Supreme Court weighs verdicts in medical malpractice cases

The Missouri Supreme Court heard challenges on Sept. 2 to two significant medical malpractice wrongful-death verdicts awarded in 2018.

The court heard arguments regarding a $1.36 million verdict in St. Louis County for a woman who miscarried after doctors allegedly failed to treat her for an infection. Later in the morning, the court also entertained a challenge to an $870,000 verdict in Scott County for the family of a man who died of complications from prostate surgery.

The first argument involved a host of issues, including a dispute about whether the award must be reduced by the amount of a prior settlement.

Lindsey Setzer brought a wrongful-death claim against SSM Health Care alleging that she had a urinary tract infection that went undiagnosed and untreated. She was 14 weeks pregnant when she went to the St. Clare Hospital in Fenton with vomiting and abdominal pain. Hours after she was discharged, she went to the emergency room at a different hospital as her pain worsened. She fell into a coma as a result of sepsis and lost her baby.

The verdict included about $995,000 in damages, plus an additional $364,000 to her husband. Prior to trial the Setzers had reached a confidential settlement with Dr. Joseph G. Herrmann, one of the treating doctors. Last year, the Missouri Court of Appeals Eastern District affirmed the verdict but said the prior settlement had to be subtracted from the judgment against SSM.

At the argument Sept. 2, Ken Bean of Sandberg Phoenix & von Gontard in St. Louis argued that SSM was a beneficiary of the settlement because “money was paid to buy off the claim for all of the conduct of Dr. Herrmann.” But the judges questioned if SSM actually was a third-party beneficiary to the settlement with standing to make that argument.

“Otherwise you’re just an incidental beneficiary and can’t enforce it,” Judge Laura Denvir Stith said.

Gregory Fenlon of St. Louis Lawyers Group, who represented the Setzers, said his clients “did not believe they were giving away any right that they had” in signing the settlement’s release. But Judge Zel M. Fischer asked, if it was unclear what the parties intended, “then doesn’t that necessarily put the issue to a jury question?”

The morning’s second case involved the death of Roosevelt Rhoden, who reported abdominal pain shortly after undergoing prostate surgery at Missouri Delta Medical Center in Sikeston. Doctors had missed that Rhoden’s catheter was not inside his bladder and was pumping urine into his body. Rhoden suffered acute kidney failure and sepsis and died at age 79 after nearly a year in long-term care.

The jury’s verdict included $300,000 in aggravating-circumstances damages, based on allegations that the treating doctors failed to order tests despite warnings from other medical personnel that something had gone wrong during surgery. Paul Lane of Dowd & Dowd argued that there was “more than sufficient evidence” to recover such damages.

But Joseph Blanton Jr. of Blanton, Nickell, Collins, Douglas & Hanschen in Sikeston, an attorney for the hospital, said such damages are essentially a form of punitive damages and are almost never awarded in medical malpractice cases.

“There’s never been a case like this, and in all honesty if punitive or aggravating-circumstances can be submitted on facts like this, then they can be submitted really in any case,” he said.

The case highlights a potential mismatch in state law. Medical malpractice statutes allow aggravating-circumstances damages in cases involving “willful, wanton or malicious misconduct.” Missouri’s official jury instructions use the phrase “complete indifference to or conscious disregard for the safety of others.”

Prior cases have held the two phrases are essentially synonymous. Stith noted that “wanton” indicates negligence that is “so reckless that it’s the equivalent of willfulness.”

“That’s been our law, as far as I can tell, for 100 years,” she said.

But Blanton insisted there was a difference.

“We shouldn’t have to play these philological language games,” he said. “The legislature has indicated what the proper standard is.”

The cases are Setzer v. SSM Health Care St. Louis, SC98362, and Rhoden v. Missouri Delta Medical Center, SC98327.