Opinion
No. 27648
August 29, 2007
Appeal From the Circuit Court of Christian County Honorable James L. Eiffert, Judge.
Susan Ford Robertson, Attorney for Appellant.
Steve Garner and Rachel M. Dockery, Attorneys for Respondent.
This appeal is from a judgment entered by the Circuit Court of Christian County following a jury verdict rendered in favor of Roger Hickman ("Roger") and Carla Hickman ("Carla") (collectively referred to as "Plaintiffs") on their claim for medical malpractice and loss of consortium against Branson Ear, Nose Throat, Inc. ("Defendant").
Roger, a music minister, who wrote and recorded gospel music, went to see Dr. Christopher Rittman ("Dr. Rittman), a general practitioner, in April 2001, for a "general checkup" and physical examination. During the examination, Dr. Rittman felt Roger's throat and noticed that something was "going on" with his thyroid. As a result, Dr. Rittman, ordered a CT scan and ultrasound. The ultrasound showed that there were nodules in both the left and right thyroid lobes. In addition, the CT scan showed a large calcified mass about the size of a full thyroid lobe growing off of the lower right pole of the right thyroid. Dr. Rittman referred Roger to Dr. Michael Bays ("Dr. Bays"), a physician and surgeon practicing in Branson, Missouri, for further evaluation. Dr. Bays specialized in the treatment of conditions involving the ears, nose, and throat.
Dr. Bays ordered an ultrasound, which revealed similar findings. He performed a needle biopsy on Roger, the results of which were nonspecific, and therefore, Dr. Bays recommended that Roger undergo surgery. Dr. Bays explained to Roger and Carla that his plan was to remove the entire right thyroid lobe, that he would have the tumor and thyroid examined, and if cancer was found, he would perform a total thyroidectomy, which he explained was a procedure whereby all macroscopic or visible thyroid tissue is removed in both the thyroid lobes.
Dr. Bays performed surgery on Roger at Skaggs Health Systems, Inc., ("Skaggs"), a hospital in Branson, Missouri. During surgery to remove Roger's right thyroid, a frozen section was analyzed which indicated that the tumor was cancerous. Dr. Bays indicated in his medical report that he had performed a total thyroidectomy, removing the right and left lobes, and he told the Plaintiffs that he had performed a total thyroidectomy. Following Roger's surgery, he experienced complications that sent him to the CCU and almost caused his death, including a heart attack which caused damage to his heart.
After Roger's surgery, Dr. Bays referred Roger to Dr. Gregory Ledger ("Dr. Ledger"), an endocrinologist, for further evaluation and treatment. Following a total thyroidectomy, a patient's thyroid hormone level should diminish or fade to nothing. In the meantime, a patient's thyroid stimulating hormone level ("TSH") should rise dramatically because the body recognizes a lack of thyroid, and produces excessive levels of the hormone that stimulates thyroid production. However, when Dr. Ledger performed blood tests on Roger, he found that his thyroid levels were basically normal, did not decrease, and his THS levels did not increase as they should following a total thyroidectomy. Dr. Ledger, therefore, ordered an ultrasound, which showed that Roger's left thyroid lobe had been removed, but that his right thyroid gland was still present. The ultrasound ultimately showed the right thyroid gland to be present in its entirety, although the mass was no longer attached to it. It also showed that the nodules that existed in the right thyroid before Roger's surgery were still present, and that the amount of right thyroid tissue that was left prevented effective radioablation.
Radioablation is radioactive iodine therapy which kills any remaining microscopic cancer.
Dr. Ledger recommended further surgery and referred Roger to Dr. Ashley, a thyroid surgeon in Springfield, Missouri. Dr. Ashley reviewed the post-surgery ultrasounds and determined that Roger needed to have a second surgery to remove the right thyroid that had been left during the first surgery. Because the surgery was much more complicated and risky, he referred Roger to Dr. Moley, a surgeon in St. Louis, Missouri, who recommended a second surgery to remove the right thyroid to remove the cancer risk, and so that he could undergo post-surgical radioablation.
On April 4, 2002, Roger underwent a second surgery during which 8.2 grams of thyroid tissue measuring four centimeters by two and a half centimeters by two centimeters was removed, which was basically the size of the right thyroid lobe. Subsequent testing of the thyroid tissue removed showed it was cancer free.
