Opinion
No. WD 64358 Consolidated with No. WD 64365
August 23, 2005
Appeal from the Circuit Court of Jackson County, Missouri, Honorable Ann Mesle.
Before Howard, P.J., Smart and Newton, JJ.
Mr. William Woodward challenges a circuit court order denying his motion for new trial in a wrongful-death and survivorship case arising from the death of his wife Elsie three months after she fell at Research Medical Center (Research). Research files a cross-appeal, challenging the circuit court's order denying its motion for judgment notwithstanding the verdict. Mr. Woodward claims error in the circuit court's denial of his requested wrongful-death verdict-directing instruction, while Research asserts error in submitting to the jury Mr. Woodward's claim for loss-of-consortium damages in relation to his survivorship action, § 537.020. We affirm in part and reverse in part and remand for further proceedings.
All statutory references are to RSMo. (2000), unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Woodward, who was 79 when she died, entered Research Medical Center in August 2000 for a medical procedure intended to relieve her severe chest pain. Stents were successfully inserted into her blood vessels during a cardiac catheterization procedure. Her recovery was well underway when, hours before she was due to be released from the hospital, she fell and suffered an undiagnosed broken hip and several cardiac arrests that affected her brain function. She never returned home after the fall, and a final heart attack ultimately caused Ms. Woodward's demise in November.
Ms. Woodward's broken hip was not discovered for three months, until an x-ray, taken several days before her death to find the source of her stomach pain, revealed the fracture.
In the hours preceding Ms. Woodward's fall, care was provided by a nurse who had been temporarily reassigned from another unit and was not entirely familiar with the specialized needs of and treatment for critical-care cardiac patients. Ms. Woodward's blood pressure was supposed to be controlled with nitroglycerin that was not to exceed a prescribed dosage of 90 micrograms per minute. The nurse, however, in consultation with his supervising nurse, bumped the medication up to 100 micrograms per minute without authorization from any doctor, because Ms. Woodward's systolic blood pressure continued to exceed the upper limit of 150 set by her doctor. The nurse later recorded an episode of confusion that Ms. Woodward exhibited during the night and again failed to inform her doctor about this aspect of her recovery.
In the morning, Mr. Woodward, who had arrived early to bring his wife home, rang for care so his wife could be assisted to the restroom. The nursing shift had changed, but the new attending nurse was not fully briefed about Ms. Woodward's condition. Without checking Ms. Woodward's chart or blood pressure, the new nurse helped her stand from a sitting position and had Ms. Woodward push her IV pole, an acknowledged tripping hazard, as they proceeded toward the restroom. Before they reached the restroom, Ms. Woodward fell. The nurse either left the room, according to Mr. Woodward, or reached for the door to the hallway to close it, according to the nurse. In either event, the nurse was not in physical contact with Ms. Woodward when she fell. There was also a dispute about how Ms. Woodward fell, either squarely on her buttocks or on her side, but she complained about pain in her right leg. After a few moments, Ms. Woodward lost consciousness and went into cardiac arrest. She was resuscitated and transferred to the intensive care unit where she went into cardiac arrest again. She suffered another episode when she was returned to the cardiac catheterization lab. As a result, Ms. Woodward sustained brain damage and subsequently had to be fed through a tube. In the months that followed, Ms. Woodward suffered a blood infection, bedsores, a bladder infection, and pneumonia, and had to undergo dialysis. An x-ray taken in November to pinpoint the source of stomach pain revealed a significant hip fracture that was traced to the fall. In November, she had a final cardiac arrest, and the decision was made to withdraw care, and she died.
