CYNTHIA L. WATERS,
Appellant,
v.
MERITAS HEALTH CORPORATION D/B/A NORTHLAND CARDIOLOGY AND JAMES H. MITCHELL, M.D.,
Respondents. ) ) ) ) ) ) ) ) ) ) )
WD77843
OPINION FILED: October 13, 2015
Appeal from the Circuit Court of Clay County, Missouri The Honorable Janet L. Sutton, Judge
Before Division Four: Alok Ahuja, Chief Judge, Presiding, Gary D. Witt, Judge and S. Margene Burnett, Special Judge
This appeal arises out of an action brought by Appellant, Cynthia Waters ("Waters"), in which Waters sought damages arising out of the treatment of her deceased husband Robert Waters ("Robert") 1 by Respondents Meritas Health Corporation d/b/a Northland Cardiology ("Meritas") and Dr. James H. Mitchell ("Dr. Mitchell" and collectively with Meritas, the "Respondents"). Waters alleged that Respondents were negligent in Robert's care and thereby caused his death. After a jury trial that resulted in
1 Because Appellant Cynthia Waters and the deceased Robert Waters share the same last name, we will refer to Robert Waters as "Robert" and Cynthia Waters as "Waters." No familiarity or disrespect is intended.
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a verdict in favor of Respondents, Waters now brings two points on appeal. For the reasons explained herein, we affirm. FACTUAL AND PROCEDURAL HISTORY Medical Diagnosis and Treatment On the evening of August 30, 2007, Robert experienced chest pain and proceeded to the Emergency Room at North Kansas City Hospital ("North Kansas City") with his wife. Tests conducted in the Emergency Room determined that no cardiac event had taken place, but Robert was admitted for further observation and tests the following day. On August 31, 2007, Dr. Greg Cummings ("Dr. Cummings"), a hospitalist at North Kansas City, examined Robert and determined he had suffered a cardiac event during the night. Robert's case was assigned to Dr. Steven Starr ("Dr. Starr"), an invasive, non- interventional cardiologist, who performed an angiography to determine the condition of Robert's heart. Dr. Starr found that Robert had multiple blockages in his heart including plaques that blocked: • 20% of the left main artery; • 30% of the proximal and mid portions of the left anterior descending artery ("LAD"); • 70% of the apex of the LAD; • 60% of the proximal right coronary artery ("RCA"); • 40% of the mid portion of the RCA; • 30% of the posterior lateral and posterior descending arteries in the RCA;
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• 90% of the circumflex artery, extending into the second obtuse marginal branch. Dr. Starr noted that Robert had mild problems in his left main artery and his left anterior descending artery. In addition, Dr. Starr noted a stenosis, meaning a narrowing, of Robert's circumflex artery, which is the artery that is the major branch providing blood to the back of the heart. Dr. Starr determined the blockage should be addressed and called Dr. Mitchell to review the case and decide whether it was necessary to proceed with an intervention. Dr. Mitchell's Intervention Dr. Mitchell arrived in the Cath Lab to review Robert's films and took over as attending physician at 2:48 p.m. Dr. Mitchell decided to proceed with an angioplasty procedure, which is a procedure whereby wires and catheters are inserted into a patient's arterial system and, using stents and balloons, opens up the arteries to increase blood flow to the heart. Using x-ray dye and viewing the heart through an x-ray monitor, the doctor is able to identify and target specific areas of the heart where blockages appear. Dr. Mitchell intended to place stents at the bifurcation of the occlusion (blockage) in the circumflex and second obtuse marginal arteries inflating them simultaneously using a "kissing balloon technique." The first wire was placed past the blockage deep into the lumen of the second obtuse marginal at approximately 3:02 p.m. Dr. Mitchell then placed the second wire and attempted to advance it past the blockage into the distal end of the circumflex artery but was unsuccessful. Dr. Mitchell then made two additional attempts with two other wires but was equally unsuccessful. At approximately 3:05 p.m.,
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Dr. Mitchell created a dissection plane in Robert's circumflex artery during one of his attempts to get the wire past the blockage in the distal circumflex. A dissection plane is an injury to the artery wall which obstructs blood flow through the vessel. The dissection became visible on the cineangiogram film at 3:10 p.m. The parties disagree over whether Dr. Mitchell recognized the dissection in the circumflex artery at 3:10 p.m. Waters identifies early deposition testimony by Dr. Mitchell that indicates Dr. Mitchell did not believe the dissection to the circumflex artery occurred at 3:10 p.m. during the procedure but rather occurred much later following CPR. Waters also points to Dr. Mitchell's handwritten notes and typed procedure notes, which do not mention a dissection in the circumflex artery, as evidence of Dr. Mitchell's alleged failure to timely recognize the dissection. Dr. Mitchell admits that, early in his first deposition, he was mistaken as to the time and cause of the dissection. He states that once he was allowed to review the films to refresh his memory, he recalled that he had identified the dissection in the circumflex artery at 3:10 p.m. during the procedure. Dr. Mitchell testified that, despite the dissection, his goal remained to get the wire past the distal circumflex dissection to place a stent to open the artery. Shortly following the dissection of the circumflex artery, while Dr. Mitchell was still attempting to pass the wire into the distal circumflex, Robert began complaining of upper back pain. Robert was administered sedatives, but these failed to have the desired calming effect. Additional sedatives were administered to Robert but to no avail. Robert struggled, trying to get off of the table and required physical restraints.
