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State Law

: Showmeblawgs

By stan_sipple

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Missouri Court of Appeals Eastern District allows defendant anesthesiologist to show video of plaintiff's brain surgery during closing arguments. Appeals court rules that although the the trial court had insufficient evidence to blame the surgeon for operating on the plaintiff's aneurysm without proper MRI tests, the error was harmless because the jury found zero percent fault against the anesthesiologist . Joseph Powderly and Alice Powderly, Plaintiff/Appellant, v. South County Anesthesia Associates, LTD. and George Romkema, M.D., Defendant/Respondent: ED88273we conclude the parties' pre-trial discussion regarding the use of the videotape during expert testimony did not rise to the level of a stipulation or an objection that may have restricted admission of the videotape into evidence. The record is clear that both parties offered the entire videotape into evidence without reference to any limitations. Neither party objected to its admission or suggested any limitation on the videotape's admission into evidence. The trial court admitted the entire videotape and thus, the videotape was evidence in the record available in its entirety to the jury.(FN1) The trial court did not abuse its discretion in permitting counsel to review the admissible evidence in closing argument. The trial court did not err in overruling Plaintiffs' objection and allowing Defendants to play the videotape throughout Defendants' closing argument. As to Defendants' references to the bleeding displayed in the videotape, we conclude these remarks fell within counsel's wide latitude of suggesting inferences or referring to the evidence because evidence of Patient's bleeding was admitted when Defendants' expert, Dr. Chicoine, testified as to the significance of the bleeding.We agree that there was insufficient evidence to support Defendants' claim that Dr. Albanna breached the standard of care required of him as defined under the third disjunctive of Instruction No. 7 as submitted to the jury, i.e., that Dr. Albanna performed surgery without an optimal MRI. Although it is possible that the jury relied upon the improper third disjunctive in determining Dr. Albanna's negligence under Instruction No. 7, this Court has neither the responsibility nor the ability to probe beyond the jury's written verdict in an attempt to discern the basis for their decision. This reality underscores the importance of the requirement that each disjunctive contained within the jury instructions be supported by substantial evidence rather than a mere scintilla of evidence, or speculative deductions or conclusions. See Marion, 199 S.W.3d at 894. The trial court erred in submitting Instruction No. 7 to the jury.

Although we agree with Plaintiffs' argument that the third disjunctive of Instruction No. 7 was not supported by substantial evidence, we also must agree with Defendants that such error was harmless and did not prejudice the Plaintiff. Defendants posit that any error in the verdict director against the settling co-defendant Dr. Albanna is harmless because the jury found Anesthesiologist 0% negligent in Jury Instruction No. 6.

Full post as published by Showmeblawgs on February 18, 2008 (boomark / email).