wickham’s medical condition.

Hummel’s sixth point makes the same argument as her fifth, except Hummel

addresses Wickham’s “failure to properly assess” claim rather than her “failure to

notify” claim. According to Hummel, both claims are “dependent on Dr. Smith being

notified of the results of such assessment and acting on such information in a manner

leading to a timely vascular surgery.” Thus, we address them together.9

To make a submissible case for medical malpractice, Wickham must establish

three elements: “(1) Proof that the act or omission failed to meet the requisite

standard of medical care; (2) Proof that the act or omission was performed

negligently; and (3) A casual connection between the act or omission and the claimed

injury sustained by [Wickham].” Delisi v. St. Luke’s Episcopal-Presbyterian Hosp.,

Inc., 701 S.W.2d 170, 173 (Mo. App. E.D. 1985).

9 In her third Point, Hummel contends that we should separately review the circuit court’s

denial of her motion for a directed verdict at the close of Wickham’s evidence, even though Hummel (and Dr. Smith) thereafter presented evidence in their own defense. Hummel’s argument is contrary to well-established Missouri caselaw, which we are bound to follow. As the Missouri Supreme Court has explained: At the close of plaintiff's evidence, Rule 72.01(a) provides defendant with the opportunity to challenge whether plaintiff has made a submissible case. If no further evidence is introduced, the case—both at trial and on appeal—is determined by the evidence on the record at that point. Should the trial court overrule the motion, defendant then has the choice of putting on evidence of his or her own. If defendant introduces evidence, the state of the record at the close of plaintiff's case is waived and the case—both at trial and on appeal—is determined in accordance with all evidence admitted: plaintiff's and defendant's. Sanders v. Ahmed, 364 S.W.3d 195, 207 (Mo. banc 2012) (emphasis added). Although Hummel argues that these general principles should not apply in the circumstances of this case, we are bound by cases like Sanders v. Ahmed, and we will accordingly assess the sufficiency of the evidence to support the jury’s verdict, based upon all of the evidence which was before the jury at the time it rendered that verdict.

16 “The usual test for a causal connection between a defendant’s negligence and

a plaintiff’s injury is whether the facts in evidence show that the injury would not

have been sustained but for the negligence.” Delisi, 701 S.W.3d at 175. “But for”

causation is the minimum causation requirement “because it merely proves that

defendant’s conduct is causally connected to the plaintiff’s injury.” Harvey v.

Washington, 95 S.W.3d 93, 96 (Mo. banc 2003) (citing Callahan v. Cardinal Glennon

Hosp., 863 S.W.2d 852, 862 (Mo. banc 1993)).

Hummel suggests that Wickham cannot simultaneously present evidence that

both Hummel and Dr. Smith are separate “but-for” causes of her injuries. But the

theories Wickham pursued against Hummel and Dr. Smith are not necessarily

inconsistent. Stated generally, Wickham presented evidence at trial that Dr. Smith

had negligently failed to respond, or had responded inadequately, to the information

he received from various nurses on the evening of November 18, and the morning of

November 19. Wickham’s claim against Hummel, by contrast, alleged that she had

been negligent for failing to assess, and advise Dr. Smith of, Wickham’s deteriorating

condition on the morning of November 18. While it was open to Hummel to argue the

matter to the jury, there was nothing inherently inconsistent in Wickham

simultaneously asserting both of these positions.

Hummel argues that Wickham failed to present evidence that Dr. Smith’s

treatment of Wickham would have changed, and Wickham’s injuries prevented, if

Hummel had presented information to Dr. Smith on the morning of November 18

concerning Wickham’s deteriorating condition. Hummel’s argument simply

17 disregards Dr. Smith’s testimony.10 Dr. Smith expressly testified that, if he had been

advised earlier of “any neurovascular assessments or any neurological problems”:

I would have acted upon them. Based upon some of the testimony that I've heard over the last couple of days, I would have gotten in my car and driven to the hospital and assessed Ms. Wickham and ordered tests and called other doctors. But I was given no indication that there was anything that I needed to assess or treat at that point in time.

