Janice Sides, et al., Appellants, v. St. Anthony's Medical Center, et al., Respondents

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Janice Sides, et al., Appellants, v. St. Anthony's Medical Center, et al., Respondents Case Number: ED89388 Handdown Date: 09/25/2007 Appeal From: Circuit Court of St. Louis County, Hon. Emmett M. O'Brien Counsel for Appellant: Stephen F. Meyerkord, Steven D. Rineberg, Matthew D. Meyerkord, Donald R. Carmody, John E. Hilton and William J. Magrath Counsel for Respondent: V. Scott Williams and Douglas B. Ponder Opinion Summary: Janice and Clyde Sides appeal the trial court's judgment dismissing their petition against St. Anthony's Medical Center, Thomas K. Lee, M.D., and Tesson Heights Orthopedic and Arthroscopic Associates, P.C. In June 2003, Dr. Lee performed spinal surgery on Janice Sides at St. Anthony's. Sometime thereafter, Janice suffered an E. coli infection at the surgical site. The Sides sued Dr. Lee and his employer, Tesson Heights Orthopedics, and St. Anthony's for malpractice on the legal theory res ipsa loquitur (if not for a negligent act, the harm would not have occurred); the Sides did not allege any acts of specific negligence. Dr. Lee, Tesson Heights and St. Anthony's moved to dismiss arguing the Sides could not prove their res ipsa case without expert testimony regarding an E. coli infection occuring during surgery. The trial court sustained the motion to dismiss and this appeal follows. AFFIRMED. Division Three holds: Because the Sides needed expert testimony to show that an E. coli infection during surgery does not ordinarily occur in the absence of negligence, they could not pursue their medical malpractice claim under a theory of res ipsa loquitur. Accordingly, the trial court properly dismissed the Sides's petition.

Citation: Opinion Author: Glenn A. Norton, Judge Opinion Vote: AFFIRMED. Roy L. Richter, P.J. and Clifford H. Ahrens, J., concur Opinion: Janice Sides and Clyde Sides ("Plaintiffs") appeal the trial court's judgment dismissing their petition against St. Anthony's Medical Center ("St. Anthony's"), Thomas K. Lee, M.D. ("Dr. Lee"), and Tesson Heights Orthopedic and Arthroscopic Associates, P.C. ("Tesson Heights Orthopedics") on the grounds that their medical malpractice claim, which was based solely on the theory of res ipsa loquitur, could not proceed without the aid of expert testimony. We affirm. BACKGROUND On June 17, 2003, Janice Sides underwent a spinal surgery performed by Dr. Lee at St. Anthony's. Following the surgery, Janice suffered an E. coli infection at the surgical site. Plaintiffs sued Dr. Lee, Dr. Lee's employer, Tesson Heights Orthopedics, and St. Anthony's (collectively "Defendants") for malpractice. In their third amended petition,(FN1) Plaintiffs asserted a claim of medical malpractice against Defendants premised solely on res ipsa loquitur; no acts of specific negligence were alleged. Defendants filed a motion to dismiss on the grounds that Plaintiffs could not prove their case without the use of expert testimony, and therefore could not proceed under res ipsa, because it is not within the common knowledge of laypersons that infection with E. coli during surgery does not ordinarily occur in the absence of negligence. The trial court granted the motion to dismiss and this appeal follows. II.DISCUSSION A.Standard of Review

Review of a motion to dismiss for failure to state a claim is solely a test of the adequacy of a plaintiff's petition. Nazeri v. Missouri Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). We review the petition to determine if the facts alleged therein meet the elements of a recognized cause of action, or of a cause that might be adopted in that case. Id. We assume all of the averments in the petition to be true and the plaintiff is granted all reasonable inferences therefrom. State ex rel. Diehl v. Kintz, 162 S.W.3d 152, 155 (Mo. App. E.D. 2005). B.Missouri precedent governing the application of res ipsa loquitur in medical malpractice cases In order to proceed against a defendant under a theory of res ipsa, a plaintiff must demonstrate that 1) the occurrence resulting in injury does not ordinarily happen in the absence of negligence; 2) the instrumentalities that caused the injury are under the care and management of the defendant; and 3) the defendant possesses either superior knowledge of or means of obtaining information about the cause of the occurrence. Spears v. Capital Region Med. Ctr., Inc., 86 S.W.3d 58, 61 (Mo. App. W.D. 2002). In Missouri, a plaintiff can assert a medical malpractice claim under a theory of res ipsa in two limited circumstances: (1) where a patient received treatment for one problem and incurred an unusual injury to an unrelated portion of the body, or (2) where a surgeon left a foreign object in an operative cavity. Hasemeier v. Smith, 361 S.W.2d 697, 700 (Mo. banc 1962). While the majority of states allow expert witness testimony in support of a medical malpractice claim premised on res ipsa, Spears, 86 S.W.3d at 62, Missouri precedent precludes a plaintiff from asserting medical malpractice under a res ipsa theory if expert testimony is necessary to prove negligence. Hasemeier, 361 S.W.2d at 700-01. In so limiting the use of res ipsa in the medical malpractice context, Missouri courts have stated that res ipsa is incompatible with pleading or proof of specific negligence. Bonnot v. City of Jefferson City, 791 S.W.2d 766, 769 (Mo. App. W.D. 1990). Plaintiffs concede that they are unable to make a case under res ipsa without the aid of expert testimony, and therefore under current Missouri law this Court must affirm. Plaintiffs' intention, however, is ultimately to persuade the Missouri Supreme Court to adopt the majority view allowing the use of expert testimony to prove a medical negligence case

premised on res ipsa. Plaintiffs argue that the majority view "accommodates the increasing complexity of modern medicine" and "serves to bridge the gap between the jury's common knowledge and the complex subject matter that is common only to experts in a designated field." Dr. Lee and Tesson Heights Orthopedics argue that under Missouri law the trial court had no choice but to grant their motion to dismiss because Plaintiffs, by their own admission, could not establish the elements of res ipsa without the aid of expert testimony. St. Anthony's takes the additional position that an expansion of the res ipsa doctrine to allow proof by expert testimony would be in direct conflict with Missouri Supreme Court precedent interpreting section 538.225.1 RSMo 2000 (the "Healthcare Affidavit Statute").(FN2) We decline to review the effect of the Healthcare Affidavit Statute on the application of res ipsa in medical malpractice claims. As admitted by Plaintiffs, Missouri precedent on the issue presented here is clear. In Missouri, it is firmly established that a plaintiff cannot pursue a medical malpractice claim premised on res ipsa where expert testimony is needed to prove negligence. In order to establish the elements of res ipsa in their malpractice claim against Defendants, Plaintiffs needed the aid of expert testimony to show that infection with E. coli during surgery does not ordinarily occur in the absence of negligence. Under current Missouri law, Plaintiffs could not proceed under a res ipsa theory and the trial court had no choice but to dismiss the petition. We affirm. III.CONCLUSION The judgment of the trial court dismissing Plaintiffs' petition is affirmed. Footnotes: FN1.Plaintiffs' first and second amended petitions asserted specific acts of negligence as to each defendant. FN2.Section 538.225.1 states: In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or his attorney shall file an affidavit with the court stating that he has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonable prudent and careful health care provider would have

under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.