Following the second surgery, Roger's voice was dramatically different. Roger found that he had no endurance for singing, and that he had a significantly reduced vocal range for singing. He could no longer sing commercially, record music, or work as a full-time music minister.
Plaintiffs filed suit against Dr. Bays, Skaggs, and Defendant in May 2003. Prior to trial, Plaintiffs dismissed their action against Dr. Bays without prejudice and against Skaggs with prejudice. The case went to jury trial on January 23-26, 2006, against Defendant alone. The trial court denied Defendant's motions for directed verdict filed both at the close of Plaintiffs' case, and after Defendant rested without presenting evidence. The case was submitted to the jury and the jury returned a verdict for Roger for personal injuries against Defendant in the amount of $299,644.97. The jury also entered a verdict finding that Carla did sustain damages as a direct result of injury to Roger and awarded her damages in the amount of $10,000. The trial court entered a judgment on the jury verdicts. Defendant's motion for judgment notwithstanding the verdict was denied. This appeal followed.
In two points on appeal, Defendant contends that the trial court erred in denying its motions for directed verdict as well as its motion for judgment notwithstanding the verdict ("JNOV") because Plaintiffs failed to elicit expert testimony describing and defining the meaning of the phrase "standard of care" so that the jury was properly informed of the meaning of the phrase and that the opinions offered by the experts were based on the correct standard. As a result, Defendant contends that Plaintiffs failed to make a submissible case. Since the same analysis will apply to both points, they will be discussed as one.
The standard of review relating to the denial of a motion for JNOV and one for a directed verdict are essentially the same, and we will affirm the trial court's denial of such motions as long as the plaintiff made a submissible case. Scott v. Blue Springs Ford Sales, Inc. , 215 S.W.3d 145, 184 (Mo.App.W.D. 2006). In reviewing to determine if a submissible case was made, we view the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable inferences that can be drawn from the evidence, while disregarding all unfavorable evidence and inferences. Id. To make a submissible case, the plaintiff must present substantial evidence establishing each and every element of the claim. Id. The evidence is sufficient to make a submissible case if a reasonable probability that the defendant was negligent may be fairly inferred from it. Delisi v. St. Luke's Episcopal-Presbyterian Hosp., Inc. , 701 S.W.2d 170, 173 (Mo.App.E.D. 1985). If, however, viewing the evidence in a light most favorable to the plaintiff, the question of negligence may only be determined by resort to conjecture and surmise, then the plaintiff has failed to make a submissible case. Id.
"To make a submissible case in a medical malpractice action, plaintiffs must prove that defendants failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants' profession and that their negligent act or acts caused plaintiffs' injury." Washington by Washington v. Barnes Hosp. , 897 S.W.2d 611, 615 (Mo. banc 1995). Stated another way, the plaintiff must prove (1) an act or omission of the defendant failed to meet the required standard of care; (2) the defendant was negligent in the performance of the act or omission; and (3) the act or omission caused the plaintiff's injury. Montgomery v. South County Radiologists, Inc. , 168 S.W.3d 685, 691 (Mo.App.E.D. 2005). "When considering whether a submissible case has been made all the evidence is to be construed in the light most favorable to the plaintiff." Banther v. Drew , 171 S.W.3d 119, 122 (Mo.App.S.D. 2005). We are to give the plaintiff the benefit of all favorable evidence and reasonable inferences drawn therefrom, to the exclusion of all contrary evidence. Id.
As submitted to the jury, liability of Defendant was premised on whether Dr. Bays "failed to perform a total thyroidectomy" on Roger, it was thereby negligent, and such negligence directly caused or contributed to cause damage to him. Negligence was defined for the jury in an instruction based on MAI 11.06 as "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant's profession." In this case, therefore, the issue for decision relates to the sufficiency of the evidence to show that Dr. Bay's failure to perform a total thyroidectomy, if found by the jury to be true, violated the applicable standard of care. In other words, if Dr. Bays failed to perform a total thyroidectomy, did that failure constitute the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of his profession.
It was Plaintiffs' contention that Dr. Bays left the right thyroid gland in place after essentially removing only the tumor from it. It was Defendant's position that Dr. Bays removed all of the right thyroid that he safely could, and as was to be expected in such surgeries, left some of the surrounding tissue which it contended then re-grew before being removed in the subsequent surgery.
