|||THE COURT COURT OF APPEALS OF THE STATE OF MISSOURI EASTERN DISTRICT
|||Case Number: No. ED76202
|||April 25, 2000
|||CORA BELLE ZUMWALT, PLAINTIFF/APPELLANT, V. THEODORE KORECKIJ, M.D. AND
THE JEFFERSON MEMORIAL HOSPITAL ASSOCIATION, DEFENDANTS/RESPONDENTS.
|||Counsel for Appellant: Jack F. Allen Counsel for Respondent: John T. Eckenrode,
Stephen Potter and Darren Daley
|||The opinion of the court was delivered by: Lawrence E. Mooney, Judge
|||Appeal From: Circuit Court of Jefferson County, Hon. Timothy Patterson
|||Opinion Vote: REVERSED AND REMANDED. Teitelman, P.J., concurs. Ahrens,
J., dissents in separate dissenting opinion.
|||Cora Belle Zumwalt ("Plaintiff"), appeals the trial court's
grant of summary judgment to Theodore Koreckij, M.D. and The Jefferson Memorial
Hospital Association (collectively referred to as "Defendants"),
for a nerve injury sustained by Plaintiff in her right hand, arm, and shoulder
during the course of a right knee replacement operation. We reverse and
|||Plaintiff underwent a total right knee replacement, or arthoplasty, on
May 11, 1995 at Jefferson Memorial Hospital in Festus, Missouri. The operation
was performed by Dr. Koreckij while Plaintiff was under general anesthesia.
Upon awaking from the anesthesia, Plaintiff immediately experienced pain
in her right hand, right arm and right shoulder. Plaintiff sued Defendants
for medical malpractice. *fn1
Because Plaintiff was unable to identify specific acts of negligence, she
proceeded under the doctrine of res ipsa loquitur. Defendants moved for
summary judgment, which the trial court granted because there was no expert
testimony to show Defendants' specific injury-causing act and thus it would
be impossible for laymen to determine from common knowledge and experience
that Plaintiff's injury would not have occurred but for Defendants' negligence.
Plaintiff filed this timely appeal. Both of Plaintiff's points on appeal
allege that the trial court erred in sustaining Defendants' summary judgment
motions in this res ipsa medical malpractice case. *fn2
|||Summary judgment exists not to execute the merely weak, but rather to
euthanize the terminally ill. From its inception, summary judgment has been
regarded as "an extreme and drastic remedy and great care should be
exercised in utilizing the procedure." ITT Commercial Finance Corp.,
et al. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 377 (Mo. 1993),
quoting Cooper v. Finke, 376 S.W.2d 225, 229 (Mo. 1964). At the base of
this skepticism has been the suspicion that summary judgment "borders
on denial of due process in that it denies the opposing party his day in
court." Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 884 (Mo.App.
E.D. 1985). Therefore, on appeal we review the record in the light most
favorable to the party against whom judgment was entered. ITT Commercial
Finance, 854 S.W.2d at 376.
|||After reviewing the record in the light most favorable to Plaintiff, we
conclude that the trial court erred in granting summary judgment for Defendants,
and thereby prevented Plaintiff from submitting to the jury her medical
malpractice claim under the doctrine of res ipsa loquitur.
|||Normally, in a medical malpractice case, a plaintiff is required to establish:
(1) an act or omission by the defendant that was not in keeping with the
degree of skill and learning ordinarily used under the same or similar circumstances
by members of defendant's profession; and (2) that such negligence or omission
caused the plaintiff's injury. Washington by Washington v. Barnes Hosp.,
897 S.W.2d 611, 615 (Mo.banc 1995). However, the doctrine of res ipsa loquitur
exists to obviate the need for direct proof of negligence, and allows cases
submitted under the doctrine to proceed to the jury even in the absence
of direct proof of negligence. See Graham v. Thompson, 854 S.W.2d 797, 799
(Mo.App. W.D. 1993). In order to invoke the doctrine of res ipsa loquitur,
a plaintiff must demonstrate: (1) the occurrence resulting in injury does
not ordinarily happen in the absence of negligence; (2) the instrumentalities
that caused the injury are under the care and management of the defendant;
and (3) the defendant possesses either superior knowledge of or means of
obtaining information about the cause of the occurrence. Bass v. Nooney
Co., 646 S.W.2d 765, 768 (Mo.banc 1983).
|||Once a plaintiff establishes the three elements of res ipsa, an inference
of defendant's negligence arises. See Id. A jury can draw an inference of
negligence without expert medical testimony. Graham, 854 S.W.2d at 799.
In fact, the doctrine of res ipsa loquitur in a medical malpractice case
requires that laypersons know, based upon their common knowledge or experience,
that the cause of plaintiff's injury does not ordinarily exist absent the
doctor's negligence. Hasemeier v. Smith, 361 S.W.2d 697, 700 (Mo. 1962).