In their first amended petition for damages, Mr. Woodward and the couple's daughter Sharon Foster alleged that Research was negligent because its nursing staff did not conform to the standard of care. Specifically, they alleged negligence in (i) "providing inadequate and under-trained staff to care for Mrs. Woodward," (ii) failing to adequately supervise staff assigned to care for Mrs. Woodward," (iii) failing to provide a sufficient number of staff to care for Mrs. Woodward," (iv) "failing to communicate between shifts regarding Mrs. Woodward's condition," (v) "failing to review Mrs. Woodward's chart before assuming the care of Mrs. Woodward," (vi) "failing to adequately assess Mrs. Woodward to determine whether she required assistance in walking to the restroom," (vii) "failing to offer the option of a bedside commode to Mrs. Woodward," (viii) "failing to adequately monitor Mrs. Woodward's condition, including but not limited to her mental status, intake and output, blood sugar, blood pressure, and response to medication," (ix) "failing to institute a fall protocol for Mrs. Woodward," (x) "increasing the doseage [sic] of Mrs. Woodward's nitroglycerin without a physician order," (xi) "failing to communicate with Mrs. Woodward's physicians regarding changes in her condition," (xii) "failing to assist Mrs. Woodward in walking to the restroom," (xiii) "leaving the room while Mrs. Woodward attempted to walk to the restroom," (xiv) "failing to seek assistance from other staff in helping Mrs. Woodward to the restroom," (xv) "failing to adequately assess Mrs. Woodward after her fall," and (xvi) "failing to fully and adequately communicate the circumstances surrounding Mrs. Woodward's fall to her treating physicians."
As the surviving spouse and child, Mr. Woodward and Ms. Foster, respectively, sought damages for wrongful death under section 537.080. Mr. Woodward also sought damages for funeral expenses, health care bills and loss of consortium as part of his wrongful death claim. As personal representative of Ms. Woodward's estate, Mr. Woodward sought damages for his wife's injuries before death under our survivorship statute. § 537.020. He also filed a separate, derivative claim as her husband for loss of consortium and to recover medical and pharmaceutical bills. This count of his petition was joined to the allegations in the survivorship action. A claim for lost chance of survival was abandoned. During trial, Mr. Woodward's theory of the case was that negligence on the part of Research's nursing staff allowed the fall to happen and that the fall, in combination with his wife's pre-existing medical conditions, was responsible for the heart attacks and downward spiral Ms. Woodward suffered thereafter to her death. On cross-examination, Mr. Woodward's expert opined as well that Ms. Woodward's pre-existing medical conditions put her at risk of falling and that she should not have been allowed to get out of bed to go to the restroom.
Research's defense was that Ms. Woodward's pre-existing medical conditions, including coronary artery disease, congestive heart failure, diabetes, high blood pressure, and kidney failure, caused the unanticipated heart arrhythmia that Research claimed caused the fall and ultimately resulted in her death. According to Research, nothing any of the nursing staff did or failed to do caused or contributed to the arrhythmia that led to Ms. Woodward's collapse.
In submitting the case to the jury, the circuit court gave the wrongful-death verdict-directing instruction, MAI 20.02, and refused, over Mr. Woodward's objection, to modify the instruction with MAI 19.01, which applies to cases involving multiple causes of damage. Thus, the jury was instructed to find for the plaintiffs if it found that Ms. Woodward died "as a direct result" of Research's alleged negligence, rather than if it found that "such negligence directly caused or directly contributed to cause" her death. The circuit court indicated that its decision in this regard was based on the lack of a reference to MAI 19.01 in the committee notes to MAI 20.02. Regarding the survivorship/personal injury claim, the circuit court, over Research's objection, did modify the verdict-directing instruction for actions against health care providers, MAI 21.01, with MAI 19.01; the jury was instructed to find for the plaintiffs on this claim if it found that Research's "negligence directly caused or directly contributed to cause damage to Elsie Woodward."
All MAI references are to the Missouri Approved Jury Instructions, Sixth Ed. (2002), unless otherwise indicated.
The circuit court also gave the converse instruction, which provides that the jury must return a verdict for the defendant unless negligence and causation have been proved, and tracked the wrongful-death verdict-director's language on direct causation. Mr. Woodward objected to this instruction and brings that issue to this court as well.
