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Mast v. Surgical Services of Sedalia3/28/2003
id H. Wuellner, M.D., was thereby negligent, and
Fourth, such negligence caused or directly contributed to cause the death of Shirley Mast.
1. The Trial Court Did Not Error In Submitting Verdict Directors 8 and 10
It is the appellants' contention on appeal that "Instructions No. 8 and No. 10 incorrectly instruct the jury that failure to treat was the only issue, when obviously failure to diagnose malnutrition was also evident, and supported by Appellants' expert testimony." We hold that this point must be denied because the trial court's failure to include "failure to diagnose malnutrition" language in verdict directors 8 and 10 did not constitute error. In reviewing whether the trial court erred in submitting a verdict director, this court views the "evidence in the light most favorable to the submission of the instruction." Hampton , 50 S.W.3d at 901. "To obtain reversal of a jury verdict on grounds of instructional error, Appellants must show that: 1) the offending instruction misdirected, misled or confused the jury, and 2) prejudice resulted from the error." Holder v. Schenherr , 55 S.W.3d 505, 507 (Mo. App. W.D. 2001). Finally, the "burden of proof rests with the party alleging error." Id.
To repeat, it is the appellants' contention that "Instructions No. 8 and No. 10 incorrectly instruct the jury that failure to treat was the only issue, when obviously failure to diagnose malnutrition was also evident, and supported by Appellants' expert testimony." Appellants are correct that there was some testimony at trial by their expert witness, Dr. Schaefer, that Dr. Braverman failed to diagnose Mrs. Mast's alleged malnourished condition. But this fact, standing alone, does not lead this court to conclude that the trial court erred by not including "failure to diagnose malnutrition" language in jury instructions 8 and 10.
It is true that the trial court seemingly concluded that the evidence presented at trial did not support giving a jury instruction that would have allowed the jury to find that respondents were liable for failing to diagnose malnutrition. "Any instruction submitted to a jury must be supported by substantial evidence." Deckard , 31 S.W.3d at 17. Moreover, " hether sufficient evidence was presented to submit an issue to the jury is a legal question and not an exercise of judicial discretion." Id. at 18. In order to assert a successful medical malpractice claim, as a matter of law, it is incumbent upon the plaintiff to prove the following: "1) the defendant's act or omission that failed to meet the requisite medical standard of care, 2) negligent performance of that act or omission, and 3) a causal connection between the act or omission and the plaintiff's injury ." Foster v. Barnes-Jewish Hosp. , 44 S.W.3d 432, 435 (Mo. App. E.D. 2001). After reviewing the trial transcript, we conclude that the evidence presented by appellants, in proving that respondents' failure to diagnose malnutrition caused Mrs. Mast's death, was less than substantial. Appellants' expert witness discussed at great length as to how the respondents' failure to treat Mrs. Mast's malnourished condition with TPN caused her death. However, Dr. Schaefer's testimony, as to whether the respondents' failure to diagnose her malnourishment caused her death, was confined to one interrogatory:
Q: Doctor, do you have an opinion within a reasonable degree of medical certainty whether the failure of Dr. Braverman to diagnose or treat the malnutrition of Shirley Mast caused her death?
A: Yes.
Q: And what is your opinion, sir?
A: I believe it did.
(emphasis added).
This testimony can hardly be deemed
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