Resolution of the issue on this appeal centers around the testimony of two witnesses, both called by Plaintiffs: Dr. Paul Nelson, M.D. ("Dr. Nelson") and Dr. Bays. Dr. Nelson, a board certified general surgeon, and a teacher in the field of surgery at the University of Missouri Kansas City Medical School, teaches students how to "properly do thyroidectomies," and had, himself, performed fifty such operations in the past year. Dr. Nelson testified, in part:
Q: [Plaintiff's attorney] All right. Let me ask you, sir, do you have an opinion about whether [Plaintiff] given his clinical history and findings needed to have a total thyroidectomy?
A: Yes. Total thyroidectomy is the proper procedure for what [Plaintiff's] diagnosis was.
Q: Do you have an opinion about whether or not Dr. Bays performed a total thyroidectomy December 7th, 2001?
A: He did not.
Q: Do you have an opinion, sir, whether given that failure, the subsequent surgery that was undertaken by Dr. Moley in St. Louis was needed and necessary?
A: Yes, it was necessary.
. . . .
Q: Now, Doctor, if you are required to do a total thyroidectomy, based upon the findings of cancer like you've described, and you leave one lobe of the thyroid, does that meet the standard of care for a surgeon?
A: No.
Q: Why does it not?
A: Well, if you — — if you go to take out a whole thing and you leave half the thing in, that's not what you are supposed to do.
Q: Um, as you teach these students on how to do these surgeries, have you ever taught them that it is appropriate to leave half a lobe or half of a thyroid when you do a total thyroidectomy?
A: No.
. . . .
Q: . . . Um, based upon the finding that we just looked at by the ultrasound, . . . that showed the, in essence, you said entire right thyroid present. Do you feel the second surgery was indicated?
A: Yes, yes. It's standard procedure, I think, to do a total thyroidectomy. And because of the reasons I stated a few minutes ago, it needed to be done.
. . . .
Q: [Defendant's attorney]: . . . Isn't the standard practice, Doctor, that when you perform a surgery to remove the thyroid typically when you discover intraoperatively that there is cancer tissue, that typically the surgeon removes as much of the total thyroid as they safely can under the circumstances, knowing that there will always be some thyroid tissue left behind, true?
A: There is often microscopic evidence of thyroid tissue left behind.
. . . .
Q: Doctor, let's see if I can kind of paraphrase what your standard of care criticism is against Dr. Bays. Basically what I hear you saying is that when you go through all the various steps that he took in the operative procedure that he's recorded, as far as the steps that he took you have no criticisms of those steps or the sequence of those steps.
The criticism is that he just failed to appreciate that there was, in your judgement, substantially more thyroid tissue present than he recognized. True?
A: Correct operation for a thyroid cancer of this type is to take out the whole thyroid gland. That wasn't done. He left most of the right side still in.
. . . .
Q: [referring to the second surgery by Dr. Moley] You believe his surgery was well within the standard of care?
A: Yes.
Dr. Bays was also called by Plaintiff and testified, in part:
Q: [Plaintiff's attorney] And you recognize, don't you, Doctor, that you owe that individual certain duties of care?
A: I definitely recognize that.
Q: And if they are going under your knife, you recognize that you owe them duties to do the operation properly, correct?
A: I do.
Q: And if you don't do the operation properly, then it's your responsibility, correct?
A: That's correct.
. . . .
Q: . . . The plan was to proceed with the right and total thyroid lobectomy. That's removal of the entire right thyroid and the tumor, correct?
A: Correct.
Q: And a possible total thyroidectomy, true?
A: True.
. . . .
Q: And so even though the frozen section told you the left lobe was not cancerous, you removed it, right?
A: Yes, I did.
Q: And you told me you do that and that's the standard of care when you have thyroid cancer is to remove the entire thyroid, to do a total thyroidectomy, correct?
A: You're correct. I removed the right lobe —
Q: All right.
A: — determined that there was cancer, then I removed the left lobe.
. . . .
Q: . . . when you do a total thyroidectomy you don't leave the entire thyroid lobe, correct?
A: You definitely don't do that.
Q: You don't do that. And if you do that then you haven't done the right operation, and that would be a mess up, correct?
A: If you did that and said that you did that, then you would be a liar and a fraud.
Q: And so if you leave entire thyroid lobe and you feel you have done a total thyroidectomy, that is a surgical mistake, true? We can agree on that.