Once the inference of negligence created by res ipsa is established, it
"will defeat a motion for summary judgment even though the defendant
presents evidence tending to establish absence of negligence." Graham,
854 S.W.2d at 801, quoting Schaffner v. Cumberland County Hosp. Inc., 336
S.E.2d 116, 118 (N.C. App. 1985).
|||Here, there can be little doubt that Plaintiff has made a submissible
res ipsa case, given that Plaintiff's right hand, arm and shoulder injury
would not ordinarily occur absent negligence by Defendants in performing
a right knee replacement, the instrumentalities involved were under Defendants'
care and management, and Defendants possessed superior knowledge about the
cause of the injury. Defendants' evidence does not negate any element of
res ipsa, but rather attempts to rebut the inference of negligence created
by the doctrine. However, the inference created by res ipsa cannot be rebutted
at the summary judgment stage. Graham, 854 S.W.2d at 801. The inference
alone creates a question that may only be resolved by the trier of fact.
|||Further, Missouri courts have consistently found in factually similar
situations that a layperson could determine based upon common knowledge
or experience that the plaintiff's injury does not ordinarily exist absent
the doctor's negligence. See Calvin v. Jewish Hosp. of St. Louis, 746 S.W.2d
602 (Mo.App. E.D. 1988); Graham 854 S.W.2d 797; Swan v. Tygett, 669 S.W.2d
590 (Mo.App. E.D. 1984). Plaintiff underwent an arthoplasty, yet awoke only
to experience immediate pain in her right shoulder, arm and hand. From such
facts, a juror could conclude, based upon their common knowledge and experience,
that the cause of Plaintiff's injury does not ordinarily exist absent negligence
by the Defendants.
|||Moreover, the trial court erred in relying upon the lack of expert testimony
regarding a specific injury-causing act, to conclude it impossible for laymen
to determine from common knowledge that Plaintiff's injury would not have
occurred but for Defendants' negligence. Because a res ipsa medical malpractice
case requires no expert testimony as to negligence for submissibility, it
cannot be defeated on summary judgment by such expert testimony.
|||In addition, a party is not bound by unfavorable testimony of his witness
if that testimony stands contradicted by other evidence and circumstances.
De Lay v. Ward, 262 S.W.2d 628, 634 (Mo. 1953). As such, the testimony of
Plaintiff's tongue-tied expert does not alter our analysis, for the testimony
does not bind Plaintiff where, as here, he has produced contrary evidence
of negligence through the application of the res ipsa loquitur doctrine.
|||Therefore, the trial court erred in granting summary judgment to Defendants
by relying on expert testimony to conclude that it is impossible for laymen
to determine from common knowledge that Plaintiff's injury would not have
occurred but for Defendants' negligence. Such misuse of summary judgment
threatens to silence the doctrine of res ipsa loquitur and eviscerate the
right to trial by jury. As such, we reverse the trial court's grant of summary
judgment to Defendants and remand for further proceedings consistent with
this opinion. *fn3
|||Dissenting Opinion by Judge Ahrens:
|||I respectfully dissent. Where a "claimant" fails to prove each
and every element of its cause of action, summary judgment may be properly
entered in favor of the "defending party." ITT Commercial Fin.
Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 381 (Mo.1993).
In the present case, plaintiff failed to prove what the Missouri Supreme
Court has termed the "essential prerequisite" to the application
of the doctrine of res ipsa loquitur in medical malpractice cases, *fn4
that laypersons are able to find, based on their common knowledge and experience,
that the plaintiff's injuries ordinarily would not have occurred in the
absence of negligence.
|||Among the types of injuries which bespeak negligence to laypersons are
"unusual injuries," that is, those to an area of the body unconnected
with the surgery or treatment,
|||especially where the patient is unconscious. See Hasemeier v. Smith, 361
S.W.2d 697, 700 (Mo.1962). Missouri courts have found such injuries to exist
in the following cases: Graham v. Thompson, 854 S.W.2d 797 (Mo.App.1993)
(burn to calf following surgery to foot); Calvin, 746 S.W.2d 602 (nerve
injury to arm following surgery to spine); Swan, 669 S.W.2d 590 (burn to
chest following vaginal surgery); and Goodenough v. Deaconess Hosp., 637
S.W.2d 123 (Mo.App.1982) (injury to neck during proctoscopic examination).
