Medical malpractice cases require an expert who is a doctor to testify that the defendant doctor failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants’ profession. In a recent case the Missouri court of appeals reversed the judgment and remanded the case for a new trial because the plaintiff’s expert was asked whether he believed that the defendant doctor was negligent but the attorney did not define the term negligence for the doctor in answering the question
The plaintiff who was a gospel singer was diagnosed with possible thyroid cancer. The defendant doctor recommended surgery and was going to remove the right thyroid gland and if it was positive for cancer remove the left thyroid as well. The surgeon removed the right thyroid as planned and the pathology indicated that the tumor was cancerous and the surgeon then claimed he performed a total thyroidectomy, removing the right and left lobes.
Following plaintiff’s surgery, he experienced complications that sent him to the hospital and almost caused his death, including a heart attack which caused damage to his heart. While in the hospital, blood tests were performed on the plaintiff and it was found that his thyroid levels were basically normal, did not decrease, and his THS levels did not increase as they should following a total thyroidectomy. While in the hospital an ultrasound was ordered, which showed that the plaintiff’s left thyroid lobe had been removed, but that his right thyroid gland was still present. The ultrasound ultimately showed the right thyroid gland to be present in its entirety, although the mass was no longer attached to it. It also showed that the nodules that existed in the right thyroid were still present, and that the amount of right thyroid tissue that was left prevented effective radioablation.
Plaintiff was referred to a thyroid surgeon who reviewed the post-surgery ultrasounds and determined that the plaintiff needed to have a second surgery to remove the right thyroid that had been left during the first surgery. Because the surgery was much more complicated and risky, the plaintiff was referred to a surgeon in St. Louis, Missouri, who recommended a second surgery to remove the right thyroid to remove the cancer risk, and so that he could undergo post-surgical radioablation.
The plaintiff underwent a second surgery during which 8.2 grams of thyroid tissue measuring four centimeters by two and a half centimeters by two centimeters was removed, which was basically the size of the right thyroid lobe. Subsequent testing of the thyroid tissue removed showed it was cancer free.
Following the second surgery, plaintiff’s voice was dramatically different, and he found that he had no endurance for singing, and that he had a significantly reduced vocal range for singing. He could no longer sing commercially, record music, or work as a full-time music minister.
The case was submitted to the jury and the jury returned a verdict for plaintiff for personal injuries against Defendant in the amount of $299,644.97. The trial court entered a judgment on the jury verdicts. Defendant appealed contending that the Plaintiff failed to elicit expert testimony describing and defining the meaning of the phrase “standard of care” so that the jury was properly informed of the meaning of the phrase and that the opinions offered by the experts were based on the correct standard. As a result, Defendant contends that Plaintiff failed to make a submissible case.
To make a submissible case, the plaintiff must present substantial evidence establishing each and every element of the claim. Id. The evidence is sufficient to make a submissible case if a reasonable probability that the defendant was negligent may be fairly inferred from it. Delisi v. St. Luke’s Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 173 (Mo.App. 1985). If, however, viewing the evidence in a light most favorable to the plaintiff, the question of negligence may only be determined by resort to conjecture and surmise, then the plaintiff has failed to make a submissible case. Id.
“To make a submissible case in a medical malpractice action, plaintiffs must prove that defendants failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants’ profession and that their negligent act or acts caused plaintiffs’ injury.” Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995). Stated another way, the plaintiff must prove (1) an act or omission of the defendant failed to meet the required standard of care; (2) the defendant was negligent in the performance of the act or omission; and (3) the act or omission caused the plaintiff’s injury. Montgomery v. South County Radiologists, Inc., 168 S.W.3d 685, 691 (Mo.App.2005).
As submitted to the jury, liability of Defendant was premised on whether he “failed to perform a total thyroidectomy” on plaintiff it was thereby negligent, and such negligence directly caused or contributed to cause damage to him. Negligence was defined for the jury in an instruction based on MAI 11.06 as “the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant’s profession.”
In reversing and remanding the case the court held that plaintiffs’ counsel did not provide the definition of the word “negligence” in the immediate context of the question. While [the expert] may have understood the definition of “negligence” which he was to apply in answering the question, the jury might well not have. The question was phrased in terms of “inadequately explored legal criteria.” Plaintiff suggested on appeal that the lack of legal criteria is solved by the fact that the court, in the jury instructions, defines the term negligence. This misses the point. Without a definition of negligence supplied in the context of the particular question and answer, the jury may not be able to know what the witness means by the word “negligence,” although it may later find out what the court means by that term.
The court of appeal held that because the plaintiff’s attorney asked the expert whether the defendant doctor was negligent without defining for the expert how that term is defined under Missouri law, the jury was left to speculate as to whether the testimony of plaintiff’s experts was based on the appropriate legal standard or on some other, inappropriate standard, and the reversed the judgment, but remanded the case for a new trial.
The lesson to be learned as a trial lawyer is don’t ask a medical expert questions that require legal conclusions, but ask them whether the defendant is negligent using the language from the Missouri Approved Jury Instructions as it defines the term negligence. This applies not only in the Medical malpractice field but in any case that uses the term negligence and you need an expert to establish that the defendant was negligent.