A: Um, it may not be a surgical mistake, but it would be an out-and-out lie.
Q: . . . If you think you removed the thyroid but you left it, uh, that's a mistake; isn't it?
A: If you think you did, but you left it, yeah, that would be a mistake.
Q: All right. That would be a mistake. That would be a surgical error. That would be something that would be in violation of your duties as a surgeon, true?
A: Definitely.
Defendant refers us to, among other cases, Swope v. Printz , 468 S.W.2d 34 (Mo. banc 1971). In Swope , a doctor called as an expert in a medical malpractice case was asked whether he had an opinion of whether or not an operation performed by defendant was "up to acceptable medical standards as you know them," to which he testified that it "was not up to acceptable medical standards." 468 S.W.2d 40. Our Supreme Court held that this testimony was based on a subjective test and there was no showing that he knew or was acquainted with the standards of learning, skill and proficiency commonly exercised by ordinarily careful, skillful and prudent surgeons performing thyroidectomies in similar localities. Id. It said "[h]is opinion, based upon his own undisclosed subjective conception of acceptable medical standards and not upon the well-known and required Missouri standard, may not be counted upon by plaintiffs to sustain their judgments." Id.
The locality test in medical malpractice cases was abandoned in Gridley v. Johnson, 476 S.W.2d 475, 481-82 (Mo. 1972).
Similarly, it was held in Boehm v. Pernoud , 24 S.W.3d 759, 762 (Mo.App.E.D. 2000), an expert's testimony as to what he always does in a given situation and that it was consistent with the standard of care was insufficient to make a submissible case. The court held that an expert doctor's opinion must be based upon an established standard of care and not on a personal standard. Id. "Mere evidence that a doctor's conduct did not measure up to the standards of an individual member of the profession, as opposed to the standards of the profession at large, does not constitute substantial evidence of probative force to support a submission of negligence as individual standards may be higher or lower than the standards of the profession as a whole." Id. Also, it said that "[j]ust because a course of action is consistent with the standards of care, however, does not necessarily mean that not following that course of action constitutes a deviation from the standard of care. A particular course of action may surpass the standard of care of a profession, yet it would still be consistent with that standard." Id. Ladish v. Gordon , 879 S.W.2d 623, 628 (Mo.App.W.D. 1994), is an oft cited case on this issue in which the court reiterated that a plaintiff in a medical malpractice case bears the burden of proving that the defendant failed to exercise that degree of skill and learning ordinarily exercised by members of his profession under the same or similar circumstances in treating plaintiff's condition. There, plaintiff's expert testified that "it might have been more appropriate" to have scheduled a procedure around a particular date; that "if [defendant] was aware of her problems, I think it was beneath the standard of care to wait" to evaluate her; if defendant knew he had to perform a certain procedure, "it would be appropriate" to give pain medication; that prescribing a certain medication showed "poor judgment"; and that a failure to instruct the plaintiff in a certain way was "below the standard of care." Id. at 629-33. The court, in holding that the plaintiff did not make a submissible case, said:
The use of the terms "accepted medical standards" and "standards of care" do not in themselves satisfactorily articulate the appropriate legal standard. Care should be taken by counsel in every case, with every expert witness, to make sure the expert is properly oriented with regard to the meaning of the concept of negligence in the instance of a health care provider. It is not enough that the jury instruction [MAI 11.06] informs the jury of the meaning of negligence, or that some other witness testifies as to that witness' understanding of negligence in that context. It is necessary in each case that the fact finder be informed as to whether the witness, in offering opinions, is using the standard prescribed by law and not some other standard.
Id. at 634. This Court followed Ladish in the recent case of McLaughlin v. Griffith , 220 S.W.3d 319 (Mo.App.S.D. 2007).
Ladish also said that "[i]t is not necessary that the legal standard be recited in ritualistic fashion, but generally it must appear somewhere in the context of the expert's testimony that the proper objective legal standard is the standard being employed by this expert in his or her testimony." Id. In keeping with that explanation, it was held in Wicklund v. Handoyo , 181 S.W.3d 143, 147-48 (Mo.App.E.D. 2005), that it was sufficient for an expert to define standard of care as "what a reasonable and prudent physician would do in similar circumstances," even though the standard was imperfectly stated. See also Ploch v. Hamai , 213 S.W.3d 135, 140-41 (Mo.App.E.D. 2006). In the instant case, neither Dr. Nelson nor Dr. Bays indicated that their testimony was based on the legal standard as defined in MAI 11.06 that the jury received. Likewise, neither indicated that it was based on a substantially similar standard.
