Ruth Mickels v. Raman Danrad, M.D.

486 S.W.3d 327, 2016 WL 1580268, 2016 Mo. LEXIS 112
CourtSupreme Court of Missouri
DecidedApril 19, 2016
DocketSC94844
StatusPublished
Cited by7 cases

This text of 486 S.W.3d 327 (Ruth Mickels v. Raman Danrad, M.D.) 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
Ruth Mickels v. Raman Danrad, M.D., 486 S.W.3d 327, 2016 WL 1580268, 2016 Mo. LEXIS 112 (Mo. 2016).

Opinions

Paul C. Wilson, Judge

Ruth Mickels, Joseph Mickels, Jr., Billy Joe Mickels, Brittany Mickels, and Jennifer Unglesbee (“Appellants”) brought a wrongful death action against Dr. Raman Danrad (“Dr. Danrad”) for negligent failure to diagnose an incurable, terminal brain tumor in Joseph Mickels, Sr. (“Mr. Mickels”). The trial court granted Dr. Danrad’s motion for summary judgment and dismissed Appellants’ petition on the ground that Appellants could not establish Dr. Danrad’s negligence caused Mr. Mick-els’ death so as to be actionable under section 537.080.1.1 This Court has jurisdiction under article V, section 10, of the Missouri Constitution. The judgment is vacated, and the case is remanded.

Facts

On December 8, 2008, Mr. Mickels sought medical attention after experiencing numbness, blurred vision, and headaches. He underwent a magnetic resonance imaging (“MRI”) procedure. On December 12, 2008, Dr. Danrad reviewed the MRI but made no diagnosis.

On February 17, 2009, Mr. Mickels underwent a CT scan of his brain after arriving at a hospital in an altered mental state. Dr. Danrad again reviewed the results, but this time he diagnosed Mr. Mickels with a brain tumor that was both terminal and incurable. Despite immediate surgery, Mr. Mickels died of this tumor on June 12, 2009.

On June 7, 2012, Appellants filed a wrongful death action against Dr. Danrad. Appellants presented evidence that — even though Mr. Mickels certainly would have died of his brain tumor with or without Dr. Danrad’s alleged negligence — he would not have died on June 12, 2009, had the brain tumor been diagnosed following the initial MRI. Mr. Mickels’ treating oncologist, Dr. Carl Freter, testified:

[The tumor] was incurable when it was found and it would have been incurable at the time ... [of] the original [MRI] ... [however] it is more likely than not that if [the tumor] had been discovered earlier ... [Mr. Mickels] would have lived an additional six months on average.

Dr. Danrad moved for summary judgment on the ground that the Appellants had not pleaded and could not prove facts showing that his alleged negligence resulted in Mr. Mickels’ death as required by section 537.080.1, The trial court agreed, entered judgment dismissing Appellants’ petition, and this appeal followed.

Standard of Review

The trial court’s summary judgment ruling is reviewed de novo. Manner [329]*329v. Schiermeier, 393 S.W.3d 58, 61-62 (Mo. banc 2013). Summary judgment is appropriate where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993).

Analysis

As alleged, Dr. Danrad’s negligence certainly injured Joseph Mickels, Sr., but it just as certainly did not kill him. Instead, Mr. Mickels died of what all parties characterize as an incurable, terminal brain tumor. Because Mr, Mickels’ death was not caused by Dr. Danrad’s negligence, appellants cannot sue for wrongful death under section 537.080.1. Every state supreme court to address this issue has reached the same conclusion. See, e.g., Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984) (trial court should have directed verdict for defendant in wrongful death case because “a jury could not reasonably find that but for the negligent failure to properly diagnose and treat Mr. Gooding he would not have died”); Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97, 104 (1971) (“In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiffs evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, ... the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery the patient probably would have survived.”) overruled on other grounds by Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480 (1996); Thompson v. Anderson, 217 Iowa 1186, 252 N.W. 117, 120-21 (1934) (affirming directed verdict in a wrongful death suit brought against a physician for failure to diagnose tetanus when the evidence failed to show any probability that the death of the decedent would not have resulted from tetanus, regardless of any negligence or malpractice on the part of the physician).

But this does not mean that Dr. Danrad’s negligence is not actionable. It is. Section 537.020 provides: “Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death_” § 537.020 (emphasis added). Sections-537.020 and 537.080 are two sides of a single coin. Wollen v. De-Paul Health Center, 828 S.W.2d 681, 685 (Mo. banc 1992) (“survivorship statute and the wrongful death statute are mutually antagonistic”).2 An action for personal injuries that result in death may only be brought under the latter statute, while actions “other than those resulting in death” may be brought under the former. Here, Dr. Danrad’s alleged negligence did not cause Mr. Mickels’ death, but it surely injured him by depriving him of the opportunity to delay his death for up to six months.3 Mr. Mickels would have been able to sue Dr. Danrad for this negligence [330]*330while he lived, and his personal representative can bring that action under section 537.020 after his death.

Dr, Danrad concedes that this is the approach taken in Tappan v. Florida Medical Ctr., Inc., 488 So.2d 630, 631 (Fla.Dist. Ct.App.1986), and Williams v. Bay Hospital, Inc., 471 So.2d 626 (Fla.Dist.Ct.App.1985). In Tappan, even though the evidence showed that “but for” the defendant’s negligence the decedent would have lived six to eight months longer, the court concluded: '

. .that no cause of action exists under Florida’s Wrongful Death Act because of traditional causation principles, which require proof under the but-for test. [Defendant’s] alleged negligence in failing to diagnose the lung cancer was not a cause-in-fact of the death. Mrs. Tap-pan could- not, prove that with proper diagnosis and treatment it was ‘more likely than not’-- that Robert Tappan would have survived.

Tappan, 488 So.2d at 631. Instead, the court'held that -“appellant is entitled to maintain this cause for recovery of such damages as are recoverable in a survivor’s action.... [and] should be given an oppor-. tunity to file a third amended complaint to state a cause of action under the survival statute.” Id.

Similarly, in Williams, the decedent died of lung cancer that allegedly should have been diagnosed earlier but, even if it had been, decedent’s death from this cancer could only have been delayed several months and not prevented.

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486 S.W.3d 327, 2016 WL 1580268, 2016 Mo. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruth-mickels-v-raman-danrad-md-mo-2016.