Morton v. Mutchnick

904 S.W.2d 14, 1995 WL 293153
CourtMissouri Court of Appeals
DecidedJune 22, 1995
DocketWD 49842
StatusPublished
Cited by7 cases

This text of 904 S.W.2d 14 (Morton v. Mutchnick) 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
Morton v. Mutchnick, 904 S.W.2d 14, 1995 WL 293153 (Mo. Ct. App. 1995).

Opinions

HANNA, Judge.

The appellants (plaintiffs below), Ralph and Delores Morton, are the parents of Ralph Morton, Jr. The parents filed this action in the Circuit Court of Jackson County, Missouri, on March 9, 1993, for the wrongful death (§ 537.080, RSMo Supp.1993) and lost chance of recovery stemming from the death of their son. Mr. Morton died from bilateral pneumonia secondary to AIDS.

Counts I and II of plaintiffs’ second amended petition sought damages for the wrongful death of their son and Count III for his lost chance of recovery. The defendants filed a Joint Motion for Judgment on the Pleadings. The trial court held several hearings on the defendants’ motions and on July 29, 1994, sustained the defendants’ joint motions for judgment. The plaintiffs appealed.

A motion for judgment on the pleadings admits the truth of all well-pleaded facts in the petition. Angelo v. City of Hazelwood, 810 S.W.2d 706, 707 (Mo.App.1991). Those facts are as follows.

Mr. Morton received health care services from the defendants from June 10,1989, until he died on March 9, 1990. He first went to Menorah Health Services (Menorah) for evaluation and treatment of a sore on the upper left side of his back on June 10, 1989. He was seen, diagnosed and treated by Drs. Mutchnick, Stubbs and Hargett. The sore was diagnosed as an infected sebaceous cyst which was drained and later, antibiotics were prescribed. According to Dr. Mutchnick’s office records, the sore did not heal adequately until January 27, 1990.

Mr. Morton returned to Menorah on February 14, 1990, with complaints of fatigue, dry cough, and loss of appetite. The condition was originally diagnosed as probable influenza. The patient was told to return if the symptoms persisted. On a return visit, medication was prescribed. On February 16, he was examined by Dr. Hargett, who recorded that the patient was suffering from dyspnea so severe that “even short walks and blowing his nose” left him physically exhausted. He was seen again on February 27, continuing to suffer from persistent dyspnea and hypocalcemia. The Morton family consulted with Dr. Hargett and the plaintiffs’ petition alleges that they requested that their son be hospitalized, but the doctor refused. On March 2, 1990, Mr. Morton returned to Menorah, and during the course of the visit, he collapsed and was admitted to Menorah. The admission summary indicates that “consideration was given to the possibility of an AIDS-type syndrome.” The patient’s condition deteriorated rapidly during his one week stay at the hospital, and he died from respiratory distress secondary to AIDS on March 9, 1990.

Counts I and II are for the wrongful death of Mr. Morton. It is alleged that the defendants negligently failed to diagnose and treat Mr. Morton for AIDS and, as a result, his pre-existing condition worsened and his death was hastened. The petition alleges that but for the professional negligence of the defendants, Mr. Morton would have lived longer. Count III is an alternative count that states that as a direct result of the defendants’ professional negligence, Mr. Morton suffered a lost chance of recovery because he was deprived of the opportunity to undergo therapeutic techniques designed to postpone the onset of secondary infections to AIDS, and because the defendants failed to adequately treat him for his positive HIV status.

The Missouri legislature has provided a cause of action for the wrongful death of a person “[wjhenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such [16]*16person to recover damages in respect thereof. ..§ 587.080, RSMo Supp.1993.

A motion for judgment on the pleadings should be sustained if, from the face of the pleadings, the moving party is entitled to judgment as a matter of law. Angelo, 810 S.W.2d at 707. In order to assert a viable claim for wrongful death, the plaintiffs must allege facts that show Mr. Morton’s death was caused by defendants’ negligence. A pleading that recites legal conclusions will not establish a valid claim. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 379, 383 (Mo. banc 1993). In Missouri, causation is an essential element of a cause of action for wrongful death. See, e.g., Honey v. Barnes Hosp., 708 S.W.2d 686, 692 (Mo.App.1986). Plaintiffs’ claim for wrongful death in Counts I and II states facts demonstrating that, but for the defendants’ failure to diagnose Mr. Morton’s AIDS condition, the deceased would have lived longer. The Missouri Supreme Court discussed this issue in Wollen v. DePaul Health Ctr., 828 S.W.2d 681 (Mo. banc 1992).

In Wollen, the deceased’s spouse alleged that the defendants failed to diagnose her husband’s gastric cancer, and given appropriate treatment he would have had a thirty percent chance of a cure and survival. The trial court dismissed Mrs. Wollen’s wrongful death claim because the petition failed to plead a causal connection between the defendants’ negligence and Mr. Wollen’s death. Id. at 682. The court examined failure to diagnose cases and identified three possibilities with respect to proof of causation: “two of which involve ‘reasonable medical certainty,’ and a third that does not.” Id. The first possibility identified was the “but for” causation, in which the patient seeks a diagnosis of his disease, for which a cure is available in the overwhelming majority of cases. The second possibility was the opposite — that there is no known cure for the disease and medical science, at best, can only extend the patient’s life for a short time. The third possibility involved those cases in which medical science has a treatment that works in a large number of cases and fails in a large number of cases. In these cases there is a real chance that the patient will survive and a real chance that the patient will die from the disease, even if properly diagnosed. Therefore, it is impossible for the medical expert to state with “reasonable medical certainty” the effect of the failure to diagnose, exeept that the failure to diagnose eliminated whatever chance the patient would have had. Id. The court concluded that when all of the defendants’ negligence acts are taken together, their negligence might have contributed to Mr. Wollen’s death, since he only had a thirty percent chance of surviving the cancer even if it had been diagnosed earlier. Id. at 683. The court held that the facts did not state a cause of action for Mr. Wollen’s death. Id.

The plaintiffs analogize the facts of this case to the criminal defendant who murders a terminally ill patient. They contend that this does not excuse the criminal defendant from his wrongdoing simply because the patient would have died eventually. Of course, one who murders is, by definition, the competent force that brings about the death. An incurable disease does not prevent one from maintaining a successful cause of action for damages. There are facts, different from those in this case, which can satisfy the causation requirement.

The point was demonstrated in Kilmer v. Browning, 806 S.W.2d 75

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Related

In re Estate of Mickels
542 S.W.3d 311 (Supreme Court of Missouri, 2018)
Portis v. Greenhaw
38 S.W.3d 436 (Missouri Court of Appeals, 2001)
Super v. White
18 S.W.3d 511 (Missouri Court of Appeals, 2000)
Morton v. Mutchnick
904 S.W.2d 14 (Missouri Court of Appeals, 1995)

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Bluebook (online)
904 S.W.2d 14, 1995 WL 293153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morton-v-mutchnick-moctapp-1995.