DocketNumber： SC90107
Judges： Price, Russell, Breckenridge, Fischer, Stith, Wolff, Teitelman
Filed Date： 5/25/2010
Status： Precedential
Modified Date： 11/14/2024
Nature of the Case
This is an appeal from a medical malpractice case that includes a spouse’s claim for loss of consortium. The jury rendered verdicts in favor of James and Mary Klotz
On appeal, the Klotzes claim application of § 538.210, RSMo Supp.2008, which reduced the cap on noneconomic damages for all suits filed after August 28, 2005, violates their rights under the Missouri Constitution. Specifically, they contend (1) application of the statute violates the prohibition of retrospective laws; (2) the statute violates the clear title and single subject clause; and (3) the statute violates multiple other constitutional provisions, including the rational basis requirement, the Equal Protection Clause, the prohibition against special legislation, the Due Process Clause, the right to open courts, the right to trial by jury and separation of powers.
Shapiro and MHG cross-appeal, alleging error in: (1) admitting evidence; (2) calculating damages; (3) limiting cross-examination; (4) allowing improper closing arguments; (5) instructing the jury; (6) denying a motion for a directed verdict; and (7) denying a motion for judgment notwithstanding the verdict.
The application of the new caps on non-economic damages to causes of action that accrued before the effective date of the law violates the constitutional prohibition of retrospective laws. The judgment is reversed, and the case is remanded.
Statement of Facts
James Klotz suffered sepsis, amputation, and organ failure in March 2004 when an implanted pacemaker became infected. He filed suit against SAMC for medical malpractice on December 14, 2004. On April 28, 2005, James Klotz amended his petition to include his wife, Mary Klotz, for loss of consortium. This action was voluntarily dismissed without prejudice on December 2, 2005. On December 4, 2006, James and Mary Klotz again filed suit against SAMC for medical malpractice and loss of consortium, and they amended their petition to add Dr. Shapiro and MHG as defendants on March 1, 2007. At the time of trial, the case was proceeding under the second amended petition filed March 13, 2008, which alleged that SAMC “failed to timely remove an IV catheter inserted into James Klotz’ right hand by EMS on 3/17/04, allowing phlebitis and/or an infection to develop at the IV site,” and failed to train its nursing staff. This second amended petition alleged that Dr. Shapiro and MHG “failed to adequately treat the phlebitis and/or infection in James Klotz’ right hand before implanting a permanent pacemaker on 3/22/04, resulting in the spread of infection to the pacemaker,” and “failed to inform plaintiff James Klotz of the heightened risk of infection caused by implanting the permanent pacemaker at the time of a presumed ongoing infection at the right wrist IV site.”
The case was tried to a jury in July 2008. The jury found SAMC, MHG, and Dr. Shapiro negligent in their medical treatment of James Klotz, and the jury assessed 33% of the fault to SAMC and the remaining 67% of the fault to Dr. Shapiro and MHG. The jury awarded Mr. Klotz damages totaling $2,067,000, which included $760,00,0 in noneconomic damages. The jury also awarded Mary Klotz damages totaling $513,000, which included $329,000 in noneconomic damages for loss of consortium.
Following post-trial motions, the trial court concluded that the award against SAMC is governed by the prior version of § 538.210’s noneconomic damages cap. The court concluded that the award against MHG and Dr. Shapiro is governed by the current version of § 538.210 as amended in 2005 by House Bill 393, which established a lower noneconomic damages cap of $350,000. Section 538.305 provides that this amended version of § 538.210
The trial court expressed its rationale for rejecting the argument that application of amended § 538.210 violated this constitutional prohibition against retrospective legislation. The trial court stated the legislature had cogent reasons to make the law retrospective; however, as to all of the other constitutional arguments, the court merely stated that those arguments “have been considered and DENIED.”
While many special interest groups filed amicus curiae briefs relating to the constitutional validity of amended § 538.210, it is clear from reading the trial court’s rulings that the trial court and the parties were keenly aware the resolution of this case likely turned on whether the prohibition against retrospective laws found at Mo. Const, art. I, sec. 13 applied to the facts of this case. The prior version of § 538.210, RSMo 2000, which included a noneconomic cap on damages in medical malpractice cases, set the cap at $350,000 and provided for an annual increase or decrease in accordance with the Implicit Price Deflator for Personal Consumption Expenditures published by the Bureau of Economic Analysis of the United States Department of Commerce. Further, it specifically provided the cap on noneconomic damages only applied to causes of action that arose on or after the statute’s effective date. For that reason, the original cap on non-economic damages in medical malpractice cases, § 538.235, RSMo 2000, was never challenged on the basis that it was in violation of the Missouri constitutional prohibition against retrospective laws. See Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992).