The jury, which apparently found that Research's alleged negligence did not directly cause Ms. Woodward's death, nevertheless awarded Mr. Woodward $100,000 for his derivative past economic damages, including medical damages, that had been joined to the survivorship/personal injury claim he brought as personal representative of his wife's estate. The circuit court denied Mr. Woodward's motion for new trial and Research's motion for judgment notwithstanding the verdict, and these appeals followed.
Mr. Woodward argues in support of his instructional error claim that (i) MAI 19.01, the multiple causes instruction, applies to wrongful-death claims; (ii) MAI 19.01 is required when a pre-existing condition or a subsequent injury combines with a defendant's negligence to produce an injury; and (iii) he was prejudiced both by the court's failure to modify the wrongful-death verdict director with MAI 19.01 and its purported error in refusing to also modify the converse instruction as requested. Research raises three issues in its cross-appeal, one of which was not raised in its motion for judgment notwithstanding the verdict, and one of which has been withdrawn. Those issues not withdrawn by Research are whether (i) a personal representative or surviving spouse has a legally cognizable claim for loss-of-consortium damages in an action brought under section 537.020, which relates to the survival of actions for personal injury or death regardless of the death of either party, and (ii) the court erroneously and prejudicially modified the personal-injury verdict director and corresponding damages instruction with the MAI 19.01 multiple causes instruction.
Research acknowledges its failure to preserve this issue, i.e., that the circuit court erred in modifying the survivorship/personal injury verdict-directing instruction and its converse with the multiple causes language of MAI 19.01, but asks the court to review the matter, which is a mirror image of Mr. Woodward's points relied on, for plain error under Missouri Rules of Civil Procedure 84.13(c).
The point withdrawn involved a claim of insufficient evidence to support the jury's award of $100,000 in economic damages to Mr. Woodward.
STANDARD OF REVIEW
We review a circuit court's denial of a new trial motion for abuse of discretion, which we will find only when the ruling is so arbitrary and unreasonable that it shocks our sense of justice and indicates a lack of careful consideration. Bowan ex rel. Bowan v. Express Med. Transporters, Inc., 135 S.W.3d 452, 456 (Mo.App.E.D. 2004). Our standard of review following denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case. Id. "A case is not submissible unless each and every fact essential for liability is predicated upon legal and substantial evidence." Id. And, in determining whether a submissible case has been made, "we consider the evidence, and all reasonable inferences therefrom, in the light most favorable to the plaintiff, and we disregard all evidence contrary to plaintiff's claim." Id.
Whether a jury has been properly instructed is a question of law, and we give little deference to the circuit court's decision. Wright v. Barr, 62 S.W.3d 509, 526 (Mo.App.W.D. 2001). Jury instructions must be supported by substantial evidence, and we review the evidence and every inference in a light most favorable to the submission of the instruction. Id. The opponent's evidence is disregarded, "unless it tends to support the submission." Bank of Am., N.A. v. Stevens, 83 S.W.3d 47, 54 (Mo.App.S.D. 2002). In addition, a party is entitled to have his theory of the case submitted to the jury by instructions, as long as the instructions are within the pleadings and evidence and are correct in form and substance. Wright, 62 S.W.3d at 530. If a party is entitled to an instruction that has been requested but not given, reversal is warranted when the merits of the case have been materially affected. Id.
Legal Analysis
The circuit court apparently refused to modify the wrongful-death instruction on the basis of the Notes on Use to MAI 20.02. The courts consider these notes to be an integral part of the Missouri Approved Instructions. Gormly v. Johnson, 451 S.W.2d 45, 46-47 (Mo. 1970). The instructions are authoritative, and, if applicable, they and the Notes on Use must be followed "religiously." Royal Indem. Co. v. Schneider, 485 S.W.2d 452, 458 (Mo.App. 1972).