The reason for the rule was explained succinctly in Lee v. Hartwig , 848 S.W.2d 496, 497-98 (Mo.App.W.D. 1992), a negligence action in which the issue on appeal was the propriety of the trial court sustaining an objection to an expert being asked if defendant's conduct was "negligent." The court held that although it was mindful that Section 490.065 permits an expert to give testimony in opinion form, that opinion must be based upon the established standard of care. Id. at 498. It explained:
Here, plaintiffs' counsel did not provide the definition of the word "negligence" in the immediate context of the question. While [the expert] may have understood the definition of "negligence" which he was to apply in answering the question, the jury might well not have. Reasonable discretion must be allowed to the trial judge in determining whether adequate definition of an operative legal term has been provided. The trial judge is in the best position to determine the risk that the jury will be confused. It was not an abuse of discretion to sustain the objection, in view of the failure of either party to define the term "negligence." The question was phrased in terms of "inadequately explored legal criteria." Plaintiffs suggest on appeal that the lack of legal criteria is solved by the fact that the court, in the jury instructions, defines the term negligence. This misses the point. Without a definition of negligence supplied in the context of the particular question and answer, the jury may not be able to know what the witness means by the word "negligence," although it may later find out what the court means by that term.
Id. at 499 (internal citations omitted). See also Dine v. Williams , 830 S.W.2d 453, 457 (Mo.App.W.D. 1992) (although Section 490.065 permits an expert to give testimony in opinion form, the opinion must be based on the established standard of care, and the question must be phrased so as to leave no doubt that the expert is basing the opinion on well recognized standards).
We note that Dr. Nelson was a board certified general surgeon, a professor at the University of Missouri-Kansas City Medical School, and chair of the department of surgery at St. Luke's Hospital in Kansas City. His testimony included the fact that he has never taught his students that it is appropriate to leave half of a thyroid when doing a total thyroidectomy. The fact that Dr. Nelson is board certified and a professor of surgery does not alone qualify his testimony about what the "standard of care" calls for without further establishing that he is basing it on the appropriate legal standard. In Pettet v. Bieterman , 718 S.W.2d 188, 190 (Mo.App.S.D. 1986), plaintiff's expert was also a board certified professor of medicine who testified about the "standard," "accepted," and "prescribed" medical practice. The defendant's expert, however, testified that the standard was that degree of skill and learning ordinarily used under the same or similar circumstances. Id. The court held that "together" the testimony of plaintiff's and defendant's experts allowed the jury to base their decision on an identified objective standard without employing conjecture and surmise. Id.
Plaintiffs argue that even if the testimony did not establish that Dr. Nelson's opinions were based on the correct standard of care, that "expert testimony regarding the standard of care was not necessary because [Defendant] admitted the standard of care at trial." It is true that a number of cases recognize an exception to the rule that plaintiffs' expert must demonstrate that his opinion testimony on standard of care is based on the legal definition of that term when the defendant's own evidence establishes that standard. See Redel v. Capital Region Medical Center , 165 S.W.3d 168, 173 (Mo.App.E.D. 2005); Ladish , 879 S.W.2d at 635; Pettet , 718 S.W.2d at 190; Delisi , 701 S.W.2d at 173; Pinky v. Winer , 674 S.W.2d 158, 160 (Mo.App.E.D. 1984); Bateman v. Rosenberg , 525 S.W.2d 753, 757 (Mo.App. St.L. 1975).
Dr. Bays' testimony was presented by Plaintiffs. He had, however, been dismissed from the case and was no longer a defendant. Plaintiffs do not cite authority for their implicit contention that Dr. Bays' testimony, under these circumstances was binding on Defendant or could be considered as "its" evidence. Under such circumstances, we are not to become an advocate and search for reasons to uphold a contention on appeal. See Thummel v. King , 570 S.W.2d 679, 686 (Mo. banc 1978).