Analysis
This opinion will address the arguments necessary to resolve the dispute between the Klotzes, MHG and Dr. Shapiro.
Determination of a single issue resolves the Klotzes’ appeal: whether the constitutional prohibition on retrospective laws allows the legislature to change the substantive law for noneconomic damages after a cause of action has accrued. The issue is straightforward. When the malpractice accrued, the legislature had an established cap on noneconomic damages, and both Mr. and Mrs. Klotz were entitled to their own noneconomic damages up to that cap amount. But § 538.210 reduced the cap on noneconomic damages for all suits filed after August 28, 2005, without regard to causes of action that had already accrued prior to August 28, 2005.
It is well established that the Missouri Constitution prohibits laws that are retrospective in operation. Mo. Const, art. I,
It is settled law in Missouri that the legislature cannot change the substantive law for a category of damages after a cause of action has accrued. In Buder, when the legislature passed a law that increased the defendants’ exposure to more damages for wrongful death than existed at the time the cause of action accrued, this Court unanimously held the legislation was unconstitutional as applied under the constitutional prohibition of retrospective laws. 515 S.W.2d at 411. Similarly, when, as here, the legislature, contrary to this clearly established constitutional precedent, passes a statute that purports to decrease the amount of damages a victim of medical malpractice could recover after the cause of action has accrued, this Court is bound by Buder to find the statute unconstitutional as applied to the Klotzes. Therefore, the new noneconomic damages cap established by HB 393 may not be applied to a cause of action that accrued prior to August 28, 2005.
Dr. Michael Shapiro’s and Metro Heart Group’s Cross-Appeals
Point 1: Expert Testimony
Dr. Shapiro and MHG argue that the trial court erred in allowing Dr. Robert Clark to testify, contending Dr. Clark was not qualified to testify as an expert witness.
Standard of Review
The trial court’s decision whether to admit an expert’s testimony will not be disturbed on appeal absent an abuse of discretion. Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 129-130 (Mo. banc 2007). “A trial court will be found to have abused its discretion when a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. at 130 (citing McGuire v. Seltsam, 138 S.W.3d 718, 720 (Mo. banc 2004)).
Analysis
Dr. Shapiro and MHG offer three reasons to argue that the trial court erred in allowing Dr. Robert Clark to testify and offer expert opinions. First, they argue that Dr. Clark was not currently a licensed physician and, therefore, was not legally qualified to offer medical opinion testimony. Dr. Shapiro and MHG contend that the definition of “legally qualified” in § 538.225, RSMo Supp.2008, requires that the health care provider be licensed in the same profession to offer an affidavit certifying the merit of a case.
Dr. Shapiro and MHG further contend that because Dr. Clark was incapable of providing the required affidavit of merit under § 538.225, he should not have been permitted to testify at trial. Section 538.225 does not govern the admissibility of expert testimony at trial; rather, it requires that a plaintiff or a plaintiffs attorney file a health care affidavit from an expert stating that the defendant health care provider did not act as a reasonably prudent health care provider would have acted under similar circumstances. Satisfaction of § 538.225 is a condition related
Section 490.065, RSMo 2000, specifically governs the admissibility of expert witness testimony, and it states that a witness may be qualified as an expert by “knowledge, skill, experience, training, or education.” An expert may be qualified to testify on foundations other than licensure. Johnson v. State, 58 S.W.3d 496, 499 (Mo. banc 2001). To apply § 538.225’s definition of “legally qualified health care provider” to the question of the admissibility of expert testimony at trial would be to effectively rewrite the statute.
Second, Dr. Shapiro and MHG argue that the trial court erred when it allowed Dr. Clark to testify about issues related to the cardiology or electrophysiology standard of care because Dr. Clark lacked the qualifications to testify about that specialty. The trial court did not err in allowing Dr. Clark to testify. Section 490.065 is the standard for admitting expert testimony in civil cases. McGuire v. Seltsam, 138 S.W.3d at 720. As noted, pursuant to § 490.065, a witness is qualified as an expert by “knowledge, skill, experience, training, or education.” Dr. Clark completed an internal medicine residency and did specialty training in infectious disease and pulmonary disease. Dr. Clark treated Mr. Klotz when he was admitted to the hospital in Phoenix. The Klotzes’ attorney asked Dr. Clark numerous questions about whether the permanent pacemaker needed to be implanted immediately or whether Dr. Shapiro should have waited to implant the pacemaker until after determining whether Mr. Klotz had an infection. The testimony elicited related to the potential for infection when a pacemaker is implanted and the specific infection in this case. Dr. Clark testified about the standard of care when a temporary pacemaker is implanted and there is an infection or risk of infection. As an infectious disease specialist, this was well within his expertise.
