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Burns v. Elk River Ambulance9/18/2001
Appeal From: Circuit Court of Jasper County, Hon. William C. Crawford
Opinion Vote: APPEAL NO. 23656 AFFIRMED; APPEAL NO. 23738 AFFIRMED.
Shrum, P.J., and Barney, C.J., concur.
This medical negligence case centers on the death of Clifton Burns (Decedent), an 18-year-old man who suffered a fatal asthma attack. Madonna Burns (Plaintiff), decedent's mother, brought suit against Elk River Ambulance, Inc. (Elk River), a basic life-support ambulance, Joplin Emergency Medical Services (JEMS), an advanced life-support ambulance, and the receiving hospital, St. John's Regional Medical Center of Joplin (St. John's). Plaintiff contended the defendants were negligent and that their negligence caused the death of her son.
Decedent's death occurred after an asthma attack in Sarcoxie, Missouri. Initially, Decedent was transported by Elk River ambulance from Sarcoxie toward Joplin on Interstate 44. The Elk River ambulance was manned by two Emergency Medical Technicians (EMTs). The EMTs determined en route that decedent was critically ill. They called their dispatcher requesting an "intercept" by an advanced life-support ambulance. JEMS' ambulance, manned by two paramedics, met the Elk River ambulance just west of the Carthage exit on Interstate 44. At this intercept point, JEMS' paramedics administered an Albuterol Sulfate breathing treatment. Eventually, the trip resumed to St. John's with JEMS paramedics on board the Elk River ambulance. One of Plaintiff's witnesses testified that the Elk River ambulance was stopped 15 to 20 minutes at the intercept point. Decedent had stopped breathing upon arrival at the hospital. Although his heart was beating as Decedent was unloaded, his heart stopped beating upon arrival at the emergency room. Decedent was placed on life support systems, but two days later the decision was made to disconnect him. He died shortly thereafter.
The jury returned a verdict finding JEMS 100 percent at fault and awarded Plaintiff $1,000,000 in past non-economic damages and $500,000 in future non-economic damages. Pursuant to section 538.210, the statute limiting non-economic damages, the trial court reduced the award to $528,000, applying the monetary limitations for 2000, the year of the trial, rather than 1995, the year of the death. The trial court ordered that one-third of the $528,000 or $175,824 should be attributable to future damages because the jury awarded one-third of the total damages as future non-economic damages. At JEMS' request, in accordance with section 538.220.2, the trial court then ordered that $55,211.40 of the $175,824 be paid in five equal yearly installments and bear interest at the rate of 6.40 percent per annum. The balance of the judgment, $472,788.60, was denominated as immediately due and payable.
JEMS and Plaintiff appeal. Additional facts are discussed as relevant to each point relied on.
JEMS' APPEAL No. 23656
JEMS's first point claims the judgment is void because the trial court lacked subject matter jurisdiction when Plaintiff failed to timely file the affidavit required by section 538.225. JEMS asserts that "the filing of such affidavit is a condition precedent to the trial court assuming jurisdiction over a medical malpractice cause of action."
Initially we note that appellate review is limited to those issues presented in an appellant's points, Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405 (Mo. 1964); Don L. Tullis & Associates, Inc. v. Gover, 577 S.W.2d 891, 893 (Mo.App. 1979), and our opinion on this point should be so viewed.
In its entirety, section 538.225 provides:
1. In any action against a health care prov
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