                                                  In the
                              Missouri Court of Appeals
                                         Western District
CYNTHIA L. WATERS,                                      )
                                                        )
                   Appellant,                           )   WD77843
                                                        )
v.                                                      )   OPINION FILED: October 13, 2015
                                                        )
MERITAS HEALTH CORPORATION                              )
D/B/A NORTHLAND CARDIOLOGY                              )
AND JAMES H. MITCHELL, M.D.,                            )
                                                        )
                  Respondents.                          )

                  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.
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;

                                              2
       •        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.,

                                             3
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.

                                               4
      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

                                           5
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."



                                              6
       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



                                             7
advertisements, such that she was deprived of a fair trial. The trial court denied her

Motion for New Trial. Waters now appeals.

       In Point I, Waters argues that the failure to submit Instruction A was in error and,

in Point II, Waters claims that she was denied a fair trial due to the advertisements'

prejudicial effect on the jury.   For ease of analysis the court will first address the

threshold issue in Point II of whether Waters was deprived of a fair trial by improper

contact with the jury.

                                        POINT II

       In Point Two, Waters argues the trial court erred in refusing to grant her Motion

for Mistrial or, alternatively, in failing to grant her Motion for a New Trial, because

attempts were made by entities closely affiliated with Respondents to improperly

influence the jury by the placement of advertisements containing information that would

not have been admissible at trial and these advertisements were actually seen and

discussed by jurors during trial. Waters argues that such acts should result in presumed

prejudice and thereby shift the burden of showing the absence of prejudice to

Respondents, and that Respondents failed to sustain this burden. Accordingly, Waters

argues she was deprived of a fair trial and the cause should be remanded for a new trial.

                                   Standard of Review

       "It has been consistently and uniformly held in this state that the granting of a new

trial on the grounds of juror [or party] misconduct lies within the sound discretion of the

trial court." Berry v. Allgood, 672 S.W.2d 74, 78 (Mo. banc 1984) (citations omitted).

This is because "[t]he trial court hears the evidence concerning the alleged misconduct

                                             8
and is, therefore, in the best position to determine the credibility and intent of the parties

and to determine any prejudicial effect of the alleged misconduct." Mathis v. Jones Store

Co., 952 S.W.2d 360, 364 (Mo. App. W.D. 1997).

       The trial court abuses its discretion when:

       [A] ruling is clearly against the logic of the circumstances then before it and
       is so arbitrary and unreasonable as to shock the sense of justice and indicate
       a lack of careful consideration. The denial of a new trial would be an abuse
       of discretion if it were based on findings not substantially supported by the
       record.

St. Louis Cty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116, 134 (Mo. banc

2013) (internal citations omitted). "In reviewing a trial court's order denying a motion for

a new trial, the evidence is viewed in a light most favorable to the trial court's order." Id.

"[I]n the final analysis, every case rests upon its own particular facts and a large

discretion is rightly vested in the trial judge who sits as an intimate observer of the whole

chain of events." Mathis, 952 S.W.2d at 364 (quoting Sunset Acres Motel, Inc. v. Jacobs,

336 S.W.2d 473, 479 (Mo. 1960)).

                                          Analysis

       On this issue of first impression, Waters and Respondents disagree about the

standard of review which applies to the conduct at issue. Waters argues that a deliberate

advertising campaign, which reaches the jury, is analogous to cases involving deliberate

juror misconduct where, for example, a juror has taken it upon themself to gather

evidence outside of trial. In such cases, prejudice is ordinarily presumed and the burden

shifts to the respondent to overcome a presumption of prejudice. See Travis v. Stone, 66

S.W.3d 1, 3 (Mo. banc 2002); McBride v. Farley, 154 S.W.3d 404, 409-10 (Mo. App.