Finally, Dr. Shapiro and MHG argue that MAI 11.06, which defines “standard of care” as the ordinary care of a defendant’s “profession,” requires that expert testimony at trial be limited to persons in the defendant’s specialty. No such requirement is recognized by this Court. As noted above, § 490.065 is the specific statute that determines the scope and admissibility of expert testimony in civil cases, and Dr. Clark was a qualified expert under this statute to provide the opinions about which he testified.
Points II and III: Evidence of Future Damages and Their Reduction to Present Value
Dr. Shapiro and MHG argue that the trial court erred in allowing testimony about projected future damages and future medical expenses because such evidence was speculative, highly prejudicial, and not reduced to present value.
Dr. Belz, an expert witness for the Klotzes with a specialty in preventive medicine and certification as a life care planner, testified about the future costs that were reasonable and necessary as a result of Mr. Klotz’s infection and sepsis. Counsel for Dr. Shapiro and MHG objected to Dr. Belz’s testimony about projected future damages on the basis that projected costs should be discounted to present value, but counsel did not object on the basis
Because Dr. Shapiro and MHG did not object on the basis that the testimony was speculative at trial, that issue is not preserved for this Court’s review. See Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 188-89 (Mo. banc 2009) (citing State v. Johnson, 207 S.W.3d 24, 43 (Mo. banc 2006)). Nevertheless, based on the record below, the admission of the expert testimony was not speculative and was well within the trial court’s discretion.
Dr. Shapiro and MHG argue that § 538.215, RSMo 2000, required the Klotzes to present the present value of the requested future damages. It is correct that § 538.215 states that the trier of fact is required to express future damages at present value, but there is no authority to support their argument that the Klotzes are obligated to present evidence as to present value.
In fact, this Court rejected a similar argument in Anglim v. Missouri Pacific R.R. Co., 832 S.W.2d 298, 308-09 (Mo. banc 1992). In Anglim, this Court recognized that future damages must be reduced to present value in F.E.L.A. cases but held that, because the jury was capable of making a present value reduction without aid of expert testimony, and because the defendant railroad was free to argue the need for the reduction to the jury, the plaintiff was not required to present evidence of present value as part of plaintiffs evidence of future damages. Id. This lack of any requirement of expert testimony to support a present value analysis of future damages was also recognized by this Court in Bair v. St. Louis-San Francisco Ry. Co., 647 S.W.2d 507, 513 (Mo. banc 1983), cert. denied, 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109 (1983), where this Court stated; “The fact that a dollar today is not the same thing as a dollar payable some years from now, furthermore, is the matter of plainest fact which could be appropriately argued without the need for expert testimony.”
There is no specific language in § 538.215 that requires the party plaintiffs to offer their evidence concerning the categories of future damages in terms of present value. Counsel for Dr. Shapiro and MHG admitted during oral argument that he could have offered evidence concerning the present value of the Klotzes’ future damages. The trial court specifically advised Dr. Shapiro and MHG that they had permission to tell the jury in closing argument that the Klotzes’ future economic damage figures were not reduced to present value and that any such award should be expressed at present value. Similarly, counsel for Dr. Shapiro and MHG could have addressed the issue of present value in closing argument but failed to do so.
Although defense counsel indicated an intention to argue to the jury that the future damages should be reduced to present value, no such argument was made. As this Court stated in Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 388
Point IV: Admission of Statements from Non-testifying Physicians
Dr. Shapiro and MHG argue that the trial court erroneously admitted into evidence out-of-court statements of two of Mr. Klotz’s treating physicians regarding the source of Mr. Klotz’s infection.
Standard of Review
The improper admission of hearsay evidence requires reversal only if such evidence was prejudicial. Dunn v. St. Louis-San Francisco Ry. Co., 621 S.W.2d 245, 252 (Mo. banc 1981).
Analysis
Dr. Shapiro and MHG argue that the trial court erred in admitting hearsay evidence. The statements at issue were admitted or alluded to during testimony at three points during trial.
