Love v. Park Lane Medical Center

737 S.W.2d 720, 1987 Mo. LEXIS 337
CourtSupreme Court of Missouri
DecidedOctober 13, 1987
Docket69203
StatusPublished
Cited by22 cases

This text of 737 S.W.2d 720 (Love v. Park Lane Medical Center) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Love v. Park Lane Medical Center, 737 S.W.2d 720, 1987 Mo. LEXIS 337 (Mo. 1987).

Opinions

WELLIVER, Judge.

Respondents1 filed this medical malpractice action against appellant Park Lane Medical Center for a negligently administered injection given to respondent Linda Basse by a nurse employee of the appellant. Appellant raised by answer respon[721]*721dent’s comparative fault in failing to seek appropriate and timely treatment following her discharge from the hospital. On November 21, 1985, trial resulted in a jury verdict for respondent for $69,500.00 with a percentage of fault assessed against respondent of 49%. The court entered judgment for respondent thereon for damages of $35,445.00 after computing the appropriate dollar reduction for respondent’s jury assessed fault. On December 10, 1985 respondent filed a motion to amend the judgment on the ground that there was insufficient evidence to support submission of respondent’s fault and for the further reason that failure to obtain medical treatment is not contributory negligence as a matter of law under the law as it existed prior to Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). The trial court on December 20, 1985, amended the judgment for good cause stating “Plaintiff’s Motion to Amend Judgment being shown_” Rule 75.01, and entered judgment for the full amount of the jury assessed damages of $69,500.00. Upon denial of appellant’s motion for judgment notwithstanding the verdict or new trial, defendant appealed.

The Court of Appeals, Western District, on the basis of pre-Gustafson law affirmed the trial court’s action in amending the judgment. Manford, J., dissenting, certified the cause to this Court pursuant to Mo. Const, art. V, § 10, as being in conflict with Gustafson.

We reverse and remand.

I

We substantially adopt the statement of facts set forth in the majority opinion filed by Berrey III, J. in the Court of Appeals, Western District.

On February 10, 1985, respondent was admitted to Park Lane Medical Center for the treatment of an ear infection. During her stay she received injections of Nubaine and Vistaril for pain. On February 20, Nurse James Semadeni administered the pain injection into plaintiff's left hip. On insertion of the needle, respondent testified she felt excruciating pain and screamed for the nurse to stop or speed up the injection in order to ease the pain. Nurse Semadeni continued and completed the injection.

Respondent testified that after the shot the pain continued and prevented her from lying or sitting on it. She stated the area turned black and blue and felt like a knot where the shot had been given.

On February 21,1985, respondent’s family physician, Dr. William Whitley, was notified about respondent’s difficulty. The following day, the doctor examined respondent’s hip and noted a very reddened area, approximately one centimeter in diameter, with swelling in the surrounding area which is indicative of a hematoma or subsurface bruise. An electromyogram was performed and no nerve damage was detected. Dr. Whitley did not prescribe any medication for the hip. Respondent testified Dr. Whitley did not tell her to come back for a check-up.

Approximately a week after respondent’s discharge from the hospital, the area on respondent’s hip turned black and covered approximately a four inch area. Respondent believed this to be a sign that it was healing; respondent’s former husband, Danny Love, testified that he continually advised her to see a doctor about it but respondent denied this stating her husband agreed the hematoma was in the process of healing. Danny Love suggested she “just confront Dr. Whitley about it.” He further stated that “if it was me I would have taken care of it myself and went to the doctor.” Respondent visited Dr. Whitley weekly for her children’s allergy shots but she did not mention, nor did Dr. Whitley inquire about, the condition of her hip. During this time, the blackened area, now in a scab like form, began chipping off. Respondent testified that she applied heat and ice on the area up until a few days prior to visiting Dr. Whitley again.

Finally, on April 12, 1985, approximately seven weeks after her discharge from the hospital, respondent asked Dr. Whitley to examine her hip; her request was prompted by increased pain and drainage of the infected area. Upon examination, Dr. Whitley found the area had deteriorated into a necrotic ulcer which was surrounded [722]*722by a gap in the skin and was very red and swollen. Treatment of this condition included whirlpool baths to release the core of the lesion, and two subsequent surgeries for debridement of the dead tissue and to close the ulcer.

Respondent called two experts to testify. Helen Connors, assistant professor of nursing at the University of Kansas School of Nursing, testified that an improperly administered injection can result in damage to the tissue and gluteal abscess. She stated the pain killer Vistaril should be injected into the muscle and never subcutaneously. Connors opined that Nurse Semandeni failed to meet acceptable standards of practice in administering the pain injection. Respondent also called Barbara Berry, assistant director of nursing at University of Kansas Medical Center, who testified that just because a patient complains of pain upon injection and a hematoma develops does not necessarily mean the injection was improper. Ms. Berry did state that if a patient screamed in pain during an injection, prior to release of the medication, she would stop the injection. Respondent’s other expert, Dr. James VanBiber, also testified that plaintiff's injury was caused by an “improperly given injection.” He stated an injection of Vistaril in the subcutaneous tissue would likely cause irritation and pain, and would result in the breakdown of subcutaneous tissue. He also stated that hematoma could cause a necrotic ulcer and not all hematomas are the result of negligent conduct, but believed that respondent’s injury was the result of negligent conduct.

Dr. Whitley testified on behalf of the appellant. He stated he advised respondent on discharge from the hospital to contact him if any problems arose. He opined that had he been made aware of plaintiff’s on-going difficulties, respondent’s subsequent surgeries could have been avoided.

II

The theory of submission of the case is reflected in the following instructions appearing in the legal file.

Instruction No. 6
In your verdict you must assess a percentage of fault to defendant, Park Lane Medical Center, whether or not plaintiff was partly at fault if you believe:
First, nurse James Semadeni injected the medication of Vistaril and Nubaine into plaintiff’s subcutaneous tissue, and
Second, James Semadeni was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage to plaintiff.
The term “negligent” or “negligence”, as used in this instruction, means the failure to use the degree of skill and learning ordinarily used under the same or similar circumstances by the members of nurse James Semadeni’s profession. MAI 21.01, modified, 11.06, modified Gustafson v. Benda, 661 S.W.2d 11 (Mo. en banc. 1983).
MAI 21.01 (1965 New)

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Bluebook (online)
737 S.W.2d 720, 1987 Mo. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/love-v-park-lane-medical-center-mo-1987.