Spain v. Brown

811 S.W.2d 417, 1991 Mo. App. LEXIS 885, 1991 WL 97973
Missouri Court of Appeals·Decided June 11, 1991·No. 58469·Published·Cited by 17 cases

Opinion

AHRENS, Judge.

In this jury-tried medical malpractice case, defendants Dr. Michael Brown, Dr. Jordan Ginsburg, and Jewish Hospital appeal from a judgment in favor of plaintiffs Jeffrey and Jorja Spain. We affirm.

Defendants raise three points on appeal. First, the trial court erred in giving plaintiffs’ verdict directing instructions. We disagree, because the instructions did not give the jury a roving commission or permit an inference of negligence from injury; further, the instructions were not argumentative or confusing. Second, the trial court erred in admitting the testimony of two chiropractors and an economic expert on the issue of lost earnings. We disagree, because the testimony was relevant and the trial court did not abuse its discretion. Third, the trial court erred in excluding a videotape depicting two elbow arthrosco-pies. We disagree, because the videotape was not relevant and the trial court did not abuse its discretion.

As a high school and college student, plaintiff 1 sustained three hyperextension injuries to his right elbow. Each injury was treated non-surgically. When plaintiff was a student at a chiropractic college, his right elbow occasionally locked and was painful when he performed chiropractic manipulations.

In January, 1985, plaintiff sought medical treatment for his elbow condition at Jewish Hospital Orthopedic Clinic, where he was seen by defendant Dr. Michael Brown, an orthopedic resident in his fourth postgraduate year. After arthrograms of the elbow were taken, Dr. Brown diagnosed the condition as being caused by a bone chip in plaintiff’s elbow.

Dr. Brown and plaintiff discussed possible treatments, including arthrotomy, which involves opening the elbow joint, and arthroscopy, which involves viewing the elbow joint through a fiberoptic device inserted through a small portal incision. Based on Dr. Brown’s description of the two procedures, plaintiff elected to undergo arthroscopy.

On March 11, 1985, while plaintiff was being prepared for surgery, Dr. Brown gave plaintiff a consent form and, for the first time, informed plaintiff that arthros-copy involves risks of infection, anesthesia risks, and a risk of danger to blood vessels and the ulnar nerve. Dr. Brown did not inform plaintiff that an elbow arthroscopy also involves risks of nerve severance and paralysis.

Defendant Dr. Jordan Ginsburg, an orthopedic surgeon and assistant clinical professor, supervised and assisted Dr. Brown in the arthroscopy. Dr. Brown or Dr. Ginsburg made portal incisions on the medial and lateral sides of plaintiff’s right elbow, but no bone chip was found.

Following the arthroscopy, plaintiff’s right wrist was completely paralyzed; he was unable to raise or extend the thumb and fingers on his right hand. Exploratory *419 surgery revealed plaintiff’s right radial nerve was in the normal anatomical location; the nerve was partially divided directly underneath the scar from the lateral portal incision made during the arthrosco-py-

During the first year after the arthrosco-py, plaintiff experienced some nerve regeneration which enabled him to raise his right wrist. He did not, however, regain the ability to raise or extend the thumb and fingers of his right hand.

Upon graduation from chiropractic college, plaintiff received chiropractic licenses in three states and began teaching at a chiropractic college. In May, 1987, plaintiff purchased an established part-time chiropractic practice in Valentine, Nebraska. In July, 1989, plaintiff sold the practice and took a job with a pharmaceutical company because his right hand had weakened and the pain in his right elbow had become intense, making it difficult for him to perform chiropractic manipulations.

At the conclusion of the evidence, the jury returned a verdict in favor of plaintiff Jeffrey Spain and against all defendants, assessing damages at $1,750,000. The jury awarded plaintiff Jorja Spain $50,000 on her loss of consortium claim.

I. Verdict Directors

In their first point, defendants allege the trial court erred in giving plaintiffs’ verdict directing instructions 8, 10, 12, 16, 18 and 20. Instruction 8 reads:

Your verdict must be for the Plaintiff, Dr. Jeffrey Spain, against Defendant Michael A. Brown, M.D., if you believe: First, either:
Defendant Michael A. Brown, M.D., while performing arthroscopic surgery on Plaintiff's right elbow, placed the lateral portal at the wrong location in relation to the anatomical landmarks of Plaintiff’s elbow, or
Defendant Michael A. Brown, M.D. failed to advise Plaintiff of the risk of permanent loss of function to either his right arm, wrist or hand from the elbow ar-throscopy surgery, and
Second, Defendant Michael A. Brown, M.D., in one or more of the respects submitted in paragraph First, was thereby negligent, and
Third, such negligence either directly caused damaged [sic] to Plaintiff Dr. Jeffrey Spain or combined with the acts of Defendant Ginsburg to directly cause damage to Plaintiff Dr. Jeffrey Spain.

Instruction 10 is directed to plaintiff’s claim against Dr. Ginsburg. It provides, in part:

Your verdict must be for the Plaintiff, Dr. Jeffrey Spain, against Defendant Jordan H. Ginsburg, M.D., if you believe: First, either:
Defendant Jordan H. Ginsburg, M.D., while performing arthroscopic surgery on Plaintiff’s right elbow, placed the lateral portal at the wrong location in relation to the anatomical landmarks of Plaintiff’s elbow, or
Defendant Jordan H. Ginsburg, M.D., failed to supervise Defendant Brown’s placement of the lateral portal so that the lateral portal would be at the correct location in relation to the anatomical landmarks of Plaintiff’s elbow, * * *

Instruction 12 incorporates paragraphs First of instructions 8 and 10, and submits plaintiff Jeffrey Spain’s claim against defendant Jewish Hospital. Instructions 16, 18 and 20 submit plaintiff Jorja Spain’s derivative claims against the three defendants, and are otherwise substantially similar to instructions 8, 10 and 12, respectively-

Defendants attack these instructions as giving the jury a roving commission; allowing the jury to infer negligence from the fact of injury; and being argumentative and confusing. Defendants further contend the evidence did not support submitting the disjunctive portion of paragraph First in instructions 8, 12, 16, and 20 relating to Dr. Brown’s failure to advise plaintiff there was a risk of loss of function.

A. Roving Commission and Inference of Negligence from the Fact of Injury

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Spain v. Brown, 811 S.W.2d 417, 1991 Mo. App. LEXIS 885, 1991 WL 97973 (Mo. Ct. App. 1991).

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