First, the Klotzes’ attorney asked their expert witness, Dr. Siegal, an internist cardiologist with a Ph.D. in electrophysiology, about the treating physicians’ statements regarding the source of Mr. Klotz’s methi-cillin-resistant Staphylococcus aureus (MRSA) infection that were expressed in a consultation record. Dr. Shapiro’s attorney objected on the basis of hearsay. The trial court overruled the objection, allowing the consultation record to be admitted “to the extent that [the Klotzes’ attorney could] establish a foundation that experts rely on this kind of information in forming their opinions.” The Klotzes’ attorney then asked Dr. Siegal to explain two paragraphs in the consultation record. Dr. Siegal explained:
Severe endocarditis — That’s the infection of the lining that we discussed — ■ secondary to, meaning as a result of, pacemaker infection, infection of the permanent pacemaker, which likely occurred at the time of his implantation, that’s the implantation of the permanent pacemaker in March.
(Italicized portions indicating what Dr. Sie-gal read from the consultation record).
The second reference to the treating physicians’ opinions occurred when the attorney for Dr. Shapiro asked Dr. Siegal whether the treating physicians could have been deferring to Dr. Clark in forming their opinions about the cause of the infection. Dr. Siegal stated that it was “very possible” the treating physicians communicated with Dr. Clark because Dr. Clark worked at the same hospital, and, therefore, their opinions could have been based on deference to a colleague.
Attorney: My question to you is, don’t you think it’s logical for any doctor in Arizona seeing this patient on April 28th or 29th to presume at least as a starting point that this infectious process probably occurred at or near the time of the implantation, without knowing more?
Dr. Clark: That’s correct.
Attorney: So until you know more, that’s a good working presumption, fair to say?
Dr. Clark: Sure.
Attorney: Alright. And that would explain why the doctor in Arizona would have written that down, right?
Dr. Clark: I don’t know why they wrote it down. I never had any conversation with them.
Attorney: Alright. You didn’t have any conversation with them, but I think in your deposition you did tell us that you imparted my desires and concerns to [them] through your notes?
Dr. Clark: Yes.
Attorney: And certainly [the treating physicians] would have had access to your notes and your thought process from the records?
Dr. Clark: Correct.
Dr. Shapiro and MHG argue that the opinions of Mr. Klotz’s treating physicians were inadmissible hearsay.
The admissibility of business records is governed by § 490.680, RSMo 2000, which provides:
A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
“Medical records relating to observations, treatment, and diagnoses are generally admissible as business records.” Tendai v. Missouri State Bd. of Registration for Healing Arts, 161 S.W.3d 358, 366 (Mo. banc 2005), overruled on other grounds by Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423 (Mo. banc 2009). The consultation record in this case was related to diagnosis and treatment and, therefore, was admissible as a business record.
The trial court, however, allowed the record to be referred to and read on the basis of § 490.065.3 because the record was used as support for Dr. Siegal’s expert opinion testimony. Section 490.065.3 provides:
The facts or data in a particular case upon which an expert bases an opinion*765 or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
“The purpose of the ‘facts or data’ prong of the statute was to bring the legal practice in line with the standard practice exercised by experts in their respective fields.” Lauck v. Price, 289 S.W.3d 694, 699 (Mo.App.2009). “Medical experts are allowed to ‘rely on information and opinions of others provided that those sources are not offered as independent substantive evidence, but rather serve only as a background for his opinion.’ ” Id. “Medical records are the quintessential example of the type of facts or data reasonably relied upon by experts in the field of medicine.” Glidewell v. S.C. Mgmt., Inc., 923 S.W.2d 940, 951 (Mo.App.1996). Dr. Siegal and Dr. Clark both testified that the opinions of the treating physicians may have been influenced by Dr. Clark’s notes. The admission of the treating physicians’ statements was not in error.
Point V: Cross-Examination about Expert Witness Income
Dr. Shapiro and MHG argue that the trial court erred in refusing to allow them to question the Klotzes’ expert, Dr. Belz, about the amount of income he makes from his work as an expert witness.
Standard of Review
“It is well established that the extent and scope of cross-examination in a civil action is within the discretion of the trial court and ‘will not be disturbed unless an abuse of discretion is clearly shown.’ ” Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000) (citing Callahan v. Cardinal demon Hosp., 863 S.W.2d 852, 868-69 (Mo. banc 1993)).
Analysis
The Klotzes’ attorney sought in limine to bar Dr. Shapiro’s and MHG’s attorneys from questioning the Klotzes’ expert witness, Dr. Belz, about how much money he made from sources outside this case for his work as an expert witness. Dr. Shapiro and MHG suggest that the trial court refused to allow them to question Dr. Belz about this income. However, the trial court did not rule on the Klotzes’ motion in limine to bar such questions during cross-examination; instead the judge said she would look at the case law and determine whether such questions were permissible.