Later, Dr. Smith testified at length concerning the actions he would have taken

if Hummel had provided her with the information which Hummel possessed

concerning Wickham’s condition:

Q. Okay. So, Doctor, just to summarize your testimony here today, we know that with regard to the morning hours leading up until 12:00 or even 12:18 p.m., you were never notified by Nurse Hummel about the substantial increase in pain from what you had seen with the patient, you had not been advised of the abnormal dorsiflexion and plantar flexion, you also had not been advised of the calf pain or calf soreness as described with dorsiflexion and with palpation, and you also didn't have an opportunity to find out about the ultrasound because nobody notified you about those results. Isn't that true? A. That is correct. Q. And you've testified -- the jury has heard you -- that if you'd heard about all of that information, you would have issued -- you would have come to the hospital or made sure that someone was there who could properly assess the situation and arrange for the care that Ms. Wickham needed; is that true? A. Yes, that is correct.

***

Q. And you've testified that if you'd been notified at 12:00 about these findings, you would have come to the hospital to assess the patient, correct? A. I would have gone down three floors to see the patient. Q. And that was to determine where the problem lay, correct?

10 On appeal, Hummel does not separately argue that the quoted testimony was inadmissible.

Given that no admissibility issues have been raised on appeal, this testimony "'may be relied upon for purposes of determining the submissibility of the case.'" Sanders, 364 S.W.3d at 209 (quoting Washington v. Barnes Hosp., 897 S.W.2d 611, 616 (Mo. banc 1995)).

18 A. Or if there was a problem, yes. *** Q. Right. But if you had come to see the patient, you would have wanted to gather all of the information, not just what had been documented in regard to neurovascular findings, but, potentially, you would have wanted to see that ultrasound report to see what it shows, correct? A. Yes. Q. All right. If you had all of that information, it would have helped you in determining, there is a problem here. This patient needs to go back to the OR, or I need to get the vascular surgeon involved. Would you agree? A. I -- I think if I had had all of that information and could have put it all together at that time, at a minimum, I would have ordered additional testing that would have revealed the problem. Q. All right. And would you have ordered that testing on an expedited basis? Correct? A. Oh, yes. Thus, the premise of Hummel’s Points II, V, and VI – that Wickham presented

no evidence that Wickham’s course of treatment would have been altered if she had

better advised Dr. Smith – is simply inaccurate.

More generally, we note that in Callahan, the Missouri Supreme Court

addressed the causation standard on a claim that a nurse failed to inform a treating

physician of a patient’s condition. 863 S.W.2d 852 (Mo. banc 1993). The Court stated,

“If [the nurse] failed to inform [the doctor] of [the patient’s] presence and condition at

the hospital, and the doctor had no other source of this information, then a jury could

have concluded that ‘but for’ the nurse’s failure to inform the doctor, [the patient]

would not have [been injured].” Id. at 862. On the other hand, the Court pointed out

that if the treating physician had another way to discover the information the nurse

had, then the nurse’s “failure to tell the doctor something that he already knew would

not be causal,” which was simply not the case here. Id.

19 As we read Callahan, a nurse’s failure to inform a doctor of a patient’s

condition can be the but-for cause of the patient’s injury when the doctor had no other

way of obtaining that same information, and the information would otherwise lead a

reasonable physician to act, even without evidence as to how a particular physician

would have responded to the information the nurse failed to report. This is consistent

with products liability decisions involving failure-to-warn claims, which hold that, in

order to establish proximate causation,

“plaintiffs must show that a warning would have altered the behavior of the individuals involved in the accident.” To satisfy this burden, “Missouri, like several other states, aids plaintiffs in proving this second part of causation by presuming that a warning will be heeded.” But the “presumption that plaintiffs will heed a warning assumes that a reasonable person will act appropriately if given adequate information. Thus, a preliminary inquiry before applying the presumption is whether adequate information is available absent a warning.” Moreover, “[a]s causation is a required element of the plaintiffs' case, the burden is on plaintiffs to show that lack of [prior] knowledge.”

Moore v. Ford Motor Co., 332 S.W.3d 749, 762 (Mo. banc 2011) (citations omitted)

(emphasis in the original). “‘[T]he term “presumption” is used to mean “makes a

prima facie case,” i.e., creates a submissible case that the warning would have been

heeded.’” Id. at 762 (quoting Tune v. Synergy Gas Corp., 883 S.W.2d 10, 14 (Mo. banc

1994)). Once a plaintiff has established a presumption that a failure to warn

proximately caused the plaintiff’s injuries, the defendant can present evidence that a

warning would not have been heeded, to seek to rebut the presumption. Id. at 763.

