Wrongful death was wrong theory in deadly tumor suit

In what came as a surprise to both sides, the Missouri Supreme Court on Tuesday said a doctor alleged to have missed a man’s fatal brain tumor cannot be sued for his wrongful death — but he can be sued for negligence.

In a 4-3 decision, the court said the doctor’s alleged mistake did not cause Joseph Mickels’ death, so a wrongful death claim was inappropriate. But, the majority said, Mickels might have survived a little longer had the tumor been caught earlier, so Mickels’ personal representative could bring a negligence action for that lost time.

Mickels discovered in February 2009 that he had an aggressive brain tumor. Despite surgery, he died the following June. His survivors claimed in Marion County Circuit Court that a radiologist, Dr. Raman Danrad, failed to notice the tumor when reviewing an MRI study of Mickels’ brain the prior December. Had the deadly tumor been caught at that point, the suit alleged, Mickels might have survived an additional six months.

Neither party had proposed the Supreme Court’s outcome in briefs or at oral arguments. Instead, the argument was mainly over whether, under Missouri law, a wrongful death action can be brought when the alleged medical negligence accelerated a death from a terminal illness. The court’s majority made short work of the argument.

“Because Mr. Mickels’ death was not caused by Dr. Danrad’s negligence, appellants cannot sue for wrongful death …” Judge Paul C. Wilson wrote. “Every state supreme court to address this issue has reached the same conclusion.”

But, Wilson added, that didn’t mean no suit could be brought at all.

“Here, Dr. Danrad’s alleged negligence did not cause Mr. Mickels’ death, but it surely injured him by depriving him of the opportunity to delay his death for up to six months,” he wrote. That cause of action survives Mickels and can be brought by the representative of his estate, the court said.

In a dissent, Judge Richard Teitelman responded: “Left unsaid is the fact that what results from the loss of an opportunity to delay death is death.” Teitelman, joined by Judges Laura Denvir Stith and George W. Draper III, argued that Mickels’ death still resulted from the radiologist’s alleged oversight and could be pursued as a wrongful death action.

“There is nothing in the plain language of section 537.080 that compels the conclusion that a physician who negligently causes the premature death of a patient is immunized from wrongful death liability because, by a stroke of perverse luck, the patient also suffers from a terminal illness,” he wrote.

Wilson, however, said allowing a claim to hinge on the specific time and date of the person’s death would have had “serious and far-reaching consequences” that could “thwart meritorious claims in the future.”

“A defendant could argue that, even when his or her negligence caused the decedent’s death, some conduct of the decedent (or even a third person) either accelerated or delayed that death and, therefore, that conduct — not the defendant’s negligence — was the ‘but for’ cause of the decedent’s specific date and time of death,” the majority said.

Thomas K. Neill of Gray, Ritter & Graham in St. Louis, an attorney for the Mickles family, said he was pleased the case would proceed. He otherwise declined to comment, citing the ongoing litigation. An attorney for Danrad, John B. Morthland of Wasinger Parham in Hannibal, also declined to comment.

The case is Mickels et al. v. Danrad, SC94844.