Tort Law

Editor:
Keith A. Cutler, Esquire

An offer of proof of excluded testimony not required when there is a complete understanding of the excluded testimony, the objection is to a whole category of evidence, and the excluded evidence would have helped the proponent.  Marchosky v. St. Luke’s Episcopal-Presbyterian Hospitals, No. 95992 (Mo. App. E.D., January 17, 2012), Clayton, J.

Upon leaving the operating room after completing surgery, a doctor slipped and fell on a substance which had been spilled on the floor by a custodian.  The doctor sued the hospital to recover for his injuries.  Thedoctor identified an expert whom he planned to call to testify as to the industry standards for the transport of liquids within highly specialized areas of hospitals.  Prior to trial, the hospital moved to strike the expert; in response, the doctor filed a memorandum in support of his position, and an offer of proof outlining the anticipated testimony of his expert.   The trial court granted the motion to strike prior to trial and refused to allow the expert to testify.   During the trial, the doctor did not seek to call his expert as a witness, nor make an offer of proof on the record.  The jury returned its verdict in favor of the hospital, and the doctor appealed.

Held
Reversed and remanded.   On appeal, the hospital maintained that the doctor’s claim of error was not preserved because the doctor did not make an offer of proof, during the trial, regarding the expert’s testimony.  Generally speaking, a court’s pre-trial rulings excluding evidence are interlocutory.  As such, a party is still required to offer the evidence during trial, and if denied, to make an offer of proof.  In State ex rel. State Highway Commission v. Northeast Building Co., 421 S.W.2d 297 (Mo. 1967), the Supreme Court recognized a narrow exception to this rule.   An offer of proof is not required if (1) there is a complete understanding of the evidence to be excluded; (2) the objection is to a category of evidence rather than to specific testimony; and (3) the excluded evidence would have helped the proponent of the evidence. Here, since the doctor filed a memorandum detailing the expert’s proposed testimony, and the expert’s testimony was disallowed in its entirety, the first two criteria were met. The court of appeals also determined that the testimony concerning industry standards for handling liquids in hospitals could have been considered by the jury in determining the hospital’s negligence.   Therefore, it could have been helpful to the doctor, and the third criterion was met. 

Having determined that no offer of proof during trial was necessary to preserve the issue for appeal, the court of appeals proceeded to consider the merits of the trial court’s exclusion of the expert’s testimony.  The court determined that the doctor was prejudiced by not being allowed to offer expert testimony on the applicable industry standards.  Thus, the trial court erred in excluding the expert testimony.


A claim of failure to take proper steps to obtain a patient’s consent is a medical malpractice claim, requiring a health care affidavit under § 538.225.  Crider v. Barnes-Jewish St. Peters Hospital, Inc., No. 96907 (Mo. App. E.D., January 17, 2012), Crane, P.J.

Plaintiff, a deaf woman, was admitted to Defendant Hospital to give birth.   She had notified the hospital that she wanted to have a natural childbirth, without an epidural or other medication.  While Plaintiff was at the hospital, the staff encouraged her to have an epidural, but did not provide her with American Sign Language interpretation services to explain why the hospital felt an epidural was necessary, or to explain the risksthereof.   Plaintiff claimed that she mistakenly believed that the epidural was medically necessary, and gave uninformed consent. Thereafter, Plaintiff alleged that she suffered pain and disabling symptoms from the epidural. She filed a claim against the hospital under the Missouri Human Rights Act, for violation of her rights.  Following the hospital’s motion to dismiss for failing to file a health care affidavit, the trial court granted Plaintiff ten days to do so. Plaintiff refused, maintaining that her claim was not a medical malpractice claim and, as such, no health care affidavit was required.  The trial court dismissed Plaintiff’s petition, and Plaintiff appealed.

Held.
  Affirmed.   UnderWuerz v. Huffaker, 42 S.W.3d 652, 656 (Mo. App. 2001), the court held “if a physician obtains a patient’s consent, but the patient claims the physician failed to make an appropriate disclosure of risks and benefits, the action is in medical malpractice based on the physician’s negligence to meet a recognized standard of care in obtaining the patient’s consent.”  Therefore, regardless of how Plaintiff characterized her claim, it was nevertheless a claim for medical malpractice requiring a health care affidavit under § 538.225, RSMo.  As such, the trial court did not err in dismissing Plaintiff’s claim for failing to provide the required affidavit.


With respect to past transactions, application of retrospective laws that take away or impair vested or substantial rights under existing laws are violative of the Missouri Constitution.   Good Hope Missionary Baptist Church v. St. Louis Alarm Monitoring Company, Inc., No. 96409 (Mo. App. E.D., January 24, 2012), Norton, J.

Due to a fire at its premises, Plaintiff pursued a claim against its alarm company for negligent monitoring of the alarm system. Plaintiff sent a demand letter in January 2005 pursuant to the then-existing pre-judgmentinterest statute. Plaintiff filed suit 11 months later in December 2005.  During that 11-month period, the MissouriGeneral Assembly amended the pre-judgment interest statute,  and determined that it would apply to all cases filed after August 28, 2005. Following a jury verdict in favor of Plaintiff, and the trial court’s award of pre-judgment interest under the old statute, the alarm company appealed. The alarm company argued that § 538.305 clearly states that the new pre-judgment interest statute applies to all causes of action filed after August 28, 2005.  Since Plaintiff did not file suit until December 2005, the alarm company maintained that Plaintiff’s cause of action was subject to the new statute.  The new statute required suit to be filed within 120 days after receipt of a demand letter in order for a plaintiff to recover pre-judgment interest.  Thus, the alarm company contended that it was not liable for pre-judgment interest since Plaintiff’s suit was filed 11 months after receipt of the demand letter.

Held
.   Affirmed.   The court of appeals made a distinction between laws that take away or impair substantive rights retroactively, and laws that are merely procedural changes applied to an existing cause of action.   The former category violates the ban on retrospective laws found in Article I, § 13 of the Missouri Constitution. Application of the new pre-judgment interest statute in this case falls into that category, and is constitutionally impermissible, because it would retrospectively take away a substantive right of Plaintiff – the right to recover pre-judgment interest.  Plaintiff’s right to recover pre-judgment interest accrued in March 2005, 60 days after the demand was sent and not met by Defendant, but before the new statute took effect. Therefore, the trial court did not err in awarding pre-judgment interest under the old statute.