This standard guides the evidence Wickham was required to present to the

jury to make a submissible case against Hummel. To make a submissible case on

causation, Wickham needed to present evidence that, on the morning of November

20 18, Hummel had information that she did not share with Dr. Smith which Dr. Smith

could not otherwise discover within the time window provided in the verdict director,

and which information would have led a reasonable physician in Dr. Smith’s

circumstances to act to address the situation.

Much of Hummel’s argument focuses on Dr. Smith’s behavior on the evening

of February 18 and the morning of February 19, when he was provided information

by other medical staff, and after the critical time window provided in the verdict

director. Not only was this a time when Hummel was not working at the hospital, it

was well after that crucial time when Hummel’s assessment of Wickham and

notification of Dr. Smith should have occurred. Accordingly, while Hummel was

entitled to argue to the jury that Dr. Smith’s later actions demonstrated that he would

not have made different treatment decisions if provided with similar information on

the morning of November 18, that evidence was not relevant to determining whether

Wickham made a submissible case against Hummel. Wickham’s case against

Hummel was not contingent upon evidence as to the specific manner in which Dr.

Smith would have responded to Hummel’s information.

Wickham needed to present evidence to prove that if Hummel had contacted

Dr. Smith between 8:00 a.m. and noon, Wickham’s outcome would have been

different. Hummel essentially argues that Wickham failed to present such evidence.

This is simply not the case.

First, Hummel knew information about Wickham’s condition that she neither

shared with Dr. Smith nor added to Wickham’s chart. The jury heard evidence that

21 Hummel’s 8:00 a.m. examination of Wickham revealed troubling neurovascular

findings, and that Hummel did not immediately contact Dr. Smith. Hummel herself

testified that she was concerned about Wickham’s condition during the morning

hours, because Wickham was experiencing increased pain and decreased function in

her leg.

Despite her concern and the concerns expressed by the physical therapist,

there are no records of Hummel contacting Dr. Smith between 8:00 a.m. and noon on

February 18. Further, Hummel either did not perform or did not chart any

examination of Wickham at noon, despite standing orders to assess Wickham every

four hours. Hummel did not contact additional medical personnel to examine

Wickham, including Dr. Smith, until after 5:00 p.m. on February 18 when the STAT

team insisted she do so.

Taken together, Hummel’s failure to contact Dr. Smith and lack of

documentation indicates that Hummel knew information about Wickham’s

deteriorating condition that Dr. Smith did not know and had no other way to learn

except from Hummel. Further, Hummel’s lack of documentation rendered Dr. Smith

unable to fully access Wickham’s condition even if he had been advised of Wickham’s

downturn.

Wickham also presented evidence that the information Hummel could have

conveyed would have led a reasonable physician in Dr. Smith’s position to take

remedial action. Dr. Smith himself testified that information of a “dramatic elevation

in pain,” newly developing calf pain, and changes in dorsiflexion and plantar flexion

22 “together are very concerning things that need quick action.” Wickham’s experts

similarly testified that this combination of symptoms presented an emergency

requiring immediate intervention.

Additionally, Wickham presented evidence that early intervention was

important in maintaining the function of her left leg. Wickham presented expert

testimony that a vascular surgeon would have been able to restore full function to her

left leg if a surgeon had been contacted at or before 3:00 p.m. on February 18, the day

Hummel was monitoring Wickham and failed to either properly assess Wickham or

properly notify Dr. Smith. That same expert testified that any delay in Wickham

receiving the surgery she needed led to ongoing damage to her leg’s function. The

expert ultimately testified that the sooner Wickham received the surgery, the less

nerve dysfunction she would have experienced. This testimony combined with the

evidence that Hummel did not contact Dr. Smith or perform neurovascular

assessments on Wickham as ordered was sufficient to allow the jury to find that but-

for Hummel’s conduct, Wickham’s outcome would have been different.

In short, the issue of Hummel’s negligence does not hinge on whether Dr.

