Kenneth Sundermeyer, Individually and as Personal Representative for Elva Elizabeth Sundermeyer, deceased, Appellant v. SSM Regional Health Services d/b/a Villa Marie Skilled Nursing Facility, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Kenneth Sundermeyer, Individually and as Personal Representative for Elva Elizabeth Sundermeyer, deceased, Appellant v. SSM Regional Health Services d/b/a Villa Marie Skilled Nursing Facility, Respondent. Case Number: WD67235 Handdown Date: 03/18/2008 Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown III Counsel for Appellant: Anthony Dewitt and Edward Robertson, Jr. Counsel for Respondent: Timothy Gearin and Robert Foley Opinion Summary: Kenneth Sundermeyer appeals the trial court's decision to sustain Villa Marie Skilled Nursing Facility's motion for summary judgment in his claim for the wrongful death of his mother. The trial court sustained the motion on the basis that Sundermeyer failed to present evidence that Villa Marie's negligence caused his mother's death because the opinion was not given to a reasonable degree of medical certainty and was speculative as to causation. In his point relied on, Sundermeyer claims that his expert's testimony does create a genuine issue of material fact. REVERSED AND REMANDED. Division holds: The trial court erred in granting summary judgment to Villa Marie. When asked whether his opinion was given to a reasonable degree of medical certainty, the expert answered "[y]es." Further, the expert's opinion as to causation was sufficient to present to a jury. The Missouri approved jury instruction 19.01 describes causation as "directly cause" or "directly contribute to cause." The expert testified, "I think [the conditions at Villa] contributed to her death." This was sufficient to create a genuine issue of material fact for the jury.

and his mother's subsequent death. Sundermeyer's medical expert failed to establish "but for" causation linking Villa

Marie's actions and the mother's state of mind, that, Sundermeyer allege, led to her death. As Sundermeyer failed to establish an element of their cause of action, the trial court's grant of summary judgment in favor of Villa Marie should be affirmed. Citation: Opinion Author: Ronald R. Holliger, Judge Opinion Vote: REVERSED AND REMANDED. Breckenridge, (FN3) P.J., concurs. Lowenstein, J., dissents in a separate opinion Opinion: Kenneth Sundermeyer ("Sundermeyer") appeals the grant of a summary judgment dismissing a claim for the wrongful death of his mother against Villa Marie Skilled Nursing Facility ("Villa") on the basis that he failed to present evidence from which a jury could find that the alleged negligence of Villa had a causal connection to her death. After review of the record, we find that Sundermeyer presented sufficient expert testimony to create a fact issue for resolution by a jury. The grant of summary judgment is, therefore, reversed and remanded for further proceedings. Facts Elva Sundermeyer died on August 12, 2002, at Green Meadows, a nursing center, after being discharged from St. Mary's Hospital on July 24, 2002. She had been a patient at St. Mary's for six days after being admitted from Villa where she had been a patient since July 2001. When admitted to the hospital, she was suffering from dehydration and precipitous weight loss having lost 25 pounds in one month. After her death, this wrongful death action was filed. The petition alleged that Elva Sundermeyer's death resulted from abuse and neglect while she was a patient at Villa. The petition contained 17 alleged acts of negligence in the care and treatment of the decedent. After extensive discovery, Villa filed a motion for summary judgment, contending that Sundermeyer had not produced and would not be able to produce evidence showing to a reasonable degree of medical certainty a causal connection between the alleged acts of negligence and Elva Sundermeyer's death. After plaintiff's response, a reply, and sur--reply, the court entered summary judgment for Villa, stating in relevant part:

