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Davolt v. Highland2/28/2003
Opinion Vote: AFFIRMED. Breckenridge, P.J., and Holliger, J., concur.
Opinion:
Jimmie Davolt sued Dr. Thomas Highland for medical malpractice. A jury found in favor of Mr. Davolt and awarded $700,000 in total damages.
Dr. Highland brings four points of error in his appeal from the amended judgment entered upon the jury's verdict. He alleges that the trial court erred: (1) in denying his motion for directed verdict and judgment notwithstanding the verdict (JNOV); (2) in denying admission of a videotape demonstration of the surgical procedure at issue; (3) in admitting Mr. Davolt's expert's letters to Mr. Davolt's counsel -- Plaintiff's Exhibits 4 and 5 -- into evidence and thereafter allowing the exhibits to go to the jury during deliberations; and (4) in computing periodic payments of future damages under section 538.220.
We affirm.Background Jimmie Davolt worked as an electroplater at Toastmaster in Macon, Missouri. On July 18, 1991, while shoveling hazardous waste, Mr. Davolt "fell flat to the floor." He immediately "felt tingling and burning in arms and legs and neck and all through back." After seeing several doctors, it was determined that he required neck surgery, so he was referred to Dr. Highland, an orthopedic surgeon in Columbia, Missouri.
Dr. Highland performed surgery on Mr. Davolt's neck on October 4, 1991. After four days in the hospital, Mr. Davolt returned home. He was still experiencing constant numbness, tingling and burning sensations -- "like needles and pins" -- in his arms and legs. At his monthly follow-up appointments with Dr. Highland, Mr. Davolt complained that he "felt the same" as he did before the surgery. Although he was told he could return to work three months after the surgery, Mr. Davolt did not feel he could, so he requested a second myelogram. Upon receiving results of the myelogram, Dr. Highland recommended additional surgery. However, Mr. Davolt refused to consent to the surgery and chose, instead, to pursue other doctors' opinions about his condition. After consulting with the other doctors, Mr. Davolt decided not to have a second surgery, because, as he explained, it "would be a lot worse -- chance of paralysis."
Mr. Davolt then filed his medical malpractice action against Dr. Highland. A three-day jury trial was held in July 2001, at which both parties presented extensive medical testimony and evidence pertaining to Mr. Davolt's condition and the surgical procedure performed by Dr. Highland. Dr. Dunn, Mr. Davolt's expert witness, testified that Dr. Highland had negligently performed an incomplete decompression of Mr. Davolt's spinal cord and nerve roots by failing to completely remove the bone spurs or osteophytes from Mr. Davolt's vertebrae, resulting in his ongoing symptoms. Dr. Highland's defense was that he had properly performed a complete decompression, but Mr. Davolt's injury from the fall in 1991 was permanent, so there was nothing he could do to relieve the ongoing symptoms. At midnight on Saturday, July 13, 2001, the jury entered its verdict in favor of Mr. Davolt. It found his total damages to be $700,000. The trial court thereafter entered its judgment subject to the adjudication or agreement upon periodic payments, if any, of future damages pursuant to section 538.220.
Dr. Highland then filed his post-trial motions, including: a motion for JNOV; a motion to vacate, reopen, correct, amend or modify the judgment; a motion for new trial; and an alternate motion for remittitur. Mr. Davolt filed his opposition to the post-trial motions the following month. Dr. Highland and Mr. Davolt then filed suggestions in support of an amended judgment concerning periodic paym
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