Smith was also negligent, nor does her negligence depend on evidence permitting a

prediction concerning Dr. Smith’s potential behavior. The evidence needed to make a

submissible case against Hummel stands on its own. See Callahan, 863 S.W.3d at

862. Wickham presented evidence that Hummel had information that Dr. Smith

needed to know and had no other way of accessing. Such evidence, combined with

the expert testimony that this information would have indicated to a reasonable

23 physician that Wickham was experiencing an emergency and that early intervention

was important in this case, is sufficient to submit to the jury that, but for Hummel’s

failure to contact Dr. Smith or failure to properly assess Wickham, Wickham’s

outcome would have been different. Wickham made a submissible case against

Hummel on the element of causation.11

Points II, V, and VI are denied.

Point I

Hummel also argues that Wickham failed to make a submissible case in that

Wickham’s proof of causation was foreclosed by alleged judicial admissions made in

her petition.

“A judicial admission is an act done in the course of judicial proceedings that

concedes for the purpose of litigation that a certain proposition is true.” Moore

Automotive Group, Inc. v. Goffstein, 301 S.W.3d 49, 54 (Mo. banc 2009). Allegations

in a petition can constitute judicial admissions when they are admitted by the

opposing party. Holdredge v. Mo. Dental Bd., 261 S.W.3d 690, 693 (Mo. App. W.D.

2008). “A judicial admission must be clear and unqualified.” Goudeaux v. Bd. of Police

Com’rs of Kansas City, 409 S.W.3d 508, 519 (Mo. App. W.D. 2013) (quoting Chilton v.

Gorden, 952 S.W.2d 773, 777 (Mo. App. S.D. 1997)).

11 Hummel also argues that Wickham failed to prove a case against Hummel because Wickham

presented “inconsistent factual theories.” To support this contention, Hummel relies on allegations Wickham made in her Seventh Amended Petition that she did not present to the jury. Whether acts of negligence that the jury did not consider conflict with the acts of negligence they did consider is irrelevant to the sufficiency of Wickham’s evidence against Hummel. We do not consider Wickham’s claims that she did not submit to the jury in this appeal.

24 Hummel argues that Wickham made two allegations in her Seventh Amended

Petition that constitute judicial admissions:

15. On February 18, 2016, Defendant Dr. Smith received multiple notifications of Plaintiff Wickham’s deteriorating condition following her total knee replacement surgery. 16. Defendant Dr. Smith did not come to examine Plaintiff Wickham despite the notifications received from the various nurses at North Kansas City Hospital.

Initially, we note that Hummel’s response to Paragraph 15 does not admit the

allegations of such paragraph at all, and therefore it cannot be deemed an

admission.12 In answering Paragraph 15, Hummel stated, “Defendant admits that

Dr. Smith was timely notified of [Wickham’s] medical condition. Otherwise,

Defendant is without knowledge or information sufficient to form a belief as to the

truth, meaning, or intent of the remaining allegations contained in Paragraph 15 of

the Petition.” Hummel’s statement that “Defendant admits that Dr. Smith was

timely notified of [Wickham’s] medical condition[,]” is not responsive to Paragraph

15’s allegation, but rather rephrases Wickham’s allegation altogether. Wickham did

not allege timely notification; she alleged multiple notifications. The remainder of

Hummel’s response to Paragraph 15, that she had insufficient information or

knowledge to form a belief as to the truth of the allegation, is not an admission of the

Paragraph 15 allegations either, but merely states she cannot speak to the

allegations’ truth. Because Hummel did not admit the allegations of Paragraph 15,

they could not constitute judicial admissions. See Holdredge, 261 S.W.3d at 693.

12 We further note that Dr. Smith denied both Paragraph 15 and 16.

25 Regardless, neither Paragraph 15 or 16 of the petition are relevant to the issue

before the jury and cannot be deemed admissions benefitting Hummel. The issue

before the jury was whether Hummel failed to properly assess Wickham, or failed to

notify Dr. Smith of Wickham’s deteriorating condition, between 8:00 a.m. and around

noon. Even if Paragraph 15 was deemed an admission, which we do not find, the fact

that Dr. Smith received multiple notifications of Plaintiff Wickham’s deteriorating

condition is not dispositive upon whether Hummel (or anyone else) notified him

during the hours of 8:00 a.m. and around noon. Paragraph 16, admitted in full by

Hummel, merely alleges that Dr. Smith did not examine Wickham despite

notifications from “various nurses.” As with Paragraph 15, this does not address

whether Hummel notified him during the hours of 8:00 a.m. and around noon.