Here, neither abuse of discretion nor prejudice can be shown because Dr. Belz was in fact questioned about his general work as an expert witness and his specific work on this case. The attorney for SAMC asked Dr. Belz how many times a year he is contacted by attorneys about medical malpractice cases, how many depositions he has given in the past decade in legal matters, how many times he had testified at trial, and how much he charges per hour to review files and to give testimony in medical malpractice cases. The attorney also asked Dr. Belz several specific questions about this case, including his retainer fee, how much he billed the Klotzes’ attorney for additional work and how many hours he spent preparing for his deposition and trial testimony.
Point VI: Displaying Deposition during Closing Arguments
Dr. Shapiro and MHG argue that the trial court erred in allowing the Klotzes to show the jury a printed portion of Dr. Shapiro’s deposition during closing arguments because the deposition was not
Standard of Review
Counsel on both sides are permitted wide latitude and discretion in referring to evidence and arguing inferences during closing argument. Nelson, 9 S.W.3d at 606. Generally, the trial court’s rulings on closing arguments are reviewed for abuse of discretion. Trimble v. Pracna, 167 S.W.3d 706, 715 (Mo. banc 2005) (citing Nelson, 9 S.W.3d at 606).
Analysis
As part of his closing argument, the Klotzes’ attorney showed the jury a portion of Dr. Shapiro’s deposition stating that he had prescribed an antibiotic on the presumption that there was an infection involved. Dr. Shapiro and MHG argue that this deposition was never entered into evidence, and, therefore, the trial court erred in allowing it to be used during closing arguments.
In fact, the portion of Dr. Shapiro’s deposition at issue had been read, without objection, during the testimony of defense expert Dr. Beshai. “When evidence of one of the issues in the case is admitted without objection, the party against whom it is offered waives any objection to the evidence, and it may be properly considered even if the evidence would have been excluded upon a proper objection.” Reinert v. Dir. of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995). Dr. Shapiro and MHG failed to make a timely objection to the use of Dr. Shapiro’s deposition when it was first read at trial; therefore, they waived their objection to the use of the deposition during closing arguments.
Point VII: Jury Instruction
Dr. Shapiro and MHG argue that Jury Instruction 9, the verdict director, was improper because the words “added risk of infection” are vague, overbroad and resulted in a roving commission.
Standard of Review
Whether a jury was instructed properly is a question of law that this Court reviews de novo. Bach v. Winfield-Foley Fire Protection Dist., 257 S.W.3d 605, 608 (Mo. banc 2008) (citing Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003)). Review is conducted 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 Oldaker v. Peters, 817 S.W.2d 245, 251-52 (Mo. banc 1991)). Instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of the action. Id.
Analysis
“A ‘roving commission’ occurs when an instruction assumes a disputed fact or submits an abstract legal question that allows the jury ‘to roam freely through the evidence and choose any facts which suit [ ] its fancy or its perception of logic’ to impose liability.” Scanwell Freight Express STL, Inc. v. Chan, 162 S.W.3d 477, 482 (Mo. banc 2005) (citing Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 463 (Mo. banc 1998)). Instruction 9 stated:
In your verdict, you must assess a percentage of fault to defendants Michael Shapiro, MD and Metro Heart Group, whether or not St. Anthony’s Medical Center was partly at fault, if you believe:
First, defendant Michael Shapiro, MD either:*767 failed to properly treat the right wrist symptoms in connection with the placement of the permanent pacemaker, or
failed to inform James Klotz of an added risk of infection due to the right wrist signs and symptoms before implanting the permanent pacemaker, and
Second, defendant Michael Shapiro, MD, in any one or more respects submitted in paragraph First, was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage to Plaintiff James Klotz.
Dr. Shapiro and MHG contend that the phrase “added risk of infection” was so vague that it allowed the jury to impose liability based on facts not supported by the evidence. A verdict director, like an instruction, should not misdirect, mislead, or confuse the jury. Edgerton v. Morrison, 280 S.W.3d 62, 67 (Mo. banc 2009). The issue is whether the phrase as used in the verdict director was misleading in the context of the evidence at trial. Id. at 66. Dr. Shapiro and MHG fail to explain adequately how the instruction prejudiced them and do not explain what is vague about the term “added risk of infection” or how the jury might have misinterpreted it. Nevertheless, it is clear based on a review of the record that the phrase “added risk of infection” was explained thoroughly by the expert testimony at trial.
Where the testimony in a case explains a phrase used in the verdict director, there is no “roving commission.” Id. at 67. Here, the Klotzes’ expert, Dr. Siegal, and Dr. Shapiro both testified about the possibility that an infection at the IV site could increase the risk of infection when the pacemaker was implanted. The expert testimony sufficiently explained the phrase “added risk of infection,” and this phrase was understandable to a jury without further definition.