Although plaintiff's injury was to an area of the body unrelated to the
area of surgery and allegedly sustained while she was under general anesthesia,
I do not find it to be sufficiently unusual such that negligence could be
inferred on the basis of lay knowledge and experience. Accordingly, I find
the foregoing cases distinguishable.
|||Regarding the burn cases, Graham and Swan, laypersons know that burns
do not occur absent the application of heat or radiation. The procedure
or treatment causing the injury in both cases involved the application of
heat--an exothermic reaction produced by the setting of the cast plaster
in Graham; a cauterizer in Swan. Given this evidence, laypersons were certainly
able to determine that burns to a part of the body unconnected with the
area of treatment ordinarily would not have occurred absent negligent use
of the cast plaster and cauterizer, respectively. Conversely, in the case
at bar, neither the nature of the injury nor the surgical procedure involved
are commonly understood by laypersons. Accordingly, laypersons are not equipped
to determine the former is caused more often than not when the latter is
|||Goodenough is distinguishable because, although the plaintiff pleaded
res ipsa loquitur, she knew the event which caused her neck injury (sliding
head-first into the headboard of the proctoscopic table when the table was
tilted for the examination) resulted from improper positioning on the proctoscopic
table prior to the examination. "The effect of gravity on the human
body is one which must be held to be within the ken of the average juror."
Goodenough, 637 S.W.2d at 126-127. There was no commonly understood force
like gravity at work in the case at bar.
|||Calvin is distinguishable in that there was evidence of specific negligence
of the parties in control. Moreover, the court's finding that such injury
was "unusual" is dicta. The only issues raised in Calvin were
whether the plaintiff was precluded from submitting her case under res ipsa
loquitur because she either failed to prove the defendant's exclusive control
or because she proved specific negligence. The defendant-appellant did not
contest the unusualness of the plaintiff's injury; the court was therefore
not required to resolve that issue to dispose of the case.
|||I do not believe the injury suffered by plaintiff in the case at bar is
so unusual that a layperson could find it ordinarily does not occur absent
negligence on the basis of common knowledge and experience. To the contrary,
resolution of the issues of negligence in this case requires knowledge of
medical science and operative procedures. These are areas of uncommon knowledge,
possessed only by those trained in medicine, not by the average layperson.
|||In addition to the nature of the injury itself, I am also persuaded that
res ipsa loquitur is not available to plaintiff in this case by the following
deposition testimony of plaintiff's expert, Dr. Berkin (with emphasis added):
|||Q: You're not here to say that anyone did anything wrong to cause this
injury that you rated, are you?
|||A: No, and I go one step further to say no one did do (sic) anything wrong.
|||... I have no explanation as to what caused her to have this problem in
her arm, and I don't think it's anything that happened to her during the
course of her surgery. It just is there. I can't explain it. She's got these
symptoms. She has some pathology apparently from an EMG study, but I have
no explanation for it.
|||Well, again, you know, I'm taking this as something that I have no explanation
for how it occurred. I don't look at it as an injury--unless I can give
a mechanism or someone can inform me of one, I don't look at it as an injury.
I look at it as something that developed without any explanation. . . .
|||If plaintiff's own medical expert cannot explain the circumstances surrounding
plaintiff's injuries, I doubt that a lay juror, armed only with his or her
own common knowledge and experience, could find that plaintiff's injuries
ordinarily would not have occurred in the absence of negligence.
|||I would affirm the trial court's summary judgment in favor of defendants.
. Plaintiff also sued Dr. Samuel Bai and various operating room personnel.
However, the trial court granted Dr. Bai's motion to dismiss Plaintiff's
claim against him because he did not participate in the operation. Plaintiff
voluntarily dismissed her claim against the operating room personnel without
prejudice because all individuals were employees of Jefferson Memorial Hospital
Association acting in the course of their employment at the time Plaintiff
was under general anesthetic.
. We note at the onset that Plaintiff's first point relied on fails to comply
with Rule 84.04(d), in that it is four paragraphs in length, and neither
concisely states the legal reasons for her claim of reversible error nor
explains why such reasons support her claim. We interpret Plaintiff's point
relied on as raising two arguments: (1) the affidavits of Defendants' experts
were insufficient to support the grant of summary judgment, and (2) expert
testimony cannot be used to deprive Plaintiff of her right to proceed under
the doctrine of res ipsa loquitur. Despite the failure to comply with Rule
84.04, we prefer to decide the case on its merits and review the appeal
ex gratia. See Ward v. State Farm Life Ins. Co., 833 S.W.2d 484, 487 (Mo.banc
1997); Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo.banc 1997).
. We also acknowledge Plaintiff's contention in her second point relied
on that summary judgment should be reversed because Defendants' summary
judgment motions fail to comply with Rule 74.04(c)(1). Although we need
not address this argument given that we reverse on other grounds, we do
note that Rule 74.04 only requires that summary judgment motions state the
undisputed material facts, and does not prohibit such motions from stating
legal principles, conclusions, or otherwise. Thus, Defendants' motions are
not defective merely because they additionally state principles of law and
. See Hasemeier v. Smith, 371 S.W.2d 697, 701 (Mo.1962).
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