Neither Paragraph 15 or 16 is relevant to the dispositive issue at hand. Point I is

denied.13

Damages (Points VIII, IX, and X)

Finally, we address Hummel’s arguments regarding the jury’s damages

award.

13 Hummel also argues that Wickham made judicial admissions during her opening statement.

Specifically, Hummel argues that Wickham’s statements that “When Nurse Hummel belatedly alerted Dr. Smith to the sound of the smoke detector, he didn’t take it very seriously…. When the night nurse alerted Dr. Smith to the sound of the smoke detector in the evening…he still didn’t take it seriously. Even when the orthopedic nursing supervisor alerted Dr. Smith to the sound of the smoke detector, he didn’t take it seriously….” These “judicial admissions” fail for the same reason as we explain above. They are not sufficiently clear or unqualified to establish as a matter of law how Dr. Smith would have reacted if Hummel had notified him of Wickham’s deteriorating condition on the morning of November 18. In fact, Wickham’s opening statement acknowledges that any notification Hummel made to Dr. Smith was “belated.”

26 Point VIII

In Point VIII, Hummel argues that the trial court erred in denying her motion

for directed verdict because Section 538.215 requires future medical expenses be

expressed in present value, and Wickham did not present any evidence of the present

value of her future medical expenses.

Section 538.215.1 requires the trier of fact to itemize any damages found

against a health care provider into several categories: (1) past economic damages; (2)

past noneconomic damages; (3) future medical damages; (4) future economic damages

(excluding future medical damages); and (5) future noneconomic damages. (emphasis

added). Section 538.215.2 states that all future damages “shall be expressed by the

trier of fact at present value.”

The Missouri Supreme Court has squarely rejected Hummel’s argument that

Wickham was required to present evidence of the present value of her future medical

expenses. See Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 762 (Mo. banc 2010)

(stating that “[i]t is correct that § 538.215 states that the trier of fact is required to

express future damages at present value, but there is no authority to support [the]

argument that the [plaintiffs] are obligated to present evidence as to present value.”).

In Klotz, the Missouri Supreme Court noted that plaintiffs were not required

to present evidence reducing a future award to present value, and also pointed out

that defendants are allowed to argue that future expenses be reduced to present

value. Id. at 762-63; see also Anglim v. Mo. Pacific R.R. Co., 832 S.W.2d 298, 308-09

(Mo. banc 1992) (stating that a jury was capable of making a present value reduction

27 to a damages award without the aid of expert testimony as it is a matter of the

“plainest fact” that a “dollar today is not the same thing as a dollar payable some

years from now….”). When a defendant argues that a plaintiff did not offer any

evidence of the present value of their future medical expenses but did not also provide

the jury with that information, the defendant seeks “relief from the consequences of

their own actions.” Klotz, 311 S.W.3d at 763 (quoting Neeselrode v. Executive

Beechcraft, Inc., 707 S.W.2d 371, 388 (Mo. banc 1986)).

Here, Hummel did not argue to the jury that Wickham’s future medical

expenses should be reduced to present value. Hummel also does not argue that the

trial court prevented her from presenting her own evidence reducing any claim of

future damages to present value. She cannot now argue for relief from her own

inaction. Section 538.215 does not require a plaintiff to present evidence of the

present value of future damages, nor does it prohibit a defendant from offering that

same evidence. The trial court did not err in denying Hummel’s motion for directed

verdict. Point VIII is denied.

Point IX

Next, in Point IX, Hummel argues that it was an error to give Instruction No.

12, identical to Missouri Approved Instruction (“MAI”) 21.05, because it failed to

instruct the jury to express future medical damages at present value as required by

Section 538.215.

28 Standard of Review

“Whether a jury was properly instructed is a question of law this Court reviews

de novo.” Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010). We review the record

in the light most favorable to the submission of the instruction. Id. “‘A faulty

instruction is grounds for reversal if the defendant has been prejudiced.’” Children’s

Wish Foundation Intern., Inc. v. Mayer Hoffman McCann, P.C., 331 S.W.3d 648, 650

(Mo. banc 2011) (quoting State v. Carson, 941 S.W.2d 518, 523 (Mo. banc 1997)).

“Prejudicial error ‘is an error that materially affected the merits and outcome of the

case.’” Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 385 (Mo. banc 2014)

(quoting D.R. Sherry Const., Ltd. v. Am. Family Mut. Ins. Co., 316 S.W.3d 899, 904

(Mo. banc 2010)).

