JAMES J. GRECO, as Special Administrator of the Estate of Tamara Kay Greco, and JAMES J. GRECO, as Legal Guardian and Next Friend of Taylor Rose Marie Greco, Heather N. McKaig, and Nicholas McKaig, Minors, Plaintiffs-Appellants,
ORTHOPEDIC & SPORTS MEDICINE CLINIC, P.C., and BRUCE T. VEST, Defendants-Appellees
Appeal from the Circuit Court of Madison County. No. 11-L-140. Honorable A. A. Matoesian, Judge, presiding.
For Appellants: David Wm. Horan, Gregory Fenlon, St. Louis, MO.
For Appellees: Philip L. Willman, Teresa M. Young, Samuel John Vincent III, Brown & James, P.C., St. Louis, MO.
PRESIDING JUSTICE CATES delivered the judgment of the court, with opinion. Honorable Richard P. Goldenhersh, J., and Honorable S. Gene Schwarm, J., Concur.
[¶1] The plaintiffs, James J. Greco, as special administrator of the estate of Tamara Kay Greco, and James J. Greco, as legal guardian and next friend of Taylor Rose Marie Greco, Heather N. McKaig, and Nicholas McKaig, minors, filed a wrongful death action under a medical negligence theory in the circuit court of Madison County against the defendants, Orthopedic & Sports Medicine Clinic, P.C., and Bruce T. Vest, M.D. Following a trial, the jury returned verdicts in favor of the defendants. On appeal, the plaintiffs contend that the trial court's erroneous rulings on discovery matters and evidentiary issues were unduly prejudicial and deprived them of a fair trial. For reasons that follow, we reverse the judgment and remand this case for a new trial.
[¶2] Tamara Kay Greco (the decedent) suffered an injury to her left ankle when she rolled it while bowling on April 29, 2004. Her husband, James, drove her to St. Anthony's Hospital, and she was evaluated in the emergency room that evening. The attending physician noted edema and swelling in the decedent's left ankle, and he ordered X-rays. The radiologist's report states that there is no evidence of a fracture or dislocation in the foot or ankle. The decedent was diagnosed with a severe sprain of the left ankle, and her ankle was wrapped with an elastic bandage. She was instructed to keep her foot elevated. The decedent was provided with crutches and a prescription for Vicodin. She was referred to Dr. Vest at the Orthopedic & Sports Medicine Clinic (the Clinic) for further evaluation and treatment.
[¶3] The decedent presented to the Clinic the next day, April 30, 2004, and she was evaluated by Doug Spafford, a physician's assistant (PA) employed by the Clinic. The decedent gave a history of twisting her left ankle while bowling the previous evening. She reported that she had prior fractures and sprains of the left ankle. She also reported that she was on birth control pills and that she had been taking Vicodin, as prescribed by the emergency room doctor. PA Spafford examined the left ankle and noted moderate swelling and tenderness. He viewed X-rays that the decedent had brought with her and saw no acute fracture or dislocation of the foot or ankle. PA Spafford diagnosed a sprained left ankle. He prescribed Ultracet for pain, and he directed the decedent to wear an equalizer fracture brace (commonly called a walking boot) and to use crutches. During the trial, PA Spafford testified that he instructed the decedent, during the first visit, to remove the brace and exercise the ankle. Paula Steiner, a medical assistant who was employed at the Clinic during this time, testified that she gave the decedent instructions on exercising the ankle while she fitted the decedent with the equalizer brace. There is no documentation of these instructions in the entry of April 30, 2004. A follow-up appointment was scheduled for May 14, 2004, and the decedent was instructed to call if she had any difficulties before the next appointment.
[¶4] Later that day, the decedent phoned the Clinic and reported that she was experiencing some tingling in her toes. She was instructed to loosen the straps on the brace. Dr. Vest did not see the decedent during the office visit of April 30, 2004, but he did make an entry in her patient record. Dr. Vest noted that he viewed the X-rays that had been taken in the emergency room and that he saw no definite fracture or dislocation in the ankle. He also noted that the decedent had been instructed to use an equalizer brace and to elevate her leg to control swelling.
