Wagner v. Piehler

879 S.W.2d 789, 1994 Mo. App. LEXIS 1184, 1994 WL 372027
CourtMissouri Court of Appeals
DecidedJuly 19, 1994
DocketNo. WD 48722
StatusPublished
Cited by9 cases

This text of 879 S.W.2d 789 (Wagner v. Piehler) 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
Wagner v. Piehler, 879 S.W.2d 789, 1994 Mo. App. LEXIS 1184, 1994 WL 372027 (Mo. Ct. App. 1994).

Opinion

TURNAGE, Chief Judge.

Nicole M. Wagner brought suit against Jeffrey M. Piehler, M.D., Mid-America Thoracic and Cardiovascular Surgeons, P.C., Eric M. Thompson, M.D. and St. Luke’s Hospital of Kansas City for medical malpractice. A jury returned a verdict in favor of the defendants. Nicole contends the court erred in excluding expert opinions, in sustaining a motion in limine, failing to remove a juror, and in making improper comments toward her counsel. Affirmed.

Nicole was required by her employer in Hiawatha, Kansas to have a chest x-ray. The x-ray revealed a tumor on the chest wall and although her physician thought the tumor was benign, he referred her to a specialist to have it removed. Nicole was referred to Dr. Piehler in Kansas City. Dr. Piehler suggested that he could remove the tumor without making a long incision by entering the chest under her right armpit. In August 1989 Drs. Piehler, Thompson and Wathana-charoen performed the surgery at St. Luke’s in Kansas City. Following the surgery Nicole was unable to raise her right arm above her shoulder and complained of weakness in her arm. These complaints were consistent [791]*791with what Nicole had been advised she would experience following surgery.

In December 1989, or early January 1990, a co-worker at Sonic Drive-In told Nicole that something was sticking out of her back. Nicole thought this was simply a joke. However, in February 1990 Nicole was in a motel with her mother and her mother observed her shoulder blade prominently extending out from Nicole’s back.

Nicole returned to see Dr. Piehler who examined her and referred her to a neurologist. A diagnosis was made of a winging of the scapula caused by a damaged long thoracic nerve.1

Physical therapy failed to improve Nicole’s condition and in early October 1990 she went to the Mayo Clinic. Physicians at the Mayo Clinic recommended a second surgery to try to return the scapula to its proper position. The surgery was partially successful but some winging of the scapula continues.

During trial the parties agreed that the medical records of Nicole from the Mayo Clinic could be admitted under the Uniform Business Records as Evidence Act with the right of the defendants to object to the irrelevant or immaterial portions.

It was agreed at trial that the winging of the scapula was the result of an injury to the long thoracic nerve. The issue tried was whether or not the thoracic nerve was injured during the surgery.

Nicole took a discovery deposition from Dr. Michael B. Wood, an orthopedic surgeon at the Mayo Clinic, in which Dr. Wood stated that with a reasonable degree of medical certainty he believed the surgery caused the winging of Nicole’s scapula. When Dr. Wood’s evidentiary deposition was taken, he stated that he based his opinion that the injury to the long thoracic nerve was caused by the surgery on the history he had taken from Nicole which indicated that the winging occurred very shortly after surgery. Dr. Wood indicated that if the winging did not occur until some months after surgery, the surgery was not the cause.

At trial Nicole attempted to read into evidence an answer which Dr. Wood made in the evidentiary deposition in which he stated that he relied upon the history given to him by Nicole and based upon that history it was his opinion that the winging was due to the surgery. On objection that there was no foundation for Dr. Wood to express an opinion as to the cause of the injury, the court excluded the answer.

Nicole contends that the physician was entitled to express an opinion based upon his examination of Nicole and his experience and training. Nicole overlooks the fact that Dr. Wood expressly stated that his opinion was based on the history which he took from Nicole in which Nicole told him that the winging occurred shortly after the surgery. Contrary to what Nicole had told Dr. Wood, she testified at trial that the first time she noticed the winging was in February 1990 when her mother called it to her attention.

This resulted in Nicole attempting to introduce a medical opinion which was not based on facts in evidence because all of Nicole’s evidence indicated that the winging did not appear until four to six months after the surgery.

Further, Nicole’s argument misses the mark because the critical element in Dr. Wood’s opinion was the time of the appearance of the winging in relation to the surgery. An examination of Nicole coupled with Dr. Wood’s knowledge and experience could not give him any information on that fact. He could only rely on the history which Nicole had given him to establish the time the winging appeared.

In reviewing Dr. Wood’s testimony, it is clear that he expressed his opinion that the surgery caused the winging based on Nicole’s statement to him that the winging occurred shortly after surgery.

In White v. American Republic Ins. Co., 799 S.W.2d 188, 193[19-21] (Mo.App.1990), the court stated:

[792]*792A doctor’s opinion, like that of any expert, is in the nature of a conclusion of fact, but it must have a substantial basis in the facts actually established, and such opinion cannot be invoked to establish the facts.

The court correctly excluded Dr. Wood’s opinion that the winging was related to the surgery because such opinion was based on a fact not in evidence — that the winging appeared shortly after the surgery.

Nicole next contends that the court erred in excluding portions of the Mayo medical records of Nicole which contained opinions of Dr. Wood and Dr. Daube, a neurologist. The opinion of Dr. Wood contained in the medical records is based on the history given by Nicole that the winging appeared shortly after the surgery. For the reason just stated above, that opinion lacked a foundation in facts in evidence and was not admissible.

Nicole contends that a neurological record written by Dr. Daube should have been admitted in evidence. In that record Dr. Daube stated the history of Nicole’s surgery and that her mother noticed the prominence of her shoulder blade in January 1990. He stated EMG testing revealed severe damage to the long thoracic nerve. He set out the results of his examination which were normal except for the severe weakness of the right shoulder blade. Under the “impression” portion of the report, Dr. Daube wrote “severe thoracic nerve neuropathy, likely due to trauma in surgery.” The neurological record did not contain any reasons or facts which led Dr. Daube to write his impression that the long thoracic nerve injury was likely secondary to trauma in surgery.

The neurological record did not indicate that Dr. Daube had the opinion that the surgery caused the thoracic nerve neuropa-thy with a reasonable degree of medical certainty. For that reason the record is insufficient to be admissible as expert medical testimony. Holmes v. Gamewell, 712 S.W.2d 34, 37[7] (Mo.App.1986). The court correctly excluded the neurological record from evidence.

Nicole contends that because the neurological record is contained in business records which were admitted in evidence the record containing Dr. Daube’s impression was admissible. In Stewart v. Sioux City & New Orleans Barge Lines, Inc., 431 S.W.2d 205

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Bluebook (online)
879 S.W.2d 789, 1994 Mo. App. LEXIS 1184, 1994 WL 372027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-piehler-moctapp-1994.