Finally, Plaintiffs also argue that Defendant could have, but did not, cross-examine Dr. Nelson on his standard of care testimony. They cite Sheffler v. Arana , 950 S.W.2d 259 (Mo.App.W.D. 1997), in which, unlike the instant case, the expert testified that the defendant's care deviated from the standard of care and then testified that the applicable standard of care was that ordinarily exercised by a skillful and prudent physician in diagnosing and treating plaintiff's condition. Id. at 267. Under those circumstances, the court held that if defendant believed that the expert failed to answer the questions or that the range of acceptable conduct was more inclusive than that testified to by the expert, it could have explored them on cross-examination, but that the failure to do so assumes some risk. Id. at 268. Here, the experts presented by Plaintiffs failed to include the appropriate standard of care in any of their testimony. Sheffler , therefore, does not require that we affirm this judgment.
Even though the applicable standard of review requires that the evidence be considered in the light most favorable to Plaintiffs, giving them the benefit of all inferences reasonably drawn therefrom, we are also mindful that a duty rests on them to make a submissible case by substantial evidence of probative force and to remove the case from the realm of speculation, conjecture and surmise. Hurlock v. Park Lane Medical Center, Inc. , 709 S.W.2d 872, 880 (Mo.App.W.D. 1985).
Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case. Concomitantly, where evidence equally supporting two inconsistent and contradictory factual inferences as to ultimate and determinative facts is solely relied on to make a submissible case, there is a failure of proof as the case has not been removed from the tenuous status of speculation, conjecture and surmise.
Id. (internal citations omitted). See also Mills v. Redington , 736 S.W.2d 522, 524 (Mo.App.E.D. 1987) (proof of facts essential to submissibility of a case may not rest on speculation and conjecture, and if proof offered depends on speculation or conjecture, a verdict based on it cannot stand). In the instant case, the jury was left to speculate as to whether the testimony of Dr. Nelson and Dr. Bays was based on the appropriate legal standard or on some other, inappropriate standard. As such, we are compelled to hold that Defendant's contention on appeal is well taken, and to reverse the judgment.
The question inexorably remains as to whether the reversal should be outright or if there should be a remand for a new trial. Our Supreme Court, in Swope , a medical malpractice case premised on damage to vocal cords as a result of a thyroidectomy, reversed a judgment for plaintiffs for a failure of proof that the expert opinions were based on the appropriate legal standard. 468 S.W.2d at 36, 41. In doing so, the court said:
The judgments must be reversed for failure of proof. Since the record does not indicate that all available essential evidence has been fully presented and that no recovery can be had in any event and that on a new trial plaintiffs may be able to make a submissible case the cause is remanded for a new trial on all issues to give plaintiffs an opportunity to develop by expert medical testimony, if so advised and if such testimony is available, that defendant was negligent in causing an injury to the laryngeal nerves.
Id. See also State Farm Mut. Auto Ins. Co. v. Underwood , 377 S.W.2d 459, 464 (Mo. banc 1964). Our Supreme Court has also held that "[a]n appellate court should reverse a plaintiff's verdict without remand only if it is persuaded that the plaintiff could not make a submissible case on retrial. The preference is for reversal and remand." Kenney v. Wal-Mart Stores, Inc. , 100 S.W.3d 809, 818 (Mo. banc 2003) (quoting Warren v. Paragon Tech. Group, Inc. , 950 S.W.2d 844, 846 (Mo. banc 1997). See also Moss v. National Super Markets, Inc. , 781 S.W.2d 784, 786 (Mo. banc 1989); Central Bank of Lake of the Ozarks v. Shackleford , 896 S.W.2d 948, 957 (Mo.App.S.D. 1995); Frankum v. Hensley , 884 S.W.2d 688, 692 (Mo.App.S.D. 1994); Dorris v. Morgan , 852 S.W.2d 194, 196 (Mo.App.S.D. 1993). "If a plaintiff, by mistake or inadvertence, fails to produce sufficient evidence at trial to prove his claim, in a situation where the proof seems to be available, the case should be remanded to permit the introduction of additional evidence." Brattin Ins. Agency, Inc. v. Triple S. Properties, Inc. , 77 S.W.3d 687, 689 (Mo.App.S.D. 2002) (quoting In re Estate of Mapes , 738 S.W.2d 853, 856 (Mo. banc 1987)). Based on these authorities, we are compelled to reverse and remand the case to the trial court for a new trial.
The judgment is reversed and the case is remanded to the trial court for a new trial.
Bates, C.J., and Lynch, J., — concur