Plaintiff identified and produced one expert witness to testify to causation. Plaintiff's expert testimony was not given to a reasonable degree of certainty. In general, and by plaintiff's expert's own admission, Plaintiff's expert's opinions included speculation that it was possible that decedent was old, sick, tired of living and wanted to die. Plaintiff's expert witness did not offer testimony that Villa Marie caused or contributed to cause decedent to lose her will to live. Plaintiffs did not provide any expert medical testimony to establish that any acts or omissions of Villa Marie's agents, servants or employees caused or contributed to cause decedent's death. As such, there is no genuine issue of material fact and Defendant Villa Marie's Motion for Summary Judgment is, therefore, sustained. Sundermeyer now appeals, contending that his expert's testimony does create a genuine issue of material fact. Standard of Review Our review of the trial court's grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid--Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). A defending party is entitled to summary judgment when he: (1) negates a fact necessary to the plaintiff's claim; (2) shows that the plaintiff cannot produce sufficient information for the trier of fact to find in the plaintiff's favor; or (3) shows there is no genuine issue of material fact as to the existence of each element of a complete affirmative defense. Id. at 381. While we view all reasonable inferences in favor of the non-- moving party, "[f]acts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non--moving party's response to the summary judgment motion." Id. at 376. Villa has chosen the second method, alleging that Sundermeyer has not produced sufficient evidence of causation for a jury to find in its favor. Although brought as a wrongful death claim, the underlying cause of action is for medical malpractice. Analysis The elements of a medical malpractice claim are: "(1) an act or omission of the defendant failed to meet the required medical standard of care; (2) the act or omission of the defendant was performed negligently; and (3) the act or omission caused the plaintiff's injury." Mueller v. Bauer, 54 S.W.3d 652, 656 (Mo. App. E.D. 2001). In order to recover, Sundermeyer must show that Villa's acts or omissions failed to meet the requisite standard of care and, thus, caused injury. It is only the third element that is raised by Villa to support its summary judgment request.

In a wrongful death case based on medical malpractice, the causation element can only be satisfied by showing that death was the result of the negligent acts or omissions of the health care provider. Baker v. Guzon, 950 S.W.2d 635, 644 (Mo. App. E.D. 1997). And because of the specialized nature of health care, the elements of a medical malpractice claim must(FN1) be established by expert medical testimony. Brickey v. Concerned Care of Midwest, Inc., 988 S.W.2d 592, 596--97 (Mo. App. E.D. 1999). Such expert testimony must be given to a reasonable degree of medical certainty. Super v. White, 18 S.W.3d 511, 516 (Mo. App. 2000). And except in those cases where the negligence and its connection with the injury are so apparent as to be within common understanding, expert testimony is also required to show a connection between the defendant's negligence and the injury, in this case death. Tilman by Tilman v. Elrod, 897 S.W.2d 116, 118 (Mo. App. S.D. 1995). Was Plaintiff's Expert's Testimony Given to a Reasonable Degree of Medical Certainty? We frankly fail to fully understand the finding by the trial court and argument by Villa that Sundermeyer's expert, Dr. Manger, failed to give his opinions to a reasonable degree of medical certainty. The basis for Villa's argument is the deposition it took of Dr. Manger. Admittedly, he did not testify at the immediate time of giving his opinions that they were given to a reasonable degree of medical certainty. But as any seasoned lawyer would expect, Villa's attorney never asked him that question. Rather, at the conclusion of direct exam, Sundermeyer's attorney asked: "In giving your opinion are you giving your opinion to a reasonable degree of medical certainty? Answer: Yes." To the extent that the court granted summary judgment on this issue, it erred. Did Plaintiff's Expert Opine that the Negligence of Villa Caused the Death of Elva Sundermeyer? Sundermeyer next contends that his expert provided sufficient testimony about the causal relationship to create a genuine issue of material fact. Villa points to deposition testimony that it contends entitles it to judgment as a matter of law because it shows that all of Dr. Manger's testimony is speculative. The essential test is whether Dr. Manger's testimony would be sufficient to present the issue of causation to a jury. Super, 18 S.W.3d at 516. If it is, then summary judgment is improper. Villa argues that Dr. Manger's testimony is not sufficient because it does not satisfy the "but for" test laid out in Callahan v.

Cardinal Glennon Hospital, 863 S.W.2d 852, 862 (Mo. banc 1993). In its motion for summary judgment, Villa candidly stated the legal rule correctly, but avoids doing so in its appellate brief. As acknowledged in its summary judgment motion, the "but for" test is equivalently phrased as "caused or contributed to cause." Missouri approved jury instruction 19.01 was approvingly spoken of in Callahan. It expresses causation as "'directly cause' or 'directly contribute to cause.'" Id. at 863 (quoting MAI 19.01). Dr. Manger testified: What factors caused her death? I think her nutritional decline and her emotional and psychological status all contributed to her death. Let me just get a ballpark handle on what your opinions are in this case, that will tell me how long we are going to be here. I think after reviewing the depositions as well as some of the records of Villa Marie Nuring Home with Mrs. Sundermeyer, I think it's clear to me that she had been neglected at the least. Certainly from the standpoint of the falls she had perhaps been abused from that perspective not just physically but emotionally from the standpoint of having the telephone withdrawn. From the span I believe it was late February early March of 2002 it appeared those instances became more numerous. She had a tremendous weight loss the last month between June and July none of which was really addressed. I think overall her nutritional status suffered and eventually that neglect contributed to her demise. And that caused--all of those conditions that you mentioned caused her death? I think they contributed to her death, yes. [Emphasis added.] Nevertheless, Villa contends that Dr. Manger's testimony was speculative because he conceded both that other factors could also have contributed to her death, that she could simply have gotten old and wanted to die, and that Dr. Manger admitted that he would be speculating as to what she was actually thinking (as, we observe, would any witness). The sufficiency of an expert's testimony is not destroyed simply by concessions that other factors for which the defendant is not responsible could explain the course of events. Schiles v. Schaefer, 710 S.W.2d 254, 261 (Mo. App. E.D. 1986). It is the rare case and rare expert who will not concede (or must necessarily concede) that other things, factors or causes

