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Lindquist v. Scott Radiological Group5/31/2005
Introduction
Karen Lindquist ("Plaintiff"), the Personal Representative of the Estate of Michael Lindquist, appeals from a judgment of the Circuit Court of the City of St. Louis, which granted: (1) a new trial to Mid-America Orthopaedic Surgery ("Mid-America") and Barnes-Jewish St. Peters Hospital ("Barnes-Jewish"); and (2) judgment notwithstanding the verdict ("JNOV") to Scott Radiological Group ("Scott Radiological") in connection with Mr. Lindquist's claims for personal injury as a result of medical negligence. Barnes-Jewish also contends that the trial court erred in denying its motions for directed verdict, as well as its Motion for JNOV, and on the grounds that Plaintiff failed to adduce evidence of agency sufficient to impose vicarious liability. We affirm in part and reverse and remand in part.
Background
In March 1999, at age 51, Michael Lindquist developed pain between his shoulder blades. In an attempt to control the pain, Mr. Lindquist took over-the-counter medication. However, the pain worsened and, in early April 1999, Mr. Lindquist saw his family physician, Dr. Farrell. After an examination, Dr. Farrell diagnosed Mr. Lindquist as having "thoracic somatic dysfunction," administered osteopathic manipulation and prescribed medication.
When the manipulation and medication did not alleviate the pain, Mr. Lindquist sought a second opinion from Dr. Weis, an orthopedic surgeon. The intake nurse's records from Mr. Lindquist's April 20, 1999 visit indicate that he told the intake nurse that he was experiencing "sharp pain, squeezing pressure pain, in his upper back, right side, his mid back on the right side for approximately one week. . .[and that] standing up and moving around is best position." When asked if he had done anything to injure his back, Mr. Lindquist explained that he washed his truck and picked up a couch. After examining Mr. Lindquist, Dr. Weis diagnosed him with " thoracal lumbar sprain with exacerbation of degenerative arthritis in his back." Dr. Weis prescribed muscle relaxants and pain medication, and scheduled Mr. Lindquist for a follow-up examination two weeks later.
Mr. Lindquist returned to Dr. Weis on May 4, 1999 complaining of continued soreness and trouble sleeping. At a May 11, 1999 appointment, Mr. Lindquist reported that his back was "a little better." In his medical records, Dr. Weis noted that Mr. Lindquist had "good healing of the muscle spasm." Dr. Weis further reported: " his patient was improving greatly, to the point that he was almost over the symptoms that he presented with. I saw no reason at all to pursue any further examination of that patient in a particular area that was involved or any further testing that needed to be done. I fully expect him at the next visit no complaint or not return at all."
However, on May 25, 1999, Mr. Lindquist returned to Dr. Weis complaining of increasing back pain at night rendering him unable to sleep. Dr. Weis believed that Mr. Lindquist's increased pain at night and inability to sleep was due to degenerative arthritis in his back. Accordingly, Dr. Weis adjusted Mr. Lindquist's medications and ordered Mr. Lindquist to return in two weeks. Mr. Lindquist returned on June 1, 1999 complaining of muscle spasms. Dr. Weis attempted to relieve the spasms through manipulation and again altered Mr. Lindquist's medications. Mr. Lindquist never returned to Dr. Weis.
On June 7, 1999, Mr. Lindquist experienced mid-back pain that radiated into his chest. Fearing that Mr. Lindquist was having a heart attack, Plaintiff transported her husband to the emergency room at Barnes-Jewish Hospital in St. Peters. After Mr. Lindquist signed forms consenting to
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