                                              9
S.D. 2004). The burden-shifting presumption of prejudice has been consistently applied

where a juror actively seeks out extrinsic evidence pertaining to the issues at trial. See

Douglass v. Mo. Cafeteria, Inc. 532 S.W.2d 811, 813 (Mo. App. 1975) (trial court's

decision to grant new trial on basis of juror misconduct upheld where jurors visited scene

of plaintiff's slip-and-fall for the purpose of gaining information to help in deciding the

case and then discussed observations with other jurors); Stotts v. Meyer, 822 S.W.2d 887,

890-91 (Mo. App. E.D 1991) (trial court's denial of new trial reversed where juror visited

the scene of the accident, made observations, and reported his observations to other

jurors). However, in these cases the juror has intentionally and directly violated the

instructions of the court as to conduct which is legally prohibited.

       This court finds this analogy less than persuasive. Respondents and Waters agree

that this is not a case where a juror has deliberately set out to gather facts extrinsic to

trial. In such cases, strong prejudice is presumed because it involves "reprehensible

conduct" directly contrary to the court's instructions to the jury that "evidenc[es] a

disposition not to be governed by the evidence adduced at court [ . . . . ]" Middleton v.

Kansas City Pub. Serv. Co., 152 S.W.2d 154, 158 (Mo. 1941). No such violation of the

jury instructions is present here where the advertisement literally landed on the juror's

driveway or in their mailbox.            Accordingly, no such presumption of prejudice is

warranted. Therefore, this issue should not be governed by cases that involve deliberate

extrinsic research or investigation by a juror.

       The facts here fit more closely with cases in which there has been contact between

a juror and a party to the litigation.

                                                10
        The appropriate test for juror and party misconduct is as follows:

        Parties and jurors should avoid all appearance of evil, and if any contact
        motivated by improper design appears, the jury should ordinarily be
        discharged or a new trial granted, regardless of the existence of actual
        prejudice. Accidental and casual contacts with jurors are of rather common
        occurrence and often unavoidable. If the contact has been wholly innocent,
        a mistrial should not ordinarily be granted unless it can reasonably be found
        that there was some improper influence on the jury. Where a juror, by
        some inquiry or voluntary statement has raised a question as to his
        impartiality, the question becomes essentially one of fact, and primarily this
        decision rests with the trial court.

Mathis, 952 S.W.2d at 364 (quoting Sunset Acres Motel, Inc., 336 S.W.2d at 479

(emphasis added)).

        The first stage of the inquiry is to determine whether there was contact with the

jury motivated by improper intent. First, the only contact at issue is the receipt by at least

one juror of a newspaper advertisement featuring Dr. Mitchell in the 816 (Northland)

section of The Kansas City Star.2 The trial court explicitly found that the website

featuring the testimonial of Dr. Mitchell's patient promoted in the advertisement was not

at issue. The juror who was observed with a copy of the advertisement in the courthouse

stated that he had not been to the website. The juror did state that other jurors had seen

the advertisement and had discussed it. The juror further stated that nothing in the

advertisement would affect his ability to be fair to both parties in the action. Based on

the trial court's ruling, the trial court was satisfied that the juror was being truthful in this

assurance.



        2
           The advertisement was paid for by North Kansas City Hospital. North Kansas City Hospital is not a party
to the action, but is the owner of Meritas, which is a named defendant. Meritas is the entity which holds ownership
of the various medical practices that have been purchased from doctors by North Kansas City Hospital.

                                                        11
         In addition, the trial court indicated it was satisfied that no juror would have been

on the website, given the trial court's instructions not to go online.                                     Counsel for

Respondents suggested that perhaps each of the jurors should be questioned regarding

who had seen the advertisement to determine any prejudice, but counsel for Waters did

not support that course of action as he thought it could draw additional attention to and

aggravate the issue. Finally, there is no evidence in the record that any juror saw the

second advertisement, featuring Dr. Hawa, and neither counsel requested that jurors be

questioned regarding this advertisement. Accordingly, we are left only with evidence

that one and likely additional members of the jury saw the newspaper advertisement in

The Kansas City Star.