contrary to or inconsistent with that expert's opinion, are "possible." To the extent that Dr. Manger conceded that causes other than Villa's negligence were possible, his testimony did not lose its probative value. Villa also contended that it was entitled to summary judgment because Dr. Manger did not opine that the alleged negligence caused Elva Sundermeyer to lose her "will to live." Both parties allot some portions of their brief to discussing the open question of whether a cause of action exists for "loss of the will to live." Although intellectually interesting, we fail to see its relevance in the present procedural posture of this case. In essence, this is a garden--variety medical malpractice case brought as a wrongful death action. This fact is asserted by the plaintiff and acknowledged by the trial court. We do not understand Villa's argument to the extent it appears to claim that the "loss of the will to live" is an independent element of Sundermeyer's cause of action. We do not deny the question's relevance, however. The essential gist of the underlying action is that, as a result of the abuse and neglect of Villa, Elva Sundermeyer became severely malnourished and dehydrated; it further contends that, as a result of neglect or direct abuse, she suffered multiple falls, horrendous bruising, and emotional anguish to the point where she said she simply wanted to die. Villa does not dispute, at this summary judgment stage, that these conditions (other than "wanting to die") were a result of its acts or omissions that another witness has apparently described as negligence or resulting from negligence. It only contends, as we understand its argument, that to recover, Sundermeyer had to present expert testimony that, in fact, Elva Sundermeyer had lost her will to live and that loss was caused by the negligence described above. We disagree. We initially have some reservation that current medical knowledge, at least as demonstrated to us, would authorize any witness to testify what the decedent was "thinking," which Villa complains Dr. Manger failed to do. Nor are we convinced that expert testimony is even necessary on this issue. Evidence in a non--expert form about general mental condition, attitude, depression, anxiety, emotional pain, and the like is frequently presented in all varieties of tort cases without the necessity of expert testimony. Expert testimony is required only when an issue is so beyond the ken and understanding of a layperson that the jury will not be permitted to draw a conclusion about the issue without some expert guidance. Vittengl v. Fox, 967 S.W.2d 269, 279 (Mo. App. W.D. 1998) (expert testimony is not necessary unless it is clear that jurors are not capable, for want of knowledge or experience, of drawing correct conclusions from the facts.)(FN2) Assuming, as we must for our present purposes, that Villa's negligence caused or contributed to cause Elva Sundermeyer's diagnosed conditions, we think a jury is as well qualified as an expert to decide whether the emotional conditions and abuse associated therewith affected Elva Sundermeyer to the extent that she didn't want to live or whether she was simply old and sick and wanted to die regardless of any negligence as Villa

claims. That is an issue for a finder of fact, not for summary judgment. Finally, Villa contends generally that Dr. Manger's opinions were speculative and, therefore, not sufficient to overcome summary judgment. Dr. Manger was asked by Sundermeyer's counsel whether any of his opinions were based on speculation and he said no. Villa argues that the trial court under section 490.065 and McDonough is required to act as a gatekeeper in the allowance or disallowance of expert testimony. We do not suggest that an expert witness is the judge of the speculative or non--speculative nature of his opinions, but summary judgment is not the appropriate place or method for resolving such an issue, if there is one. The proper method to exclude testimony of an expert as lacking factual or scientific basis is by objection or motion to strike. Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 616 (Mo. banc 1995). Dr. Manger testified that he could only speculate as to certain questions asked by Villa's counsel but never admitted that any of his essential opinions were based on speculation. That was enough to avoid summary judgment. The judgment is reversed and remanded for further proceedings. Footnotes: FN1.With only rare exceptions. FN2.Expert testimony may also be admitted to aid the jury in its findings about other issues, or to understand technical and scientific matters. RSMo Section 490.065 (2000). FN3.Breckenridge, J., was a member of this court at the time the case was argued and submitted. She was subsequently appointed a judge of the Supreme Court of Missouri but has been reassigned to this court as a special judge for the purpose of disposition of this case. rd Separate Opinion:

