Majors v. Butner

702 S.W.2d 539, 1985 Mo. App. LEXIS 3889
CourtMissouri Court of Appeals
DecidedDecember 24, 1985
DocketNo. WD 36262
StatusPublished
Cited by4 cases

This text of 702 S.W.2d 539 (Majors v. Butner) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Majors v. Butner, 702 S.W.2d 539, 1985 Mo. App. LEXIS 3889 (Mo. Ct. App. 1985).

Opinion

CLARK, Chief Judge.

This is a medical malpractice suit in which the issue is whether a submissible case was made. The jury returned a verdict of $25,000 for the plaintiff but the trial judge sustained the defendant’s motion for judgment notwithstanding the verdict and entered judgment for defendant. Plaintiff on this appeal contends the trial court erred in setting aside the jury verdict.

The medical process for which appellant Lois Majors engaged the services of defendant Butner is known as a laparoscopic tubal ligation and is intended to render a female sterile by sealing the fallopian tubes. After inflating the patient’s abdomen with gas, the surgeon locates the tubes, grasps them with forceps and sends a charge of electricity through the forceps thereby cauterizing and closing the tubes. A feature of the procedure is the intended ability to accomplish the sterilization without surgery and the scarring which an incision to the abdomen would cause.

The procedure was performed on Mrs. Majors by Dr. Butner October 20, 1980 without any apparent misadventure. Two days later, however, she began to experi[541]*541ence abdominal pain and was returned to the hospital. Exploratory examination was made and it was determined that Mrs. Majors was suffering from peritonitis, an internal infection. The abdominal cavity was opened and it was discovered that a perforation of the small bowel had occurred causing an excretion which was the source of the infection. The damaged section of bowel was removed and Mrs. Majors made an uneventful recovery from the surgery. So far as appears in this record, no complaint is made that the sterilization was not successful or that the bowel repair caused any permanent disability or loss of function. Damages were claimed primarily for the surgical scar and the added hospitalization incident to the bowel repair.

This suit charged Dr. Butner’s negligence in the performance of the laparosco-py. The pleaded and submitted theory of the case as set out in plaintiff’s verdict directing instruction was “[Defendant perforated Lois Majors’ small bowel in performing a tubal ligation operation.” This submission required proof that the bowel perforation discovered two days after the laparoscopy was performed was caused by the defendant in the course of the surgical process. Plaintiff was also obligated to offer proof that an ordinarily careful, skillful and prudent physician operating under similar conditions would not permit such an occurrence.

To meet the latter condition, plaintiff offered the testimony of Dr. C.W. Long, plaintiff’s expert medical witness. The question of professional competence, to which Dr. Long responded, included the hypothesis that the surgeon in performing the laparoscopic tubal coagulation “perforated two small lacerations of the small bowel.” Both the submission of the act of negligence according to the jury instruction and the standard of professional competence as testified by Dr. Long depended on proof that during the operation, Dr. Butner caused a perforation of the plaintiff’s bowel.

The trial court found in its order setting aside the jury verdict that the evidence presented by plaintiff to show Dr. Butner’s conduct did not conform to the ordinary standards of professional care was “subject to different interpretations and the answer as given is speculative.” He thus ruled there was no substantial evidence upon which to submit the issue of negligence to the jury. In short, he held plaintiff failed to make a submissible case.

Plaintiff’s single point on appeal contends that a submissible case was made and that the trial judge erred in his ruling to the contrary. In support of the contention, plaintiff first argues that the testimony by her expert medical witness, Dr. Long, when coupled with the other evidence in the case, establishes that the defendant did not exercise the proper care and skill in performing the operation. This argument presumably is intended to counter the trial judge’s finding that Dr. Long’s response to the hypothetical question regarding professional competence was equivocal. Plaintiff also includes a second argument in a subject area of evidentiary sufficiency not directly embraced in the trial judge’s order. In that argument, plaintiff seeks to establish the sufficiency of her proof to show that the cause of the bowel perforations was contact between the bowel and the cauterizing instrument. That proof was essential to supply the factual basis for the hypothetical question asked of Dr. Long and was the essence of plaintiff’s case.

The approach taken by plaintiff in this two pronged but interrelated argument tends to confuse the issues in the case. In the first place, the trial judge’s order plainly bases the ruling on the ambivalence of Dr. Long’s answer which, in the expressed view of the trial judge, deprived plaintiff of the benefit of essential evidence on the standard of care violated by the defendant. The ruling did not reach the question of whether there was substantial evidence to support the hypothesis underlying the question. The second issue, proof that the bowel perforations were in fact caused by the defendant during the operation, is not, however, a subordinate consideration. If [542]*542that were not proved, then Dr. Long’s answer, whether direct or uncertain, is of no moment because there was no foundation for the question.

Because of the manner in which the case was decided by the trial judge and because of the order in which the point on appeal has been briefed by the parties, we will consider first the basis for decision below, the sufficiency of the witness’s response to the medical competence question. We must also consider the second feature of plaintiff’s proof, not only because it has been briefed by appellant and respondent, but because it affords the ground to affirm the judgment notwithstanding the verdict. King v. Clifton, 648 S.W.2d 193, 196 (Mo.App.1983). The judgment setting aside the jury verdict was correct, but not for the reason stated by the trial judge.

Certain well recognized propositions control in defining the burden of proof to be met by a medical malpractice claimant. These are restated to provide a framework with which to measure the proof in the present case. There is no presumption of negligence arising merely because medical treatment produces an adverse result. Hart v. Steele, 416 S.W.2d 927, 931 (Mo.1967). Generally, the doctrine of res ipsa loquitur is not applicable in malpractice cases, particularly where the plaintiff has alleged specific negligence. Williams v. Chamberlain, 316 S.W.2d 505, 511 (Mo.1958). To make a submissible case of medical malpractice, the claimant must present evidence that the act or omission of the physician caused the injury, the act performed or its omission was negligent and the physician in his conduct did not meet an applicable standard of medical care. Cebula v. Benoit, 652 S.W.2d 304, 307 (Mo.App.1983). Where the required degree of care and skill by a physician in the same or similar circumstances is at issue, expert medical testimony on the subject is essential to make a prima facie case. Langton v. Brown, 591 S.W.2d 84, 88 (Mo.App.1979).

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Cite This Page — Counsel Stack

Bluebook (online)
702 S.W.2d 539, 1985 Mo. App. LEXIS 3889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/majors-v-butner-moctapp-1985.