Most of the discussion during trial about this instruction focused on the circuit court's reluctance to use an instruction without clear direction from the notes, but the court did state as well, "The evidence isn't multiple causes, the evidence is it's one or the other. . . ." Tr. at 889. It is unclear to this court why then the circuit court agreed to modify the verdict director related to the survivorship/personal injury claim with the multiple causes instruction. If, as we believe, there was evidence to show that the alleged nursing negligence brought about decedent's decline only because she had pre-existing medical conditions, then the same evidence would support a claim that these possible multiple causes brought about her death.
A narrow exception to this rule has been developed, however; an MAI and its Notes on Use are not binding to the extent that they conflict with substantive law. State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997). In this case, Mr. Woodward argues and Research agrees that, despite the absence of any specific reference in MAI 20.02 to MAI 19.01, the multiple causes instruction can be applied to a wrongful-death case. See, e.g., Hagen v. Celotex Corp., 816 S.W.2d 667, 673 n. 9 (Mo. banc 1991) (stating that MAI 19.01 can apply to wrongful-death cases by substituting the words "the death of" for "damage to"); Honey v. Barnes Hosp., 708 S.W.2d 686, 692-93 (Mo.App.E.D. 1986) (court finds no error in application of MAI 19.01 to applicable wrongful-death verdict director, MAI 20.02). Accordingly, the fact that the Notes on Use to MAI 20.02 do not expressly allow its modification by MAI 19.01 should not have precluded the circuit court from allowing the modification, if warranted by the evidence.
The parties disagree about whether the evidence showed that there were multiple causes for Ms. Woodward's death. According to Research, (i) a heart arrhythmia alone caused the fall, (ii) the heart arrhythmia that occurred three months after the fall was a superseding cause of death, and (iii) underlying, pre-existing medical conditions do not constitute independent, intervening causes. Mr. Woodward did not plead multiple causes and, in opening, told the jury that it would have to decide whether cardiac arrhythmia caused the fall or the fall caused the cardiac arrhythmia. Nevertheless, his expert witness testified that Ms. Woodward's pre-existing medical conditions (i) put her at risk of falling in the first place, (ii) caused her body to react to the negligently caused fall and broken hip by going into cardiac arrest, or (iii) so interfered with her ability to recover from the fall that she had a series of complications which ultimately led to her death. Instructional Error — Cases Applying MAI 19.01
Mr. Woodward's expert, Dr. Fox, testified that the cardiac arrests would not have happened if Ms. Woodward had not fallen and broken her hip. Tr. at 567. He also testified that her pre-existing medical conditions complicated her body's ability to respond to the fall. Tr. at 564-65. Dr. Fox testified on cross-examination that Ms. Woodward's pre-existing medical condition placed her at risk for a fall. Tr. at 635.
The multiple causes modification is applied where more than one party's actions may be responsible for the plaintiff's injuries. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993) (parents of child, who contracted paralytic polio when improperly treated abscess weakened his immune system several weeks after live polio vaccine was administered, filed medical malpractice claim against four defendants, two of whom remained in the case at the time of trial; MAI 19.01 modification given); Honey, 708 S.W.2d at 692 (parents of psychiatric patient who committed suicide brought wrongful-death action against hospital, general contractor, architect, and window manufacturer; no error found in application of MAI 19.01 modification to wrongful-death verdict director).
The instruction has also been applied where previous and/or subsequent injuries are similar to the injury at issue, so that the jury can sort out to what extent the incident giving rise to the cause of action is responsible for the damages alleged. Carlson v. K-Mart Corp., 979 S.W.2d 145 (Mo. banc 1998) (primary dispute at trial is what part incident at K-Mart and subsequent auto accident played in creating painful neck and back condition; there was also pre-existing degenerative disk disease in evidence); Higby v. Wein, 996 S.W.2d 95 (Mo.App.E.D. 1999) (plaintiff had pre-existing shoulder injury; MAI 19.01 modification required so jury could determine to what extent auto accident was responsible for aggravation of shoulder injury); Snelling v. Gress, 996 S.W.2d 538 (Mo.App.W.D. 1999) (evidence was presented that plaintiff experienced multiple possible causes of neck, shoulder and back injuries, including work-related events occurring before and after accident at issue; court determines verdict-directing and damages instructions should both have been modified by MAI 19.01).
