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Banther v. Drew9/12/2005
Opinion Vote: REVERSED AND REMANDED.
Prewitt and Rahmeyer, JJ., concur.
Opinion:
Debbie Banther ("Plaintiff") appeals from a judgment entered on a jury verdict in favor of Dr. Steven M. Drew ("Defendant), a practicing physician, in an action for the wrongful death of her twenty-two-year-old daughter, April Banther ("April"). Plaintiff contends that the trial court erred in refusing to give a verdict directing instruction offered by her. We agree and reverse the judgment.
At approximately 10:45 p.m., January 24, 2001, April went to the Aurora Community Hospital's Emergency Room in Aurora, Missouri, where she reported to the triage nurse that she had shortness of breath and had been coughing for a least a week. Defendant saw April shortly after midnight, at which time he reviewed the triage nurse's assessment and talked with her about her symptoms including the fact that she was not coughing anything up. Defendant listened to both her lungs and found that she had some wheezing, but nothing he considered alarming. Defendant decided that April did not have the usual symptomatology of pneumonia, such as fever, labored respiration, or a productive cough. He did not order any tests that would rule out pneumonia as a cause for April's distress and diagnosed her with asthmatic bronchitis. Defendant ordered a breathing treatment for April, which resulted in a significant improvement of her air flow, and as a result further convinced Defendant that she had asthmatic bronchitis. After April told Defendant that she felt better and could breathe easier he instructed a nurse to discharge her with a four ounce bottle of Robitussin AC, with a prescription for an additional four ounces if needed, and a medium-dose inhaler with Albuterol together with instructions on their use.
Plaintiff, with whom April lived, awoke around 7:00 a.m. that morning and found April sitting up in a chair because she was having trouble breathing lying down. April told her that she had been to the emergency room during the night and was diagnosed with a viral infection. Plaintiff and April decided to drive to Marshall, Missouri, later that afternoon. On the way back to Aurora April found that she could not eat and breathe at the same time. When they arrived in Aurora Plaintiff took April to the emergency room because her condition had worsened to the extent she could hardly move and breathe at the same time. She was seen by Dr. Andelin, who within an hour ran a CBC (common blood count) test, chest x-ray and blood gases and decided that she needed to be transferred to St. John's Hospital in Springfield, Missouri, in case she needed to be put on a mechanical ventilator.
April was treated at the St. John's Emergency Room in the late evening of January 25, 2001, where she was considered to be in need of critical care and was referred to Dr. Donald K. Wantuck ("Dr. Wantuck"), a pulmonologist. Dr. Wantuck found that April had exceptional breathing problems, some of which were related to the nature of her illness and some related to her physical status. April was 5'2" tall, weighed 250 pounds, and was a smoker, which led to "a lot of impairment of her mechanical breathing apparatus." After a battery of tests and treatment, Dr. Wantuck diagnosed April with "bilateral pneumonia of undetermined origin." April died on January 27, 2001.
Plaintiff's only point relied on is that the trial court erred in not giving her tendered verdict director, Instruction C, which read:
Your verdict must be for [Plaintiff] if you believe:
First [Plaintiff] was the natural mother of the deceased, [April], and Second, either:
Defendant failed to order
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