Point VIII: Overruling the Motion for Mistrial
Dr. Shapiro and MHG argue that the trial court erred in overruling their motion for mistrial when the jury was deadlocked and in providing a second “hammer” instruction.
Standard of Review
Whether a jury was instructed properly is a question of law that this Court reviews de novo. Bach, 257 S.W.3d at 608 (citing Harvey v. Washington, 95 S.W.3d at 97). The decision, in the face of a deadlock in civil cases, to declare a mistrial or urge the jury to continue deliberating is within the discretion of the trial court. Nash v. Plaza Elec., Inc., 363 S.W.2d 637, 641 (Mo.1962). Further, instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of the action. Bach, 257 S.W.3d at 608. Oral instructions that encourage a civil jury to reach a verdict are proper so long as they do not coerce the verdict. Nash, 363 S.W.2d at 641.
Analysis
The jury began deliberations at 11:00 a.m., and at 3:55 p.m. the jury sent a note to the judge stating, “We as 8 juror[s] have come to an agreement. 1 juror is holding out. 3 are not in agreement. We are at a standstill.” At 4:10 p.m., the judge, without objection, sent an instruction reading:
You should make every reasonable effort to reach a verdict, as it is desirable that there be a verdict in every case. Each of you should respect the opinions of your fellow jurors as you would have*768 them respect yours, and in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict. Do not be afraid to change your opinion if the discussion persuades you that you should. But a juror should not agree to a verdict that violates the instruction of the Court, nor find as a fact that which under the evidence and his/her conscience he/she believes to be untrue.
Shortly thereafter, the jury sent a second note asking for the “Life Care Report,” which was provided. At 5:15 p.m. the jury sent a third note, stating “Juror # 2 will not come to a reasonable conclusion. Will only settle for 3,000,000 and we as 8 feel 2.5 is adequate.” At this point, Dr. Shapiro and MHG requested a mistrial because of deadlock. The court refused to grant a mistrial. The trial judge told the attorneys that she either could bring the jurors into the courtroom or go to the jury room with the court reporter. The attorneys responded that they were at the court’s discretion, and none of the attorneys objected to the judge speaking to the jurors. The judge went to the jury room with the court reporter to urge the jury to continue to deliberate and try to reach a verdict. The judge told the jurors they could deliberate until 6 p.m. and, if they had not reached a verdict by then, they could return in the morning to continue deliberations. At 5:55 p.m., the jury returned its verdict, signed by nine jurors.
Dr. Shapiro’s and MHG’s attorneys did not object to the court’s encouragement that the jurors attempt to reach an agreement. This failure to object constitutes a waiver of them claim of error. Nash, 363 S.W.2d at 640. Furthermore, a court’s oral instructions to a jury regarding its duties and powers when a jury is deadlocked are proper. Id. at 641; Anderson v. Bell, 303 S.W.2d 93, 100 (Mo.1957). A court may remind jurors of the importance of reaching an agreement as long as the court’s commentary does not rise to the level of coercion. Nash, 363 S.W.2d at 641; Anderson, 303 S.W.2d at 100. Here, Dr. Shapiro and MHG do not point to any facts suggesting that the verdict was coerced, and there is no indication in the record that the verdict was coerced. It is undisputed that the judge gave the jurors the option to end deliberations for the day and return in the morning.
Dr. Shapiro and MHG contend that the trial court’s instructions to the jury were in error because they were not given to the jury in writing. A written “hammer” instruction modeled after MAI-CR1.10 (a criminal instruction) was given after the jury’s first note to the trial court. This instruction has been held to be appropriate in civil cases. See Klein v. General Elec. Co., 714 S.W.2d 896, 906 (Mo.App.1986). Dr. Shapiro and MHG suggest that, because the “hammer” instruction must be given in writing during criminal trials, all comments to the jury must be given in writing. This Court has repeatedly upheld the giving of oral instructions regarding the importance of reaching an agreement and reminding jurors of their duties and powers. See Nash 363 S.W.2d at 641; Anderson, 303 S.W.2d at 100.
Finally, Dr. Shapiro and MHG make the unsupported claim that by encouraging the jury to reach a verdict, the trial court violated their rights to due process and a fair trial. Dr. Shapiro and MHG do not explain how their constitutional rights were violated, nor do they cite
Point IX: Overruling the Motion for Directed Verdict and/or Motion for Judgment Notwithstanding the Verdict
Dr. Shapiro and MHG argue that the Klotzes did not make a submissible case because they failed to prove that the alleged negligence caused injury to Mr. Klotz; therefore, they contend, the trial court should have granted Dr. Shapiro’s and MHG’s motions for directed verdict and/or judgment notwithstanding the verdict.
