Scheduled for 9 a.m. – SC98362
Lindsey Setzer and Michael Setzer v. SSM Health Care St. Louis
St. Louis County
Alleged evidentiary, instructional and other error in negligence and wrongful death suit
Lindsey Setzer was 14 weeks pregnant with symptoms of kidney stones when she went to the emergency room at an SSM Health Care St. Louis hospital. She was treated by its on-call obstetrician-gynecologist, Dr. Joseph Herrmann, who ultimately admitted her. Both the emergency room physician and Herrmann ordered multiple tests, which revealed kidney stones and confirmed the pregnancy. Herrmann ordered Setzer to be discharged in the evening with instructions to follow up with her regular obstetrician-gynecologist the next morning. Prior to discharge, Amy Farr, the unit’s clinical nurse manager, advised Herrmann Setzer had an elevated heart rate and temperature. Herrmann confirmed his discharge order. Setzer went home and awoke the following morning with additional pain. She then was admitted to a different hospital; was diagnosed with a urinary tract infection, kidney stones and sepsis; and lost the baby during a urologic procedure. She and her husband sued SSM and Herrmann. After discovery, they dismissed their claims against SSM without prejudice (allowing them to refile) and settled their claims against Herrmann, releasing him from any further liability. The Setzers then refiled suit against SSM, claiming medical negligence and wrongful death of the fetus. SSM asserted multiple affirmative defenses, including that the release barred the Setzers’ claims. At trial, Herrmann testified he was in a private solo practice with privileges at multiple hospitals and was available on-call for those facilities with no obstetrician-gynecologist on staff. He testified he had no contracts with SSM and received no compensation or benefits from SSM. The circuit court excluded SSM’s attempts to introduce Herrmann’s release from the Setzers into evidence. SSM moved for a directed verdict at the close of the Setzers’ evidence and the close of all evidence, arguing the Setzers’ release of Herrmann barred their vicarious liability claims against SSM and there was insufficient evidence to support a finding that Herrmann was SSM’s employee or agent. The circuit court overruled these motions. During the instruction conference, SSM objected to various instructions and verdict forms the Setzers proffered. The jury returned its verdict in favor of the Setzers. SSM moved for judgment notwithstanding the verdict as to the claims relating to Herrmann’s conduct and for new trial relating to Farr’s conduct. SSM also asked the circuit court to vacate the judgment as to elements included in the award but not supported by evidence or in conflict with the jury instructions. SSM also filed post-judgment motions asking the circuit court to apply credit for the settlement Herrmann paid to the Setzers and to allow SSM to make periodic payments of future damages pursuant to section 538.220, RSMo. The motions were overruled. SSM appeals, and the Setzers cross-appeal.

SSM Health Care’s appeal

This appeal presents a number of questions for this Court. One is whether the circuit court erred in excluding evidence of the Setzers’ release with Hermann. Related issues include whether the release would have answered a question of fact as to an affirmative defense and whether SSM preserved this issue for review. Another question involves whether the circuit court erred in allowing Setzer to testify about her tax returns rather than using an economic expert to offer evidence of pecuniary damages for her unborn child’s death. Related issues include whether the statutory presumption about the value of such damages was rebutted by SSM Health Care’s economic expert’s testimony and whether SSM preserved this issue for review. Another question involves whether the circuit court erred in not removing a juror and seating an alternate after the juror, before the evidence closed, passed to the bailiff a written question about kidney stones. Related issues include whether the juror’s question was improper or based on sources from outside the trial, whether he discussed his question with other jurors, and whether the juror remaining seated resulted in an unfair trial. Other questions involve whether the circuit court erred in instructing the jury and whether SSM preserved all its instructional error claims. As to the negligence instructions, related issues include whether they permitted damages to be awarded for Herrmann’s conduct based on an agency rather than employment relationship and, if so, whether they violated section 538.210, RSMo; whether evidence regarding Farr’s conduct supported them; and whether the instructions and verdict form’s inclusion of future economic damages was defined by the instructions or supported by the evidence. As to the wrongful death instruction and verdict form, related issues include whether they stated the proper measure of damages in a wrongful death action or whether they improperly permitted an award for additional items. Another question involves whether the circuit court should have sustained SSM’s motion for judgment notwithstanding the verdict as to Herrmann’s conduct. Related issues include whether the Setzers fully released Hermann from liability; whether SSM had standing to enforce the release’s terms; whether the release shielded SSM from liability; whether there was evidence SSM employed or otherwise controlled Herrmann; and whether SSM controlled what doctors treated Setzer at its hospital. Further questions involve whether the circuit court erred in failing to reduce the judgment by the amount of the Setzers’ settlement with Herrmann or modify its judgment to let SSM to make periodic payments toward future damages.