Instruction No. 12 stated in relevant part, “The phrase ‘future medical

damages’ means those damages arising in the future from pecuniary harm such as

medical expenses for necessary drugs, therapy, and for medical, surgical, nursing, X-

ray, dental, custodial, and other health and rehabilitative services.” This instruction

is identical to MAI 21.05.

Hummel offered an alternative instruction not found in MAI, which added the

following language to MAI 21.05: “Any future damages shall be expressed at present

value.” Hummel also requested that this sentence be added to the “Note” section of

the verdict director.

29 “The law is well-settled that where an MAI instruction applies to the case, the

use of such instruction is mandatory.” Syn, Inc. v. Beebe, 200 S.W.3d 122, 128 (Mo.

App. W.D. 2006) (citing Clark v. Mo. & N. Ark. R.R., 157 S.W.3d 665, 671 (Mo. App.

W.D. 2004)); see also Rule 70.02(b)14 (“Whenever Missouri Approved Instructions

contains an instruction applicable in a particular case that the appropriate party

requests or the court decides to submit, such instruction shall be given to the

exclusion of any other instruction on the same subject.”). We have previously noted

that the MAI itself warns:

You may have the ability to improve an instruction in MAI but you do not have the authority to do it. Do not do it. The use of a provided MAI is mandatory. If you think the change of a word or phrase will make it a better instruction, do not do it. You will be falling into error if you do.

MAI, “How To Use This Book” (7th ed.); see also Kelly v. City of Lee’s Summit, 623

S.W.3d 758, 764 (Mo. App. W.D. 2021). “If, however, a particular MAI does not state

the substantive law accurately, it should not be given.” Templemire v. W & M

Welding, Inc., 433 S.W.3d 371, 376 (Mo. banc 2014).

First, we note it is not an error for the trial court to offer an MAI instruction

that is directly applicable. MAI 21.05 defines each category of damages in an action

against a medical provider like Hummel. The Missouri Supreme Court is clear that

the use of the MAI is mandatory and that it is an error to edit those instructions, even

if a party believes the edit is an improvement.

14 All rule references are to the Missouri Supreme Court Rules (2022), unless otherwise indicated.

30 Further, Hummel cannot prove she was prejudiced by Instruction No. 12.

Hummel argues that the jury could not know to reduce future medical damages to

present value when no evidence was presented and they were not instructed to do so,

yet she failed to provide the jury with such evidence. As we explain above, Hummel

essentially argues that she was prejudiced by her own inaction. Hummel could have

elicited evidence regarding the present value of Wickham’s future medical damages

and could have made argument to that effect during closing, but she did neither.

Hummel cannot now argue that the jury would have returned a different decision if

Hummel’s “improved” version of MAI 21.05 had been read to the jury because

Hummel offered no evidence or argument to support what she believes would be the

present value of the future medical damages. Nor can Hummel prove the outcome

would have been different if her proposed instruction would have been used and,

consequently, cannot prove she was prejudiced by Instruction No. 12. Point IX is

denied.

Point X

Hummel argues that the trial court misinterpreted Section 538.220 by

reducing the periodic payments of future medical expenses by 73% to advance

Wickham’s attorney’s fees and expenses.

“Entry of, or refusal to enter, a periodic payment schedule is reviewed for abuse

of discretion.” Williams v. Mercy Clinic Springfield Communities, 568 S.W.3d 396,

408 (Mo. banc 2019). “‘A trial court will be found to have abused its discretion when

31 a ruling is clearly against the logic of the circumstances then before the court and is

so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of

careful consideration.’” Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 760 (Mo.

banc 2010) (quoting Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 129-30 (Mo.

banc 2007)).

Section 538.220.2 states in part, “At the request of any party to such action

made prior to the entry of judgment, the court shall include in the judgment a

requirement that future damages be paid in whole or in part in periodic or installment

payments if the total award of damages in the action exceeds one hundred thousand

dollars.” (emphasis added).

Likewise, Section 538.220.4 addresses attorney’s fees and states,

If a plaintiff and his attorney have agreed that attorney’s fees shall be paid from the award, as part of a contingent fee arrangement, it shall be presumed that the fee will be paid at the time the judgment becomes final. If the attorney elects to receive part or all of such fees in periodic or installment payments from future damages, the method of payment and all incidents thereto shall be a matter between such attorney and the plaintiff and not subject to the terms of the payment of future damages, whether agreed to by the parties or determined by the court.