         Here, there was no evidence beyond conjecture that North Kansas City Hospital,

Meritas, Dr. Mitchell or any other individual deliberately orchestrated an advertising

campaign with the intention that it reach or influence the jury during trial.3 All of the

evidence in the record suggests to the contrary. The evidence before the court was that

Dr. Mitchell was unaware that the advertisements would be published or disseminated

during trial and that he was not aware the website with the testimonial was still available

online. Dr. Mitchell was not involved with making decisions regarding the marketing

campaign.

         Numerous affidavits support Respondents' contention that none of Meritas'

employees were responsible for or knowledgeable about the timing or content of the

         3
           Certainly, if such a coincidence would occur during any future trials involving North Kansas City
Hospital or its subsidiaries or affiliates, the trial court in that matter may consider the events of this trial in making
its determination as to the intent of the parties.

                                                            12
publication of the newspaper advertisement. They were not responsible for planning and

played no role in the scheduling of the advertisement. In addition, affidavits from

management at North Kansas City Hospital indicate that an outside advertising agency

was responsible for the campaign and that no one at North Kansas City knew the

advertisements were scheduled to run during the trial. The advertisements were part of a

comprehensive advertising campaign for North Kansas City that featured additional

medical specialties as well. Apart from conjecture, Waters has presented no evidence

that the advertisements were a deliberate strategy concocted by any of the Respondents or

North Kansas City aimed at improperly influencing the jury. The trial court, being in the

best position to judge the credibility and intent of the parties, did not find intentional

contact motivated by improper design. This court defers to the trial court's finding on

this issue.

       Because the contacts were not motivated by improper design but accidental, the

question then becomes whether the contact had an improper influence upon the jury such

that a new trial is warranted. The burden is on Waters to show that the contact resulted in

an improper influence on the jury. Berry, 672 S.W.2d at 78. Waters concedes that if it is

her burden to show an improper influence upon the jury, her point must fail. We agree.

       As explained above, the one juror known to have seen the advertisement was

asked about whether it would have any impact on his ability to fairly and impartially

decide the case. He stated that it would not have an impact and he could do so. The trial

court found this testimony credible. This juror stated that he was aware that other

members of the jury had seen the advertisement as well. However, given the opportunity

                                            13
to inquire further, Waters's counsel decided against questioning the individual jurors for

fear of exacerbating the issue. This may have been a reasonable strategic decision, but it

also means that Waters cannot now claim that additional jurors may have been

improperly influenced, as she waived the opportunity to timely discover this information.

See Polen v. Kansas City Chip Steak Co., 404 S.W.2d 416, 422 (Mo. App. 1966) ("One

cannot complain in an appellate court that an action of the trial court was error if he

himself invited that action and acquiesced in it."); G.H. v. Eli Lilly & Co., 412 S.W.3d

326, 332 (Mo. App. W.D. 2013) ("It is axiomatic that a 'party cannot lead a trial court

into error and then ...' lodge a complaint about the action.")

         There is no evidence in the record before this court that any juror was unable to

fulfill his or her responsibilities fairly and impartially. We cannot say the trial court

abused its discretion in denying Waters's Motion for a New Trial on these grounds.4

         Point II is denied.

                                                      POINT I

         In Point One, Waters argues the trial court erred in denying her tendered

Instruction A because she made a submissible case of negligence, as stated in Instruction

A, in that the jury heard substantial evidence from Dr. Mitchell that supported a broader

theory of negligence than was included in the verdict directing instruction actually given



         4
            Waters combines here arguments regarding the purported error of the trial court's refusal to grant a new
trial with the court's refusal to grant a mistrial. "A mistrial is a drastic remedy. The decision to grant a mistrial is
largely within the discretion of the trial court, and we will reverse a denial of a motion for mistrial only when there
has been a manifest abuse of discretion. A manifest abuse of discretion occurs only when the error is so grievous
that the prejudice cannot be removed." Peel v. Credit Acceptance Corp., 408 S.W.3d 191, 215 (Mo. App. W.D.
2013) (internal citations omitted). For the reasons stated above, the trial court also did not err in failing to grant a
mistrial.

                                                           14
to the jury, thereby depriving Waters of the right to have the jury consider her theory of

the case as supported by the evidence.