The MAI 19.01 modification has been approved for use as well in a "two fires" case. Wright, 62 S.W.3d at 530. Ms. Wright, who alleged that medical malpractice caused her stroke, was already at high risk of a stroke due to pre-existing medical conditions, and the doctor's alleged deviation from the standard of care in performing a cardioversion placed her at a much higher risk of stroke. The Wright court referred to this situation as the classic "two fires" case. Id. Prosser describes this aspect of multiple causation as a situation where two causes concur in bringing about an event, and either one of them operating alone would have been sufficient to cause the identical result. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OFTORTS § 41, at 266-67 (5th ed. 1984). This case is not a "two fires" case, because the evidence showed that (i) the purported negligence which resulted in a fall would not alone have caused cardiac arrhythmia; and (ii) Ms. Woodward's pre-existing medical conditions had not put her at risk of a cardiac arrhythmia before the fall occurred.
Research argues that the court improperly characterized Wright as a "two fires" case on this basis and claims that it was a "two fires" case only because there was evidence of two clots, one of which was dislodged during the medical procedure and caused the stroke, and either of which could have caused the stroke. According to Research, the doctor's alleged negligent performance of the surgical procedure, in itself, was not sufficient to cause a stroke and only placed the plaintiff at risk because there was an existing blood clot. Research also urges the court to limit Wright and recognize that a multiple causes instruction is improper in the classic "eggshell skull" plaintiff case. It argues, "If Wright had involved a single clot that became dislodged because of Dr. Barr's negligence in performing the cardioversion, it would be the classic 'eggshell skull' plaintiff scenario, and a multiple cause instruction would not be proper." Respondent's Brief at 49 (emphasis in original). Because the case at bar is not an "eggshell skull" case, we will not address this aspect of Wright. See discussion infra.
The instruction has also been used in the case of a "thin-skulled" plaintiff. Callahan, 863 S.W.2d at 858-60 (MAI 19.01 modification not at issue, but tacitly approved in case with "thin-skulled" plaintiff). It is unclear in Callahan whether the approved modification was due to the fact that there were joint tortfeasors or that the infant was susceptible to the polio virus from a previously administered vaccine, a pre-existing condition. But see Wailand v. Anheuser Busch Inc., 861 S.W.2d 710, 717-18 (Mo.App.E.D. 1993) (court rejects use of MAI 19.01 modification where pre-existing condition, arteriosclerosis, made plaintiff more susceptible to the stroke that resulted from a trip and fall incident; court indicates modification is limited to cases where more than one party's actions contribute to cause damage).
The court does state, in discussing defendant's contention that the child's paralytic polio was not the natural and probable consequence of its failure to properly treat the abscess, that there were no other "potential intervening causes present" other than the negligent treatment by the doctor or nurse. Callahan, 863 S.W.2d at 865. By implication, the court appears to be saying that it did not consider the child's susceptibility to polio, which placed him in the class of "thin-skulled" plaintiffs, to be a potential intervening cause.
The jury instruction committee explains in its 1995 comment that the title of MAI 19.01 was changed in 1986 from "Verdict Directing Modification — Joint Tortfeasors" to "Verdict Directing Modification — Multiple Cause of Damage" to avoid confusion and allow the modification in cases with multiple causes of damage that may not involve another party or tortfeasor. MAI 19.01 Committee Comment (1995 New) (6th ed. 2002). Thus, we question whether Wailand correctly states the law to the extent that it purports to limit the application of MAI 19.01 to cases involving concurrent causes for which another party or tortfeasor is responsible.
