In its Opinion filed on February 26, 2019, the Missouri Court of Appeals Eastern District Division One (“Missouri Appellate Court”) affirmed a $9.4 million orthopedic surgery medical malpractice verdict. The Missouri medical malpractice jury had awarded the plaintiff $4,451,875 in compensatory damages and $5,000,000 in punitive damages on the plaintiff’s claims for medical malpractice arising out of medical care provided to the plaintiff by the orthopedic surgeon employed by the defendant orthopedic practice.
The Underlying Facts
The plaintiff had right hip surgery in January 2013 to replace components that were installed into his right hip during his original right hip surgery in 2009 that were subject to a recall. A few months later, the plaintiff started to experience pain in his left groin area. In November 2013, an orthopedic surgeon employed by the defendant orthopedic practice performed a successful total hip replacement surgery on the plaintiff’s left hip. On his way to a postoperative follow-up appointment on November 21, 2013, the plaintiff stopped at a McDonald’s restaurant where he slipped on a wet floor and fell against a wall. Thereafter, he was referred to a physical medicine and rehabilitation physician who worked for the defendant orthopedic practice.
By March 2014, the plaintiff was doing well on the right hip but was still suffering from persistent but improving groin pain on the right side and was referred to the defendant orthopedic surgeon. On April 16, 2014, the defendant orthopedic surgeon performed what he testified was an “exploratory” surgery on the plaintiff’s right hip. However, the defendant orthopedic surgeon said prior to the surgery he actually intended to replace the polyethylene liner from the plaintiff’s acetabular component.
During the surgery, the defendant orthopedic surgeon employed a power corkscrew device to remove the polyethylene liner from the acetabular cup, which was not the recommended technique to perform this task. After the liner was removed, the defendant orthopedic suregon could not get a new one to lock into the cup. Therefore, he was forced to remove the entire acetabular component from the plaintiff’s right hip and install a new one. During this process, he removed a substantial amount of attached pelvic bone and fractured the plaintiff’s pelvis.
The plaintiff was not informed of the pelvic fracture prior to his discharge from the hospital. In the months following his surgery, the plaintiff was ordered to bear weight on his right leg and to undergo physical therapy. The plaintiff had significant difficulty with his postoperative instructions because he was experiencing pain, clicking, and loosening of the right hip implant while standing or walking. A CT scan revealed that the plaintiff’s acetabular component was dislocated.
On December 23, 2014, another physician informed the plaintiff there was a problem with his April 16, 2014 surgery and that the plaintiff’s right leg was not attached (the acetabular component was malpositioned and not fixed in bone). A subsequent surgery to repair the plaintiff’s right hip was unsuccessful. As of the time of the Missouri medical malpractice jury trial in September 2017, the plaintiff’s right hip implant was unattached to his pelvis, he could not voluntarily move his right leg, he could not walk without crutches, and he experienced significant limitations in his day-to-day activities.
During the Missouri medical malpractice jury trial, the defendant objected to the plaintiff’s presentation of evidence related to the plaintiff’s claim for negligent supervision, retention, and referral against the defendant orthopedic practice. The plaintiff maintained that evidence of the orthopedic surgeon’s qualifications and treatment of other patients was relevant and permissible because he was pursuing punitive damages on that claim. The trial court overruled the defendant’s objections, and the plaintiff presented evidence showing, (1) the defendant orthopedic surgeon failed his board certification examination on three occasions; (2) when the defendant orthopedic surgeon was trying to obtain his license to practice medicine in Missouri, he had difficulty getting a favorable recommendation from the California institution where he completed his residency; (3) the defendant orthopedic surgeon’s residency director from the California institution wrote a letter stating the defendant orthopedic surgeon’s overall performance was not acceptable; and (4) in late 2014, the defendant orthopedic practice ended its professional relationship with the defendant orthopedic surgeon due to his poor treatment of other surgical patients.
The Missouri Appellate Court stated that as a general rule, a plaintiff is not allowed to pursue claims against an employer asserting alternative theories of liability in cases where the employer has admitted to respondeat superior liability for its employee’s negligence. However, this rule is subject to an exception when the plaintiff brings a claim for punitive damages against the employer (if an employer’s hiring, training, supervision, or entrustment practices can be characterized as demonstrating complete indifference or a conscious disregard for the safety of others, then the plaintiff would be required to present additional evidence, above and beyond demonstrating the employee’s negligence, to support a claim for punitive damages).
With regard to the defendant’s argument that the trial court erred in admitting the evidence about the defendant orthopedic surgeon’s qualifications and treatment of other patients, the Missouri Appellate Court stated that the evidence was admitted for a non-prejudicial purpose as it was both relevant and material to support the plaintiff’s claim of punitive damages on his count for negligent supervision, retention, and referral.
With regard to the defendant orthopedic practice’s argument that the trial court should have declared a mistrial because the evidence relating to the defendant orthopedic surgeon’s qualifications and treatment of other patients “was irrelevant and highly prejudicial” because after that evidence was admitted, the trial court determined it would not submit the plaintiff’s punitive damages claim on Count VI to the jury, the Missouri Appellate Court stated that the defendant failed to adequately explain how it was prejudiced by the evidence (“Defendant has failed to prove the trial court’s actions of denying Defendant’s motions for mistrial and new trial resulted in a glaring or substantial injustice, especially in light of its failure to request a curative instruction”).
Missouri Law Regarding Punitive Damages In Medical Malpractice Cases
In pursuing punitive damages under section 538.210.5 RSMo Supp. 2006 against a healthcare provider in a medical malpractice case, a plaintiff must present clear and convincing evidence showing: (1) the healthcare provider engaged in outrageous conduct; and (2) such conduct was performed with a willful, wanton, or malicious culpable mental state. For purposes of punitive damages, acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious disregard for the rights or safety of others.
In the case it was deciding, the Missouri Appellate Court stated “the evidence showed the April 16, 2014 surgery was not necessary or required under the surrounding circumstances and in light of Plaintiff’s then existing physical condition. We find the foregoing evidence constituted substantial evidence from which the jury could have found [the defendant orthopedic surgeon] performed unnecessary right hip surgery on April 16, 2014 with a complete indifference to or in conscious disregard for Plaintiff’s safety … the jury could have found [the defendant orthopedic surgeon] damaged the liner and cup and removed excessive bone during the right hip surgery on April 16, 2014 with a complete indifference to or in conscious disregard for Plaintiff’s safety … the jury could have found [the defendant orthopedic surgeon] failed to inform Plaintiff of fractures which occurred during the April 16, 2014 surgery with a complete indifference to or in conscious disregard for Plaintiff’s safety … the jury could have found [the defendant orthopedic surgeon] delayed treatment of the fractures which occurred during the April 16, 2014 surgery with a complete indifference to or in conscious disregard for Plaintiff’s safety … the jury could have found [the defendant orthopedic surgeon] instructed Plaintiff to participate in physical therapy and to put weight on the right leg despite persistent pain after the April 16, 2014 surgery with a complete indifference to or in conscious disregard for Plaintiff’s safety.”
Source Bell v. Redjal, ED106320.
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