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Banther v. Drew9/12/2005
left to mere "speculation, conjecture and surmise" in connecting the facts at hand with the claims upon which the plaintiff seeks relief. Ladish, 879 S.W.2d at 628; Cowan v. Perryman , 740 S.W.2d 303, 304 (Mo.App. S.D. 1987). "Substantial evidence is that evidence which, if true, is probative of the issues and from which the jury can decide the case." McCrackin v. Plummber , 103 S.W.3d 178, 181 (Mo.App. W.D. 2003) (quoting Butts v. Express Personnel Servs., 73 S.W.3d 825, 839 (Mo.App. S.D. 2002). Here Dr. Kesl's testimony, when considered in the light most favorable to Plaintiff, constituted substantial evidence that Defendant violated the applicable standard of care and that it caused or contributed to April's death.
Defendant alleges that the evidence tended to show that Defendant could only be negligent for failing to administer antibiotics if he had first diagnosed or suspected pneumonia. Therefore, he argues, if Defendant was not negligent in failing to diagnosis pneumonia, i.e. failing to conduct a chest x-ray or a CBC, he could not have been negligent for failing to administer antibiotics. That thesis is contrary to Dr. Kesl's testimony. He stated that even if he had gotten negative results from a chest x-ray of April, Defendant still should have given her antibiotics. Viewed in a light most favorable to Plaintiff, the evidence tends to show that Defendant had a duty to administer antibiotics based upon the information he had available to him on January 24, 2001, regardless of whether he had conducted any further testing.
Dr. Kesl also provided substantial evidence that Defendant's failure to administer antibiotics caused or contributed to April's death. He opined that had April been prescribed or given antibiotics, a chest x-ray or a complete blood count on January, 24 2001, she would have probably lived. Dr. Kesl also provided substantial evidence that Defendant's failure to administer antibiotics caused or contributed to April's death. He opined that had April been prescribed or given antibiotics, a chest x-ray or a complete blood count on January, 24 2001, she would have probably lived. While this was the only testimony from Dr. Kesl as to causation, it was enough to constitute "substantial" evidence. See McCrackin , 103 S.W.3d at 181; Ladish, 879 S.W.2d at 628.
It is not for this court to pass on the credibility of the evidence, but rather to asses whether there was "substantial evidence" as to the claim Plaintiff sought to submit to the jury. McCrackin , 103 S.W.3d at 181. "Substantial" does not necessarily mean quantity or even quality, it simply means that the evidence relied on must be probative of the issues it was offered to prove. Id . While the evidence concerning antibiotics was not overwhelming, that which was presented tended to prove that Defendant had a duty to administer antibiotics to April regardless of whether he conducted a CBC or a chest x-ray, that he did not do so, and that this omission caused or contributed to April's death.
After taking all Plaintiff's evidence as true and drawing all reasonable inferences from such in favor of Plaintiff, the testimony that was put before the jury was probative of the "essential facts" necessary to support giving Instruction C to the jury. Accordingly we reverse the judgment and remand for further proceedings.
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