Research argues that Ms. Woodward is a "thin-skulled" plaintiff and that a defendant is generally responsible for all of the injuries that a "thin-skulled" plaintiff sustains as a result of the defendant's negligence. Thus, Research claims, the 19.01 modification is redundant in such a case. What Research overlooks, however, is that liability in tort is premised on the foreseeability of the harm caused by a defendant's negligence. The "thin-skulled" plaintiff doctrine was developed, however, to extend liability where the result of a defendant's negligent act was not foreseeable due to the plaintiff's physical condition, which is unknown to the actor. KEETON ET AL., § 43, at 290-92; RESTATEMENT (SECOND) OF TORTS § 461 cmt. a (1965) (the rule applies where peculiar physical condition which makes injuries greater than actor expected is not known to actor, actor could not have discovered it by exercise of reasonable care, or even if unknown to person suffering it or to anyone else until after harm is sustained). This is not a "thin-skulled" plaintiff's case; Research knew that Ms. Woodward had pre-existing medical conditions that had the potential to result in injury far greater than broken bones if it negligently failed to prevent her from falling. Thus, the fact that a woman with a weak heart, diabetes, and renal dysfunction sustained heart arrhythmia and cardiac arrests after the fall and was, because of these conditions, simply unable to recover from the broken hip and cardiac arrests was entirely foreseeable. Instructional Error — Committee Notes
Because Missouri does not employ a pure foreseeability test, injuries sustained by the "thin-skulled" plaintiff can be causally connected to a defendant's negligence by means of a "look back" test, requiring that the injury be "natural and probable." Callahan, 863 S.W.2d at 865 (court states, "it was clear to everyone that if [the child] received negligent medical care some injury would likely result to him. This meets traditional causation requirements and requires us to reject [defendant's] argument that the doctor or nurse needed to foresee that paralytic polio might reasonably be caused by the failure to incise and drain.")
Moreover, the cardiac arrest that Ms. Woodward suffered immediately before her death cannot be said to constitute a superseding cause that would relieve Research as a matter of law from liability for her death. Section 442A of the Restatement (Second) of Torts provides that "Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause." RESTATEMENT (SECOND) OF TORTS § 442A (1965). Section 443 provides, "The intervention of a force which is a normal consequence of a situation created by the actor's negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about." Id. at § 443. In light of Ms. Woodward's physical condition, it is arguable that it was entirely foreseeable that her ability to recover from a broken hip would be compromised and that the final cardiac arrest that preceded her death was to be expected. See Vintila v. Drassen, 52 S.W.3d 28, 42 (Mo.App.S.D. 2001) (intervening cause does not preclude liability where it is foreseeable and natural product of the original negligence); Buchholz v. Mosby-Year Book, Inc., 969 S.W.2d 860, 862 (Mo.App.E.D. 1998) (for intervening act to relieve original tortfeasor from liability, the act cannot be a foreseeable consequence of the original negligent act).
The committee comment to MAI 19.01, discussing the legal principles the modification is intended to embody, refers to the "general rule" that a defendant can be negligent and liable for injury even though his or her negligence was not the sole negligence or the sole proximate cause, and although his or her negligence, without such other independent, intervening cause, would not have produced the injury. MAI 19.01 Committee Comment (1995 New) (6th ed. 2002) (citing Gaines v. Prop. Servicing Co., 276 S.W.2d 169 (Mo. 1955)).
Research contends that a pre-existing injury, itself, can only entitle a plaintiff to the 19.01 modification if there were other persons or events that caused the pre-existing injury. There does not appear to be any logic supporting this assertion. While the law is usually concerned with determining where the responsibility for harm lies, it is clear that any number of occurrences or conditions can be a proximate cause of harm, including natural phenomena like lightning, flooding or an animal that happens to be in the wrong place at the wrong time. And these occurrences or conditions to which no liability can attach, operating in combination with a defendant's negligence, can bring about an injury. Because defendants can be held liable even where their negligence without that other cause would not have produced the injury, Gaines, 276 S.W.2d at 173-74, the multiple causes modification gives a jury the tool it needs to understand and apply this principle.