                                     Standard of Review

       The determination of whether a jury was instructed properly is a question of law,

which this court reviews de novo. Barkley v. McKeever Enters., Inc., 456 S.W.3d 829,

836 (Mo. banc 2015) (citing Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 13 (Mo.

banc 2013)). That review considers the evidence "in the light most favorable to the

submission of the instruction, and if the instruction is supportable by any theory, then its

submission is proper." Id. (citing Bach v. Winfield–Foley Fire Prot. Dist., 257 S.W.3d

605, 608 (Mo. banc 2008)). "Any issue submitted to the jury in an instruction must be

supported by substantial evidence 'from which the jury could reasonably find such

issue.'" Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010) (quoting Kauzlarich v.

Atchison, Topeka, & Santa Fe Ry. Co., 910 S.W.2d 254, 258 (Mo. banc 1995)).

"Substantial evidence is evidence which, if true, is probative of the issues and from which

the jury can decide the case." Id.

                                          Analysis

       Waters contends in Point I that the jury should have been allowed to find that Dr.

Mitchell was negligent, not only in his treatment of Robert's left coronary artery, but also

in his treatment of the circumflex artery. As stated by Waters, "[p]rior to the last day of

trial, the case focused on Rob Waters's left main coronary artery, which Plaintiff

contended had been dissected by Dr. Mitchell, that Dr. Mitchell failed to recognize that

that had happened and, as a result, an obstruction in the left main coronary artery caused

                                            15
blood flow to the heart to cease or decrease, causing a heart attack." Waters argues that

Dr. Mitchell offered testimony, on the final day of trial, which, when combined with

other evidence adduced at trial, supports the submission of Instruction A. Instruction A

would have broadened Waters's theory of negligence to include the failure to timely

recognize and treat obstructions "to the heart that occurred during catheterization" rather

than just obstructions "in the left main coronary artery."5

         In order to demonstrate a prima facie claim for medical malpractice, Waters had to

"establish that (1) an act or omission of defendant failed to meet the requisite medical

standard of care, (2) the act or omission was performed negligently, and (3) there was a

causal connection between the act or omission and plaintiff's injury." Laws v. St. Luke's

Hosp., 218 S.W.3d 461, 466 (Mo. App. W.D. 2007) (quoting Sheffler v. Arana, 950

S.W.2d 259, 267 (Mo. App. W.D. 1997)). "The general rule requires that Plaintiffs put


         5
            Respondents cite Rule 59.01(b) in arguing that that Dr. Mitchell's responses to Waters's Requests for
Admissions removed from trial the issues of the failure to timely recognize and treat the circumflex dissections and
their supposed role in causing the cardiac arrest. We disagree. Respondents are correct that Rule 59.01(b) is
designed to remove certain issues from trial, and the rule accomplishes this by conclusively establishing admitted
facts unless the court on motion permits withdrawal or amendment of the admission. The rule is not as conclusive
as argued by Respondents. As an example, where a fact is stipulated, the party relying upon that fact is not
foreclosed from offering evidence to prove the fact. See State v. Hahn, 35 S.W.3d 393, 396 (Mo. Ct. App. E.D.
2000) (right to offer evidence is not extinguished by a stipulation of fact). In addition, "the rule accords
conclusiveness to admissions so that a party may rely on the fact that the admission binds the party addressed,
unless the court permits withdrawal or amendment of the admission." Felton v. Hulser, 957 S.W.2d 394, 397 (Mo.
App. W.D. 1997) (emphasis added). As stated by Felton, the purpose of admissions is to bind the party addressed.
The rule does not prevent the proponent of a request for admission from obtaining conflicting evidence at trial. At
that point, the issue becomes an issue of fact for the jury to resolve. See Killian Constr. Co. v. Tri-City Constr. Co.,
693 S.W.2d 819, 827 (Mo. App. W.D. 1985) (explaining that an admission made or deemed under Rule 59.01 is
similar to an admission by a party in a pleading, and the admission does not bind the declarant when the adversary
gives it no reliance but becomes an issue of fact to be decided by the jury). This same principal has been applied to
judicial admissions and admissions in a pleading. See, e.g., Vaughn v. Michelin Tire Corp., 756 S.W.2d 548, 557
(Mo. App. S.D. banc 1988); Klein v. Kerr, 272 S.W.3d 896, 901 (Mo. App. S.D. 2008); Piel v. Piel, 918 S.W.2d
373, 376 (Mo. App. E.D. 1996); Plemmons v. Pevely Dairy Co., 233 S.W.2d 426, 434 (Mo. App. St.L. 1950). Of
course, such a rule could lead to abuse, where a party, for example, seeks to induce the party opposite to assume a
position that he would not have assumed and then at the last minute changes his theory of the case. In such
instances, it is possible that the party could be estopped from denying an admission propounded by him and
admitted by an opponent. See Plemmons, 233 S.W.2d at 434. No such allegation has been made here.