Setzers’ cross-appeal

This cross-appeal presents one question for this Court – whether the circuit court erred in overruling the Setzers’ motion to amend the judgment to include the presumptive annual pecuniary loss for the wrongful death of a minor as provided in section 537.090, RSMo. A related issue is whether SSM’s expert properly rebutted the presumption and whether the courts can add to the award.

SC98362_SSM_Health_Care_St._Louis_first_brief 
SC98362_Setzers_first_brief
SC98362_SSM_Health_Care_St._Louis_second_brief  

SC98362_Setzers_second_brief  
 


Scheduled for 10 a.m. – SC98416
State ex rel. Matthew Becker, Franklin County Prosecuting Attorney v. The Honorable Gael D. Wood
Franklin County
Compelling prosecutor to testify in response to allegations regarding prosecution
In June 2015, a Franklin County grand jury indicted Aaron Hodges on counts of first-degree murder and armed criminal action for allegedly stabbing two mentally disabled individuals to death without provocation. The prosecutor at the time never waived the death penalty. Over the next several years, Hodges considered waiving his right to a jury trial as the parties negotiated possible pleas. In June 2018, Hodge’s attorney filed a notice that he intended to proceed to trial on the defense of not guilty by reason of mental disease or defect, and the prosecutor withdrew all previous plea offers. Six months later, Matthew Becker assumed office as the county’s new prosecuting attorney and subsequently filed notice of intent to seek the death penalty. Hodges moved to strike the state’s notice, alleging the notice’s timing violated section 565.005, RSMo, and his constitutional rights to due process, a fair trial, a speedy trial and effective assistance of counsel and constituted evidence the state’s motive was to punish Hodges vindictively for proceeding to trial. Hodges endorsed opposing counsel as a witness in the hearing regarding his motion. The state moved to strike the endorsement. Ultimately, the circuit court ordered both the prosecutor and the assistant prosecutor to appear at the motion hearing and provide sworn testimony. The prosecutor asks this Court to make permanent its preliminary writ prohibiting the circuit court from enforcing the order.

This case presents several questions for this Court. One is whether, as a matter of law, Hodges can prevail on his claims. A related issue involves whether the prosecutor has issued new or enhanced charges to support a finding of prosecutorial vindictiveness or whether enhancing or augmenting the range of punishment is sufficient. Another question is whether the testimony Hodges is seeking would violate the work-product doctrine by involving the prosecutor’s rationale for his legal decisionmaking or whether the circuit court’s order is sufficient to protect work product and trial strategy. An additional question is whether Hodges has established the presumption of vindictiveness the circuit court is requiring the prosecutor to rebut or whether such a presumption can be established before the circuit court makes findings of fact and conclusions of law regarding Hodge’s motion to strike the state’s notice.

SC98416_prosecuting_attorney_brief 
SC98416_Hodges_brief 

SC98416_letter_correcting_Hodges_brief 

SC98416_prosecuting_attorney_reply_brief 

Scheduled for 11 a.m. – SC98327
John Henry Rhoden and Dorothy Jean Winfield v. Missouri Delta Medical Center 
Scott County 
Alleged evidentiary, instructional and other error in wrongful death suit
Dr. Linza Killion, a urological surgeon, was treating Roosevelt Rhoden for an enlarged prostate, ultimately recommending he either undergo prostate surgery (a transurethral prostatectomy, or TURP) to lessen restrictions on his urethra or rely on a catheter. Rhoden chose the surgery, which Killion performed at Missouri Delta Medical Center in Sikeston in October 2012 along with a TUIBN (transurethral incision of the bladder neck) procedure to allow easier placement of a catheter. Shortly after the surgery, Rhoden began complaining of abdominal pain, then experienced renal failure and difficulty breathing. He also pulled on his catheter, requiring a nurse to reinsert it. Killion ordered imaging studies, which showed free air in Rhoden’s abdomen and retroperitoneal area, which usually indicates a perforation of the gastrointestinal tract. Killion requested a surgical consultation. Dr. Kevin Rankin, a general surgeon, performed an exploratory laparotomy, examining Rhoden’s entire gastrointestinal tract. He identified what he described as fatty tissue in the sigmoid colon but did not observe a perforation, a misplaced catheter or any irrigation fluid in Rhoden’s abdomen, concluding a ruptured diverticulum had caused the free air but sealed before the laparotomy. Rhoden then developed sepsis as well as respiratory and kidney complications. Two weeks after the prostate surgery, medical center nurses removed and replaced the original catheter. Rhoden subsequently was transferred to Saint Louis University Hospital, where urologists removed and replaced the second catheter, drained his bladder and drained fluid that had collected in his abdomen. He improved and was discharged to Landmark Hospital in Cape Girardeau, where the catheter was removed. Rhoden suffered a stroke while there and was transferred to a skilled nursing facility. During the next 10 months, he was transferred between hospitals and nursing facilities and ultimately into palliative care. Rhoden died in October 2013, approximately a year after the prostate surgery.