The sole allegation in this suit for wrongful death is Villa Marie's neglect of Sundermeyer that caused Sundermeyer to lose her will to live. A cause of action for "causing loss of the will to live" has not been statutorily created nor established (a la prima facie tort) as a cause of action in this state. Regardless of the style of the case, the plaintiffs must prove a medical causal link between the actions of Villa Marie and Sundermeyer's subsequent death. As the plaintiff's medical expert failed to establish such a link, the trial court's grant of summary judgment in favor of defendants should be affirmed.

The appellants plead that beginning in February 2002, Sundermeyer suffered from various ailments including loss of weight, stomach problems, and low electrolytes stemming from lack of hydration. On July 18, 2002, Sundermeyer was admitted to St. Mary's Hospital for dehydration and precipitous weight loss, having lost another eight pounds. She was discharged from the hospital on July 24, and sent to Green Meadows, another skilled nursing center,(FN1) where her conditioned worsened. She died on August 12, 2002. This suit followed, alleging that the abuse and neglect of Villa Marie, the result of which was Sundermeyer's malnutrition and dehydration, "broke her spirit" and caused Sundermeyer to "lose the will to live." To establish causation, Appellant presented the expert medical testimony of Dr. Manger, who was not the treating physician. His testimony was based solely on his review of decedent Sundermeyer's medical records from the hospital and two nursing homes. In granting Respondent's motion for summary judgment, the trial court found Dr. Manger's testimony to be speculative. Specifically, the court relied on the expert witness's testimony that "it was possible that decedent was old, sick, tired of living, and wanted to die." The court found that the expert did not offer testimony that "Villa Marie caused or contributed to cause decedent to lose her will to live." In granting summary judgment for the defendants, the court relied on Baker v. Guzon, 950 S.W.2d 635, 644 (Mo. App. 1997), in that, although the medical expert's testimony was medically informative, the expert was equivocal as to causation and did not state within a reasonable degree of medical certainty that the actions, or inaction, of Villa Marie caused Sundermeyer's death. Appellants do not argue that an action for causing one to lose the will to live, again, not a recognized cause of action in this state, may be sustained without expert medical opinion evidence establishing causation. The issue before this court, then, is whether the plaintiffs' presented sufficient medical evidence of a causal connection between the actions or inaction of the defendants, Sundermeyer's state of mind, and her subsequent death. Such a death seems to be a form of extended and subtle suicide, as opposed to a singular act with immediate results. This cause of action is similar to those cases in which the plaintiff brings a tort action for wrongful death arising from a defendant's conduct causing a person to take conscious action to end his or her life. In each case, this cause of action requires that the plaintiff establish a clear causal link between the actions, or inaction, of the defendant, and the resulting death. For example, in Tompkins v. Kusama, 822 S.W.2d 463 (Mo. App. 1991), suit was brought against a psychiatrist alleging that, because of improper treatment, a young man committed suicide by driving a car into an abutment. Id. at 465. The

plaintiff's expert witness could not testify to a reasonable degree of medical certainty that the young man was suicidal or that the death was in fact a suicide. Id. Because the plaintiff's expert could not make the causal link, the judgment was reversed. Id. at 466. In Tompkins, the actions of the defendant and the resulting injury were so attenuated that, absent such medical causal link, the jury would be forced, improperly, to speculate. An attenuated causal link was also the difficulty in Bailey v. Kershner, 444 S.W.2d 10 (Mo. App. 1969), a suit for wrongful death similar to the case at bar. The decedent, a seventy-year-old man who had suffered a stroke fourteen years earlier and had a history of heart disease, was hospitalized after receiving minor injuries in the accident. Id. at 11-