Standard of Review
The standard of review of denial of a judgment notwithstanding the verdict is essentially the same as for review of the overruling of a motion for directed verdict. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). A case may not be submitted unless each and every fact essential to liability is predicated on legal and substantial evidence. Id. (citing Houghton v. Atchison, Topeka & Santa Fe R.R. Co., 446 S.W.2d 406, 409 (Mo. banc 1969)). In de termining whether the evidence was sufficient to support the jury’s verdict, the evidence is viewed in the light most favorable to the result reached by the jury. Id. This Court will reverse the jury’s verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury’s conclusion. Id.
Analysis
Dr. Shapiro and MHG argue that the Klotzes failed to prove any causal connection between the alleged negligence and the injury that was claimed, and they contend that the expert testimony on which the Klotzes relied was mere conjecture or speculation. Viewing the evidence in the light most favorable to the jury’s verdict, it is clear that the evidence presented was sufficient to support the jury’s conclusion.
Two experts, Dr. Siegal and Dr. Clark, testified that Dr. Shapiro’s actions were below the standard of care. Dr. Siegal testified that Dr. Shapiro’s failure to treat Mr. Klotz’s wrist infection in a timely manner with antibiotics or to obtain an infectious disease consultation was below the standard of care and that Dr. Shapiro’s failure to inform Mr. Klotz of an added risk of infection due to the wrist condition was also below the standard of care. Dr. Siegal further testified that these failures directly caused or contributed to cause the pacemaker infection, sepsis and amputation. Dr. Clark testified that Dr. Shapiro’s failure to treat the wrist infection in a timely manner with antibiotics or to get an infectious disease consultation before implanting the pacemaker was below the standard of care and that this failure caused or contributed to cause the pacemaker infection, sepsis and amputation.
The verdict director stated that the jury must assess a percentage of fault against MHG and Dr. Shapiro if they believed that Dr. Shapiro either failed to properly treat Mr. Klotz’s right wrist symptoms or failed to inform Mr. Klotz of an added risk of infection due to the right wrist condition. Dr. Siegal testified that Dr. Shapiro should have informed Mr. Klotz that there was a risk of infection if the pacemaker was implanted immediately rather than after several days of intravenous antibiotics. “[Ojnce the jury is told what a proper warning would have consisted of, it knows what the patient would have known when deciding what course to follow, and thus it has all the information it needs to make the determination as to
Wilkerson v. Mid-Am. Cardiology, 908 S.W.2d 691, 698-99 (Mo.App.1995). The jury had sufficient evidence to determine that all of the alternative theories of liability set forth in the verdict directing instruction were supported by the evidence.
Point X: Speculative Evidence
Dr. Shapiro and MHG argue that the trial court erred in allowing evidence that was speculative, to their detriment and prejudice.
Standard of Review
Trial courts have broad discretion over the admissibility of evidence, and appellate courts will not interfere with those decisions unless there is a clear showing of abuse of discretion. Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003); Nelson, 9 S.W.3d at 604.
Analysis
Dr. Shapiro and MHG argue that the trial court erred in allowing testimony regarding Dr. Shapiro’s knowledge of SAMC’s infection rates, claiming that such evidence was speculative and assumed facts not in evidence. Two witnesses, Dr. Clark and Dr. Septimus, testified about whether Dr. Shapiro would have seen an antibiogram in his role as a doctor at SAMC. Antibiograms are reports that detail data about the number and type of infections at a specific hospital. Dr. Clark testified that, in his experience, such data was normally shared with doctors at his hospital. Dr. Septimus testified that, in his experience, such data is given to doctors at the end of the year. Counsel for Dr. Shapiro and MHG objected to this testimony on the bases of speculation and lack of foundation.
The fact that Dr. Shapiro denied knowledge of this data did not preclude admission of this evidence. The jury was free to disbelieve Dr. Shapiro’s denial of knowledge. See Georgescu v. K Mart Corp., 813 S.W.2d 298, 299 (Mo. banc 1991). Further, this information was relevant to show how Dr. Shapiro could have discovered the risk of an MRSA infection and used this information to help Mr. Klotz make an informed decision about proceeding with surgery. The testimony of both experts was based on their personal experiences as doctors regarding the accessibility of anti-biogram reports in hospital settings. The evidence was not speculative. The fact that Dr. Shapiro may not have appropriately appreciated the extent of the risk of infection does not make inadmissible evidence showing that he should have understood that risk. The trial court did not err in admitting this testimony.