(emphasis added).

The Missouri Supreme Court has interpreted Section 538.220 “to permit the

trial court to consider the needs of the plaintiff and the facts of the particular case in

deciding what portion of future medical damages will be paid in a lump sum and what

portion will be paid out over a periodic payment schedule that accords with the

parameters set out in the statute.” Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633,

32 647 (Mo. banc 2012). Section 538.220.2 “does not remove from the court its authority

to determine what part of the future medical damages shall be subject to the payment

schedule.” Id. The Missouri Supreme Court recently “reaffirm[ed] the holding in

Watts to the extent the circuit court, under section 538.220.2, has the discretion to

determine whether to award future medical damages wholly in periodic payments or

in part in a lump sum.” Williams, 568 S.W.3d at 409 (holding that the circuit court

did not err in assigning $10 million of a $21 million future damages award to periodic

payments, with the remainder to be paid in a lump sum).

In this case, the trial court set forth the periodic payment of future damages

as follows:

The total amount awarded by the jury for future medical expenses equaled $492,541. After deduction of the proportionate share of attorney fees and litigation expenses that are attributable to the award of future medical expenses, the Court finds that $131,636.16 remains in future medical damages which sum should be paid in periodic or installment payments. The Court finds that the payments should be made in quarterly installments of $4,113.63 over a period of eight years beginning March 1, 2022…. The Court exercises its discretion to award the proportionate share of the total attorney’s fees and litigation expenses attributable to future medical payments to be paid at the time of judgment.

Hummel argues that the trial court erred in ordering only a portion of the

future medical damages to be paid in periodic installments after deducting attorney’s

fees and expenses because the trial court lacked the authority to do so. Hummel

argues that Section 538.220.2 does not allow for fees or expenses to be “advanced”

from future medical damages. But the express language of Section 538.220.2 refutes

Hummel’s argument. By statute, the trial court is vested with the authority to order

future medical payments to be paid in periodic installments “in whole or in part.”

33 Nothing in the statutory language disallows the trial court from ordering a portion of

the attorney’s fees and expenses be paid from the jury’s future medical damages

award. Hummel asks us to take the statute’s silence as evidence that the trial court

abused its discretion. However, case law is clear that Section 538.220.2 gives broad

discretion to the trial court to determine the needs of the plaintiff and the facts of the

case in determining how to allocate payment of future medical damages. Here, the

trial court appropriately exercised its discretion here in deducting a proportionate

share of the attorneys’ fees and costs from the future medical payments while

deducting the remainder of the fees and costs from the remaining damages. Here, it

cannot be said the trial court deducted attorney’s fees and costs without justification

or explanation.

Notably, Section 538.220.4 states that attorney’s fees are presumed paid at the

time the judgment becomes final. That subsection also makes clear that the trial

court does not have the authority to order attorney’s fees be paid in installments, but

rather such an arrangement is only between the plaintiff and her attorney. In other

words, the trial court may have abused its discretion if it had ordered the total future

damages award be paid in installments, with a portion of installments going toward

attorney’s fees and expenses.

At best, Hummel argues that Section 538.220.2 does not require attorney’s fees

and expenses to be deducted from future medical damages. However, Section 538.220

expressly allows a court to exercise its discretion in ordering only part of the future

medical damages be paid in periodic installments while ordering the remaining

34 portion be paid immediately. The trial court did not abuse its discretion in ordering

only part of the future medical damages be paid in periodic installments. Point X is

Conclusion

The trial court’s amended judgment is affirmed.15

__________________________________________ W. DOUGLAS THOMSON, JUDGE All concur.

15 On appeal, Wickham requests damages pursuant to Rule 84.19, which permits us to award

damages to the respondent if we determine the appeal is frivolous. “An appeal is frivolous if it presents no justiciable question and is so devoid of merit that there is little prospect the appeal can succeed.” St. Charles Cty. v. Wegman, 90 S.W.3d 142, 145 (Mo. App. E.D. 2002). We exercise awarding damages for a frivolous appeal with caution, because it is a drastic remedy. Id. We deny Wickham’s request for damages. Even though Hummel’s appeal was ultimately unsuccessful, we find that it was not frivolous.