1. Although his blood pressure returned to normal after two days in the hospital, his condition subsequently worsened

and he died of a stroke eleven days after the accident. Id. at 12-13. The decedent's treating physician testified that, in his opinion, "something" caused his patient's condition to worsen, but he could not state that his opinion was based on any medical certainty. Id. at 13-15. This court's Southern District concluded that it would be improper to permit the jury to infer that the death ensued from the accident without the aid of medical testimony, and that the treating physician's testimony that the injuries from the accident could or might produce death, standing alone, was insufficient evidence to make a submissible claim. Id. at 14-15. Here, Dr. Manger's testimony, based on his reading of Villa Marie's notes and the deposition testimony of family members, refers to "contributing" factors, but does not go so far as to state, within a reasonable degree of medical certainty, that the actions or care of the defendant caused the death of Ms. Sundermeyer. Dr. Manger testified that it was clear to him "that she had been neglected at least." He testified that photographs of Sundermeyer indicated that "she had perhaps been abused physically but also emotionally," that she had a tremendous weight lost between June and July and "her nutritional status suffered and eventually that neglect contributed to her demise." (Emphasis added.) When asked whether the conditions he mentioned had caused her death, the doctor answered: "I think they contributed to her death, yes." (Emphasis added.) When asked specifically about losing her will to live, the doctor responded, "I think there is enough objective evidence from the standpoint of her nutritional decline that there could be contributions to her death just simply from that." [Emphasis added.] He continued: "I don't know that there is a lot of evidence that I have that says that she lost the will to live though certainly patients that get abused withdraw and become more depressed, I think that could be interpreted as a -- as losing the will to live."

The doctor was never able to give an affirmative answer to the question of whether, within a reasonable degree of medical certainty, the care rendered by the defendant failed to meet the degree of skill ordinarily required under the same or similar circumstances. Blevins v. Holcomb, 469 F.3d 692, 694-95 (8th Cir. 2006). Nor does the record indicate that the doctor ever stated his opinion, within a reasonable medical certainty, that but for the defendant's negligent care and conduct, the death would not have occurred. See Graham v. Ozark Mountain Sightseeing, Inc., 181 F.3d 924, 926-27 (8th Cir. 1999). A jury may be allowed to infer causation without expert medical opinion, but these cases are generally those in which an object is left in the patient, or an obvious wound appears. Bertram v. Wunning, 385 S.W.3d 803, 806-07 (Mo. App. 1965). In all other cases, the plaintiff must present evidence of direct causal link, through medical expert testimony, between the medical provider's actions and the injury. Id. Such a requirement is of special note, where, as here, the link between the defendant's actions and the injury is attenuated. Even where Dr. Manger attempted to link Villa Marie's actions to Sundermeyer's state of mind, his testimony was equivocal. The doctor's testimony that Villa Marie's actions could have contributed to Sundermeyer's death is simply insufficient under the standard set by Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852 (Mo. banc 1993). In Cardinal Glennon, the Supreme Court of Missouri rejected the "substantial factor test" and unequivocally stated that "the 'but for' test for causation is applicable in all cases except those involving two independent torts." Id. at 862-63. The majority's contention that Cardinal Glennon stands for the proposition that the "but for test," equivalently phrased as "cause or contribute to cause" is correct only as applied to the limited circumstances of two independent torts, "either of which is sufficient in and of itself to cause the injury." Id. In all other cases, the "but for" causation link, or causation in fact, must be proven by the plaintiffs. Id. at 862. In that the plaintiff failed to so prove, the trial court's grant of summary judgment in favor of the defendants should be affirmed. The verdict directing instruction for wrongful death, MAI 20.01, requires to the jury to find that the injury occurred "as a direct result of such negligence." (Emphasis added.) To find the defendant liable for the wrongful death of another, it is not enough for the jury to find that the defendant's actions "contributed to cause" the injury. Thus, it is not enough for the plaintiff to only show that the defendant's action "contributed to" the injury. Rather, the plaintiff is charged with providing sufficient evidence that the death was the "direct result" of the defendant's actions or inactions. MAI 20.01. Whether the cause of action in the underlying suit is styled an action for the loss of will to live, a cause of action as yet

unrecognized in this state, or an action for negligence against a medical provider, here barred by the statute of limitations, expert medical testimony was required to establish a causal link and make a submissible case. Sundermeyer's sole medical expert could not testify, to a reasonable medical certainty, of a direct causal link between Villa Marie's actions and Sundermeyer's subsequent death. The testimony of the medical witness that the actions of the defendant "contributed" to the death does not stave off summary judgment. That the witness stated his opinions were not based on speculation does not change the substance of his testimony nor supply the missing element to his testimony. The verdict director for wrongful death, MAI 20.01, states that "as a direct result of such negligence" the decedent died. The majority's contention that it is enough that the plaintiff show that the defendant's action contributed to cause to sustain the cause of action is belied by the unequivocal holding of Cardinal Glennon and the jury instructions delineating the plaintiff's required proof. The judgment of the trial court granting summary judgment in favor of the defendant should be affirmed. Footnotes: FN1.Green Meadows was not associated with Villa Marie. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.