                                                          16
forth expert medical testimony establishing the appropriate standard of care" but the

standard may also come from the defendant himself. Redel v. Capital Region Med. Ctr.,

165 S.W.3d 168, 172-73 (Mo. App. E.D. 2005) (citing Delisi v. St. Luke's Episcopal–

Presbyterian Hosp., Inc., 701 S.W.2d 170, 173 (Mo. App. E.D. 1985)). Regarding the

standard of care, medical negligence is "the failure to use that degree of skill and learning

ordinarily used under the same or similar circumstances by members of defendant's

profession." Hickman v. Branson Ear, Nose & Throat, Inc., 256 S.W.3d 120, 122 (Mo.

banc 2008) (citing MAI 11.06). This standard provides the basis for questioning an

expert as to the standard of care and whether that standard has been met. Id. Stated

another way,

       [i]n professional negligence cases, including actions against doctors, the
       specific duty is defined by the profession, itself. That is, an expert witness
       is generally necessary to tell the jury what the defendant should or should
       not have done under the particular circumstances of the case and whether
       the doing of that act or the failure to do that act violated the standards of
       care of the profession (and, thus, constituted negligence).

Ostrander v. O'Banion, 152 S.W.3d 333, 338 (Mo. App. W.D. 2004).

       The decisive issue here is whether Waters actually obtained evidence sufficient to

establish the appropriate standard of care and the alleged violation thereof by Dr.

Mitchell. Waters claims that Dr. Mitchell provided the necessary standard of care in his

testimony on the final day of trial. That testimony was as follows:

       Q.     [To Dr. Mitchell] Failure to timely recognize and treat physician-
       caused coronary artery obstructions in 10 to 15 percent of the heart would
       be below the standard of care? Do you agree or disagree?
       A.     [By Dr. Mitchell] Well, in a hypothetical patient, if it was an
       intervenable artery, then yes, I guess you could agree with that but not in
       Mr. Waters.

                                             17
This is the sole support for Waters's attempt to establish the standard of care regarding

Dr. Mitchell's treatment of the circumflex artery: the statement from Dr. Mitchell which

expressly states that the proposition set forth by Waters is inapplicable to Robert. Dr.

Mitchell's testimony does not support that he in fact failed to meet the standard of care in

treating Robert. Waters pieces together testimony from Dr. Mitchell to show that Dr.

Mitchell (1) recognized the obstruction in the circumflex artery, (2) knew it was blocking

10 to 15 percent of the blood flow to the heart, and (3) knew the artery was intervenable;

however, this does not negate Dr. Mitchell's express disavowal that the failure to

recognize and/or treat the obstruction fell below the standard of care in Robert's case.

       This court cannot know the reason why Dr. Mitchell testified that even though he

generally agreed with the proposition that the proposition did not apply to Robert because

neither party asked him to further explain his answer. Dr. Mitchell's testimony suggests

that two reasons could have been that (1) Robert's heart was co-dominant and (2) Dr.