Research also contends that a pre-existing condition cannot constitute an intervening cause. If its argument is time-based, it is wrong. According to the Restatement, "It is not necessary that an intervening force have been set in motion subsequent to the time when the actor's negligent conduct was committed." Restatement (Second) of Torts § 441 cmt. a (1965). In addition, while a patient may bring a medical condition to a given situation, as here, that condition only ripens into a cause of harm either at the time defendant's negligence occurs or some time thereafter. The evidence supporting the requested instruction was that Ms. Woodward's medical problems had not caused a heart arrhythmia until after hospital personnel allegedly overdosed her with nitroglycerin, failed to institute a fall protocol despite the confusion she exhibited in the middle of the night, and negligently allowed her to stand and walk without adequate assistance to the restroom.
Research also argues that the central issue in the case, in terms of alleged instructional error, is what caused the fall and not what caused Ms. Woodward's death. Research claims that the alleged negligence and pre-existing medical conditions constituted alternative theories of causation in relation to the fall and thus, that a multiple causes instruction was not supported by the evidence. Research further contends that Mr. Woodward cannot rely on its evidence and theories as justification for the modification instruction, claiming that Mr. Woodward advances for the first time on appeal his theory that the pre-existing medical conditions also combined with Research's negligence to cause Ms. Woodward's fall.
Research's expert, Dr. Frey, testified that sudden cardiac arrhythmia caused the fall, Tr. at 681-82, and that Ms. Woodward's past medical history played a role in causing that arrhythmia. Tr. at 683-84.
Causation is the nexus between negligent conduct and injury. Here, the injury was not the fall; rather, it was the broken hip sustained in the fall and the cardiac arrests and other complications that culminated in Ms. Woodward's death. According to the evidence presented to the jury, the fall alone would not have caused Ms. Woodward's heart attacks. Witnesses for both parties testified that Ms. Woodward's pre-existing medical conditions put her at risk of falling and that her pre-existing medical conditions compromised her body's ability to recover from the injuries that resulted from the fall. In addition, according to plaintiff's expert, Dr. Fox, Ms. Woodward's body — due to age and pre-existing conditions — was unable to withstand the shock of the fall and broken hip, so her heart stopped and insufficient oxygen was supplied to her brain.
The wrongful-death instruction that was given required the jury to find liability only if Research's alleged negligence directly caused Ms. Woodward's death. Without the intervention of her pre-existing medical conditions, the alleged negligence would only have directly caused a broken hip. We do not believe that the application of MAI 19.01 is limited to a "two fires" case or to cases where (i) the independent, intervening cause is chargeable to another actor or event, or (ii) an existing or subsequent injury is so similar to that allegedly caused by the tortfeasor that the jury would otherwise be confused about the extent to which the incident giving rise to the cause of action is responsible for the damages alleged. As noted above, the committee comment to MAI 19.01 speaks in terms of a general rule that defendants can be negligent and liable for injury even though their negligence is not the sole negligence or the sole proximate cause of the injury. MAI 19.01 Committee Comment (1995 New). There is no reason in the law to make a distinction between other proximate causes that are chargeable to an actor, an event, or a condition, where the issue is to what extent a tortfeasor's negligence has contributed to a plaintiff's damage or death, and that negligence is not shown to be the sole proximate cause of the injury.
We think that a plaintiff, who has shown that a defendant's alleged negligence, acting in combination with a pre-existing condition, has caused injury, is entitled to the MAI 19.01 modification. We also believe that any evidence in the case that supports a multiple causes theory as opposed to alternative causation, whether introduced by plaintiff or defendant, can be considered in determining if plaintiff's instruction modification is supported by substantial evidence. Bank of Am., N.A., 83 S.W.3d at 54. As long as the instructions are within the pleadings and evidence and are correct in form and substance, a party is entitled to have his theory of the case submitted to the jury by those instructions. Wright, 62 S.W.3d at 530.