[¶5] The decedent returned to the Clinic on May 5, 2004, because she was having pain in her left ankle and foot, and a burning and numb feeling in her toes. Dr. Vest examined the decedent's left foot and ankle, and noted moderate soft-tissue swelling, some bruising over the lateral aspect of the heel, and tenderness. He also noted that sensation was grossly intact, that there was good capillary refill, and that Homan's sign and the cord test were negative. Dr. Vest testified that he had considered a deep vein thrombosis (DVT) in his differential diagnoses, but ruled it out based on his findings during the examination and the decedent's medical history. Having ruled out a DVT, he did not order an ultrasound and he did not institute anticoagulant therapy. Dr. Vest diagnosed a severe sprain of the left ankle. He noted that the decedent's complaints could be related to softt-issue swelling that was irritating the subcutaneous nerves. Dr. Vest instructed the decedent to continue to use ice and elevation to control the swelling, and to use the equalizer brace and crutches as needed to assist her with ambulation. He noted that she " will be weight-bearing as tolerated." A follow-up evaluation was scheduled for May 19, 2004.
[¶6] By all accounts, the decedent's activity level was restricted during the weekend following the April 29, 2004, injury. She moved about to shower and to use the bathroom, but otherwise was in a recliner or in bed. There is some dispute about the decedent's activity level between Monday, May 3, 2004, and Thursday, May 6, 2004. Her aunt, Anne Hermann, testified that during the week following the injury, she went to the decedent's home to help her with the baby. Anne testified that the decedent was not very active through Wednesday May 5, 2004, and that she did not return to work until Thursday, May 6, 2004. She recalled that the decedent drove herself to the doctor on May 5, 2004. The decedent's sister, Kirsten Dover, initially testified that the decedent worked every day during the week following her injury, but when pressed, she could only state with certainty that the decedent went to work on Thursday and Friday. Nicole Nixon, a coworker, testified that she thought the decedent was in the office during the entire week of May 3, 2004. Steve Selby, an attorney for whom the decedent worked, testified that the decedent was at work at some point during the week of May 3, 2004, but he could only state with certainty that she worked on Friday, May 7, 2004. Selby recalled that he was walking in the office parking lot after work that day and discovered the decedent, lying on the ground near her car, lapsing in and out of consciousness. He called 9-1-1.
[¶7] An ambulance responded and the decedent was transported to St. Anthony's Hospital. Shortly after arrival, she became agitated and stated that she could not breathe. She was pale, sweating, and thrashing. The decedent's husband, James, and her sister, Kirsten, were at her bedside, and they both saw her eyes roll back in her head. The decedent went into cardiopulmonary arrest. The hospital staff attempted to resuscitate her for more than an hour, but she did not respond. The decedent was pronounced dead at 6:13 p.m. on May 7, 2004. An autopsy was performed by Dr. Raj Nanduri. Dr. Nanduri determined that the decedent died as a result of bilateral pulmonary thromboemboli (blood clots blocking arteries in the lungs), secondary to immobility of the left foot. At the time of her death, the decedent was 36 years old. She is survived by her husband, James, their 11-month-old child, Taylor Rose Marie, and two children, 12-year-old Nicholas and 10-year-old Heather, from a previous marriage.
[¶8] The plaintiffs filed a wrongful death action under a theory of medical negligence against the defendants in 2006 and voluntarily dismissed it in 2010. The case at bar was filed in February 2011, within one year of the dismissal of the prior action. In this case, the plaintiffs allege that the defendants' negligence in evaluating and treating the decedent's ankle injury on April 30, 2004, and May 5, 2004, was a proximate cause of the pulmonary emboli that resulted in her death. The case was tried before a jury. Both sides presented medical experts, and the jury was called upon to consider the conflicting medical opinions and to judge the credibility of the experts who offered them. An overview of the expert testimony follows. A more detailed account of the testimony will be provided as the issues warrant.
[¶9] The plaintiffs presented three expert witnesses. Jeffrey Nicholson, a physician's assistant, opined that PA Spafford and the Clinic deviated from the standard of care on April 30, 2004, in that they failed to instruct the decedent to remove the equalizer brace and exercise her foot and ankle several times a day; failed to inform the decedent that she was at risk for developing a DVT; failed to inform the decedent of the warning signs of a DVT; and failed to document the instructions given to the decedent during the visit.
[¶10] Dr. Steven Berkowitz, an orthopedist, testified the decedent had four recognized risk factors for the development of a DVT, when she was evaluated by Dr. Vest on May 5, 2004. He identified her weight, use of estrogen-based birth control pills, the recent trauma to her ankle, and immobility as her risk factors. Dr. Berkowitz noted that the decedent presented on May 5, 2004, with complaints of increased pain in her ankle and numbness and burning in her toes. Dr. Berkowitz testified that Dr. Vest should have had a substantial suspicion that the decedent had a DVT based on her risk factors and the symptoms she presented ...