Rhoden’s surviving family members filed a wrongful death lawsuit against Missouri Delta Medical Center, alleging Killion and Rankin – both medical center employees – negligently cared for Rhoden, causing his death. The family presented evidence from two experts that Killion misplaced the catheter outside Rhoden’s bladder during the prostate surgery, failed to recognize his error or order testing to determine whether the catheter was placed properly, failed to identify the source of the free air when Rankin did not find a perforated viscous during the laparotomy, failed to order testing as Rhoden’s post-operative condition declined, should not have told a nephrologist there was no urine leak without conducting testing, and should not have performed the TUIBN procedure. The family also presented expert evidence that Rankin failed to obtain additional diagnostic testing before surgery, failed to locate the source of the free air and failed to perform additional testing to find the source of the air. The experts testified Rhoden’s death was caused by Killion’s misplacement of the catheter and failure to discover the misplacement. The medical center presented evidence that both prostate procedures were appropriate, Killion properly placed the catheter within Rhoden’s bladder during the surgery, the catheter was working properly during the post-operative period, the finding of free air on the X-ray required emergent exploratory surgery without the need for additional pre-surgical testing, and Rankin’s laparotomy and post-surgical care met the standard of care. The medical center’s experts testified the catheter must have been misplaced when the nurses placed a new catheter more than two weeks after the prostate surgery but the misplaced catheter did not cause or contribute to cause Rhoden’s death, which one expert testified was caused by Rhoden’s subsequent stroke and resulting problems swallowing, exacerbated by Rhoden’s underlying medical conditions that existed prior to and were independent of the prostate surgery. The jury found in the family’s favor, awarding nearly $270,000 in past medical damages, $300,000 in past noneconomic damages and $300,000 in additional damages for aggravating circumstances. The circuit court entered judgment accordingly and overruled the medical center’s subsequent motion for judgment notwithstanding the verdict or new trial. The medical center appeals.

This case presents a number of questions for this Court. One involves whether the family made a submissible case that Killion’s or Rankin’s conduct caused or contributed to Rhoden’s death or whether subsequent intervening circumstances caused his death a year later. Other questions involve whether the family made a submissible case for additional damages for aggravating circumstances and, if so, whether the circuit court properly instructed the jury regarding such damages. Related issues include whether the family presented evidence that the healthcare providers demonstrated willful, wanton or malicious conduct sufficient for such damages to be awarded under section 538.210, RSMo, and whether the instruction misstated the standard for awarding such damages as “complete indifference to or conscious disregard for the safety of others.” Another question is whether the circuit court should have excluded portions of the depositions of one of the family’s experts. Related issues include whether the excluded testimony would have shown the expert did not know whether Rhoden would have died when he did had he not undergone the prostate surgery and whether such testimony was necessary to establish Rhoden would not have died but for the medical center’s negligence. An additional question involves whether a different expert for the family had practiced actively within five years before the trial or otherwise was qualified to testify and whether his testimony prejudiced the medical center. Another question is whether the circuit court should have allowed the family to use at trial deposition excerpts from an expert the medical center retained but withdrew as a witness before trial. Related issues include whether one party can disclose to the jury that an opposing party retained but withdrew an expert, whether the deposition testimony was admissible, whether the family improperly implied an adverse inference from the medical center not calling the withdrawn expert as a witness at trial, and whether the testimony prejudiced the medical center. Further questions involve whether the medical center waived its claims or otherwise preserved them for appeal.

The Missouri Organization of Defense Lawyers and Missouri Hospital Association, which filed a brief as friends of the Court, argue judicial interpretations of section 538.210 governing punitive damages cast aside the legislature’s intent in including this provision among its early tort reform initiatives to curb mounting medical malpractice insurance premiums for healthcare providers.

SC98327_medical_center_brief 
SC98327_Rhoden_and_Winfield_brief 
SC98327_medical_center_reply_brief 
 
SC98327_MODL_and_Missouri_Hospital_Association_amici_brief