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At approximately 3:30 p.m., Dr. Mitchell called for the anesthesiologist to further sedate and intubate Robert so the procedure could continue. Five minutes later, the anesthesiologist Dr. Bruce Durkee ("Dr. Durkee"), arrived and administered succinylcholine to paralyze Robert's diaphragm in preparation for the intubation procedure. Unfortunately, Robert was not able to be intubated due to resistance and physical features of the patient, and his oxygen levels began to fall to dangerously low levels. At some point, a second dissection occurred in the left main coronary artery. At 3:43 p.m., Robert lost blood pressure and his heart arrested. CPR was administered, and a difficult intubation tray, which had been requested, arrived and was successfully inserted by 3:48 p.m. Robert's heart, however, remained in arrest. Resuscitative measures were continued. Unfortunately, Robert was pronounced dead at 4:45 p.m. Waters brought suit against Dr. Mitchell, individually, and Meritas. In her Amended Petition, Waters asserted one count of wrongful death against Respondents based on allegations of medical negligence. Trial Advertisements Trial in this case began on June 2, 2014. On the morning of June 4, the trial court informed the parties that there was a newspaper advertisement in The Kansas City Star's 816 North section which featured Dr. Mitchell. The advertisement showed Dr. Mitchell with a patient whom the advertisement claimed received lifesaving care from Dr. Mitchell. The advertisement included a link to a website in which the patient gives a testimonial about the cardiac care he received from Dr. Mitchell. The advertisement was marked for identification but was not admitted or published to the jury. Waters moved to
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strike Respondents' pleadings, citing the prejudicial effect of the advertisement, which was denied by the trial court. The following day, June 5, the trial court notified counsel that a member of the jury had brought a copy of the advertisement with him to the courthouse. The trial court and counsel for the parties spoke with the juror, out of the presence of the other jurors, regarding the advertisement. The juror advised the court that he brought the advertisement in to bring it to the trial court's attention and that other members of the jury had seen the advertisement as well. The juror indicated that the jury had not discussed the advertisement or anything regarding the advertised website. The juror was asked whether having seen the advertisement would affect his ability to be fair and impartial to both sides. He responded no. Waters asked the court to declare a mistrial, to which the Respondents stated they were not opposed. As the trial was well under way and the juror had indicated the advertisement would not affect his ability to be impartial, the trial court refused to declare a mistrial. Respondents suggested that the court interview each of the jurors to see who exactly had seen the advertisements and determine whether their impartiality had been impacted. Waters did not support that approach, arguing that it would only draw more attention to it and exacerbate the issue. The trial court specified that "for the record there's been no indication from anybody that any juror has reviewed anything on the internet in violation of the Court's instructions. The only thing we've got proof of is they have the actual [advertisement] from the paper."
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A second direct mailing advertisement was sent to the residents of Clay County on June 9, 2014, featuring Dr. Zafir Hawa ("Dr. Hawa"), another cardiologist at Meritas, who testified at trial. This advertisement was also brought to counsels' attention by the trial court. There is no evidence in the record that this mailing was seen by any member of the jury. Jury Instructions Prior to the formal instruction conference, the day before the final day of trial, the trial court and counsel held an informal, off the record, instruction conference. After those discussions, the trial court provisionally approved the verdict directing instruction submitted by Waters regarding Respondents' alleged negligence. That instruction read in relevant part, "Second, Defendant James H. Mitchell, M.D. failed to timely recognize and treat obstructions of blood flow in the left main coronary artery that occurred during catheterization" (emphasis added). At the formal instruction conference after the close of all of the evidence, Waters attempted to submit a revised verdict directing Instruction A ("Instruction A"), which read in relevant part, "Second, Defendant James H. Mitchell, M.D. failed to timely recognize and treat obstructions of blood flow to the heart that occurred during catheterization" (emphasis added). The trial court rejected Instruction A and used the instruction previously approved. After the jury returned a verdict in favor of Respondents, Waters filed a Motion for a New Trial, arguing that it was error not to submit Waters's Instruction A and that she was prejudiced by improper contact by Respondents with the jury through the
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advertisements, such that she was deprived of a fai