Nevertheless, Research's concerns about a potential expansion of liability for health-care professionals are well taken. Obviously, the majority of hospital patients bring pre-existing conditions with them when they are admitted. It is clear to this court, however, that the multiple causes instruction will only be justified where there is a demonstrated relationship between the pre-existing condition and the resulting injury. For example, if the pre-existing condition in this case had been Alzheimer's disease and the decedent had been admitted to treat a broken bone, it would have been difficult, if not impossible, for plaintiffs to show that the fall and subsequent heart attacks were caused by the disease in combination with defendant's negligence.
Because Mr. Woodward was entitled to the MAI 19.01 modification of his wrongful-death verdict director, we must next determine whether the merits of the case have been materially affected by the circuit court's refusal to submit the instruction to the jury. Wright, 62 S.W.3d at 530. The instruction given placed a higher burden on Mr. Woodward to prove that Research's alleged negligence in August, when Ms. Woodward fell, caused her death some three months later, because the jury was instructed to find liability only if the negligence directly caused the death. The jury's verdict on the alternative survivorship/personal injury claim provides an indication that the jury found negligence on the part of Research and a direct or contributory link between that negligence and the harm Ms. Woodward suffered before she died. Mr. Woodward suggests that submitting the wrongful-death claim under the more rigorous causation standard in effect told the jury that a higher standard was required to return a verdict on a death claim than on a survivorship claim. The claims were submitted as alternative bases for recovery; thus, we agree that the merits of the case have been materially affected and that Mr. Woodward was prejudiced by the denial of his requested instruction and its converse and that the circuit court erred as a matter of law in refusing to submit that instruction to the jury. Wright, 62 S.W.3d at 526. We reverse the circuit court's denial of his motion for new trial.
As for Research's claim that the survivorship/personal injury verdict director was flawed because it included the MAI 19.01 modification, even if we were to consider the issue as a matter of plain error under Rule 84.13(c), because we find that Mr. Woodward was entitled to a multiple causes instruction in relation to his wrongful-death claim, we also find that the evidence supported the instruction in relation to his survivorship claim. This point is denied.
As noted above, Research acknowledges that this issue was not raised in its motion for judgment notwithstanding the verdict, and thus was not properly preserved for our consideration.
Loss of Consortium
Research further contends that Mr. Woodward's loss-of-consortium claim, which was joined to the survivorship/personal injury action brought under section 537.020 by Mr. Woodward as the personal representative of his wife's estate, does not survive her death. Research argued during trial that the damages submitted in Mr. Woodward's survivorship package were duplicative of those asserted in his alternative claim for wrongful death and that they should be submitted to the jury only as part of the wrongful death case. Research specifically focused on the alleged damages relating to care, comfort, guidance, and support, and to pain and suffering in its argument to the circuit court. It is clear, however, that when the jury returned a verdict in favor of Mr. Woodward on the survivorship claim, it awarded only past economic damages. The completed verdict form shows no award for past and future non-economic damages, which were defined in the instruction as "non-pecuniary harm such as pain, suffering, physical impairment, loss of consortium, and loss of capacity to enjoy life." Because Research does not address in what way the economic damages verdict was in error, we will deny this point.
For these reasons, we affirm in part and reverse in part and remand for a new trial.
Mr. Woodward filed a Motion to Strike part of Research's Reply Brief for advancing an unauthorized sur-reply to his Reply Brief. Research, as a cross-appellant, was permitted by Missouri Rules of Civil Procedure 84.04(j) to reply to Mr. Woodward's response to its cross-appeal. Research claims that Mr. Woodward opened the door to further argument on his appeal by relying, in his response to its cross-appeal, on an argument advanced in his reply to Research's response to his appeal. Rule 84.04(j) provides in part, "The respondent may file a reply brief in reply to appellant's response to the issues presented by the respondent's appeal." There is no exception to support Research's argument. Motion granted, and pages 9-19 of Research's Reply Brief are stricken.
Victor C. Howard, P.J. and James M. Smart, J. concur.