Point XI: Testimony about Medical Bills
Dr. Shapiro and MHG argue that the trial court erred in allowing evidence to be presented about medical bills that had not been paid or had been adjusted on behalf of the Klotzes. Dr. Shapiro and MHG argue that the trial court ignored the requirements of § 490.715.5(2), RSMo 2000, which they claim creates a presumption that the amount paid to a medical provider represents the value of medical treatment rendered and, therefore, the court must present the lesser amount to the jury. In other words, Dr. Shapiro and MHG read into § 490.715.5(2) an irrebuttable presumption even though the statute expressly provides for a rebuttable presumption.
In relevant part, § 490.715.5 provides:
(1) Parties may introduce evidence of the value of the medical treatment rendered to a party that was reasonable,*771 necessary, and a proximate result of the negligence of any party.
(2) In determining the value of the medical treatment rendered, there shall be a rebuttable presumption that the dollar amount necessary to satisfy the financial obligation to the health care provider represents the value of the medical treatment rendered. Upon motion of any party, the court may determine, outside the hearing of the jury, the value of the medical treatment rendered based upon additional evidence, including but not limited to:
(a) The medical bills incurred by a party;
(b) The amount actually paid for medical treatment rendered to a party;
(c) The amount or estimate of the amount of medical bills not paid which such party is obligated to pay to any entity in the event of a recovery.
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Here, Dr. Shapiro and MHG filed a motion in limine to determine, pursuant to § 490.715.5(2), the amount of medical bills that would be submitted to the jury. The Klotzes filed a response, and the trial court held a hearing on the issue. Substantial evidence was presented at the hearing showing that hens were being asserted against the Klotzes for the difference between the amount billed and the amount of insurance paid. Moreover, evidence was also presented that the Klotzes signed agreements with two providers stating that they were responsible for amounts charged regardless of what insurance paid. This was more than adequate evidence under § 490.715.5(2) to demonstrate the higher value of the medical treatment rendered.
The trial court issued the following order:
After reviewing all memoranda and upon consideration of the oral argument of the parties, the Court finds Plaintiffs have rebutted the presumption with regard to those bills in which a reduced amount was accepted by the provider because Plaintiffs presented expert testimony the bills were reasonable, Plaintiffs are still subject to liens for unpaid bills, and the medical providers have not provided any release of obligation by Plaintiffs to pay for any amounts charged, but not received, by provider.
The evidence on which the court relied was appropriately considered under § 490.715.5(2). The trial court did not err in allowing testimony about the full amount charged for medical bills.
Conclusion
For the foregoing reasons, the judgment is reversed, and the cause remanded to the trial court to enter a judgment in accord with the jury’s verdict.
. SAMC has satisfied its judgment and is no longer a party to this appeal.
. Section 538.225.7 provides a remedy for those defendants who question the qualifications of the person who provided the affidavit of merit. The Klotzes’ attorney filed an affidavit pursuant to § 538.225, and there is nothing in the record that suggests Dr. Shapiro or MHG objected to the affiant-doctor's qualifications under the statute.
. Section 53 8.215 in pertinent part states:
1. In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, any damages found shall be itemized by the trier of fact as follows:
(1) Past economic damages;
(2) Past noneconomic damages;
(3) Future medical damages;
(4) Future economic damages, excluding future medical damages; and
(5) Future noneconomic damages.
2. All future damages which are itemized as required by subsection 1 of this section shall be expressed by the trier of fact at present value.
. Dr. Shapiro and MHG argue that the trial court should have given an instruction that they offered that would have required the jury to express any future damages in terms of present value. This claim is not preserved for review for two reasons: (1) "The argument shall be limited to those errors included in the 'Points Relied On.' " Rule 84.04(e); and (2) "If a point relates to the giving, refusal or modification of an instruction, such instruction shall be set forth in full in the argument portion of the brief.” Rule 84.04(e). This argument was not contained in the Points Relied On and the instruction was not set out in full in the argument portion of the brief. Moreover the damage instructions given in this case by the trial court were all in accord with the Missouri Approved Instruction 70.02(b).
. Dr. Shapiro and MHG also claim that the admission of the treating physicians' opinions through the consultation records violates their Sixth Amendment right to confrontation. This argument is unfounded. The Sixth Amendment protection only extends to criminal prosecutions. The cases on which Dr. Shapiro and MHG rely all relate to criminal matters. As this is a civil case, no Sixth Amendment violation could have occurred.
. Section 490.065, RSMo 2000.
. Specifically, the judge said: "[Gjive it another 45 minutes or so unless you want to just call it quits now and come back tomorrow morning. I’ll let you guys decide what you want to do.”