Mitchell did not believe the relevant artery was intervenable.        However, we cannot

speculate regarding all of the possible reasons for this belief. The point is that the

standard of care applicable to Dr. Mitchell's treatment of the circumflex artery, under the

circumstances similar to Robert's case, was never established, through the testimony of

Dr. Mitchell or through other expert testimony.

       Waters's own retained expert, Dr. Robert Safian ("Dr. Safian"), testified only that

he did not believe that Dr. Mitchell's actions fell below the appropriate standard of care

with regard to causing the dissection in the circumflex artery. It does not appear Dr.


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Safian was asked about the standard of care with regard to recognition and treatment of

dissections to the circumflex artery. Waters's case prior to the last day of trial focused

entirely on the treatment of the left coronary artery. Waters has not identified any

testimony by Dr. Safian, or any other medical expert, regarding the standard of care for

the treatment of the circumflex artery under circumstances similar to Robert's or that Dr.

Mitchell's conduct fell below the standard of care. There simply was not substantial

evidence regarding the standard of care, and the alleged violation thereof, with regard to

the recognition and treatment of a dissection in the circumflex artery to support the

submission of Instruction A to the jury.

       In addition, Waters failed to establish the element of causation to support the

submission of Instruction A. "Any instruction submitted to a jury must be supported by

substantial evidence." Deckard v. O'Reilly Auto., Inc., 31 S.W.3d 6, 17 (Mo. App. W.D.

2000). "When a party relies on expert testimony to provide evidence as to causation

when there are two or more possible causes, that testimony must be given to a reasonable

degree of certainty." Super v. White, 18 S.W.3d 511, 516 (Mo. App. W.D. 2000).

"When an expert merely testifies that a given action or failure to act 'might' or 'could

have' yielded a given result, though other causes are possible, such testimony is devoid of

evidentiary value." Id.

       Waters relies on testimony from three witnesses to support her contention that the

"untreated dissection of Mr. Waters's circumflex artery caused or contributed to cause"

his death. However, none of the three witnesses testified to a reasonable degree of

medical certainty that the dissection of the circumflex artery did in fact cause or

                                            19
contribute to Robert's death. Dr. Bode prefaced his testimony by saying that cardiology

was not his area of expertise. While Dr. Bode did testify that if there was a significantly

decreased blood flow to the circumflex artery, it would contribute to cardiac arrest, he

never testified with any degree of medical certainty that the dissection of this artery did in

fact contribute to Robert's death. Similarly, Dr. Barr testified only that the dissection of

this artery "could have potentially" contributed to Robert's difficulties but also that he did

not think it caused Robert's arrest.       This equivocation is insufficient to establish

causation. See White, 18 S.W.3d at 516. Finally, Dr. Cummins testified that he was "not

a cardiologist or a forensic pathologist, so unless there's an autopsy showing what vessel

goes where, I don't know whether [the circumflex dissection] could have caused the death

or not." Dr. Cummins did not testify, to a reasonable degree of medical certainty, that the

dissection in the circumflex artery did in fact contribute or cause Robert's death.

Therefore, Waters failed to provide substantial evidence from which a jury could have

concluded that the dissection of the circumflex artery caused or contributed to Robert's

death. For this reason as well, the trial court did not err in refusing to submit Instruction

A to the jury.

       Finally, at the formal instruction conference, when Waters offered Instruction A,

the only argument made to the trial court to support the submission of this verdict

director was she "believe[s] the evidence supports the claims of both the failure to timely

recognize and treat obstruction of blood flow not only to the left main coronary artery but

also in the circumflex artery." This was the entirety of the argument made by Waters on

the record. Waters did not direct the trial court to the specific evidence adduced that she

                                             20
argues would support the submission of this new verdict directing instruction on a new

legal theory which arose on the final day of evidence.

      Accordingly, we hold the trial court did not err in refusing to submit Instruction A

to the jury because neither the standard of care nor causation was supported by

substantial evidence.

      Point I is denied.

                                    CONCLUSION

      The judgment of the trial court is affirmed.



                                         __________________________________
                                         Gary D. Witt, Judge

All concur




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