Missouri Cases on Medical Malpractice

• Thurman v. St. Andrews Management Services, Inc., et al (September 30, 2008) - Following the death of their relative at a nursing home, plaintiffs filed suit against the nursing home's owner, manager, director of medical services, and attending physician.  Plaintiffs also filed suit against the hospital where decedent had been treated, and against the emergency room physician who saw decedent.  Prior to trial, plaintiffs settled with several of the defendants, including the emergency room physician.  At trial, the remaining defendants introduced evidence, without objection, of the emergency room physician's negligence.  However, he trial court refused to give the jury the apportionment of fault instructions proffered by plaintiffs.  After a verdict in favor of plaintiffs, the trial court granted plaintiffs' motion for new trial on the ground that it erred in failing to give the apportionment instructions.  Held:  Section 538.230 RSMo, applicable to medical malpractice cases provides that the court shall instruct the jury to apportion fault among both existing parties and previously released parties, unless otherwise agreed to by the parties.  Defendants argued that plaintiffs did not plead apportionment of fault, nor did they introduce any evidence supporting the apportionment of fault to the emergency room doctor; therefore, defendants claimed, plaintiffs were not entitled to instructions on apportionment.  The court of appeals ruled that, although plaintiffs did not plead apportionment, evidence of the emergency room physicians's negligence was offered by defendants, without objection from plaintiffs.  Thus, the issue of apportionment of fault was tried by consent.  Under § 538.230, apportionment of fault is mandatory in medical malpractice cases, unless the parties agree otherwise.  Since the parties did not agree otherwise, and the issue was tried by consent, the trial court was required under the statute to instruct the jury to apportion fault.  Therefore, the trial court did not err in granting a new trial to correct is failure to properly instruct the jury. 

• Dorothea LeBlanc v. Research Belton Hospital (December 9, 2008) - Plaintiff filed a cause of action against the hospital and others alleging medical malpractice against doctors and negligent credentialing against the hospital.  The court dismissed the negligent credentialing claim.  Plaintiff dismissed all other claims and filed an appeal.  The court of appeals found that negligent credentialing was recognized in the case of Gridley v. Johnson, 476 S.W.2d 475 (Mo.1972) and that cause of action has never been repudiated by Missouri courts.  The court recognized two well established principles in Missouri.  1) The hospital owes its patient a specific duty of reasonable care proportionate to the patient's needs as the patients known condition requires and 2) An employer is liable for an independent contractors' negligence when the employer fails to exercise reasonable care in hiring a competent contractor.Defendant also had claimed that the peer review Statute Section 535.035, provided immunity from decisions relating to credentialing.  The court of appeals found that the immunity was limited to those situations where the acts were performed in good faith without malice and were reasonably related to the scope of the inquiry of the peer review committee.  Therefore, it was not an absolute immunity.

• White v. Tariq (September 8, 2009) -The trial court dismissed plaintiffs’ medical malpractice action without prejudice for failure to timely file a healthcare affidavit as required by Section 538.225 as amended in 2005. Plaintiffs originally filed suit in 2000 but voluntarily dismissed their case in 2006. Within one year they filed under the savings statute. More than 180 days after filing their 2007 petition, plaintiffs’ submitted the required health care affidavit. After hearing the court dismissed. Held: Affirmed. While the Missouri Constitution does prohibit the enactment of a law that is "retrospective in its operation" this provision does not apply to a procedural statute. The requirement of an affidavit is procedural and accordingly, the 2005 revisions did not violate the constitutional ban on retrospective laws. Furthermore, the language of Section 538.225.6 mandates that the complaint be dismissed if the health care affidavit is not timely filed.  Finally, even though the dismissal was without prejudice, the effect of the dismissal, given the earlier voluntary dismissal, was to bar any further action. The rule contemplates that some dismissals without prejudice will terminate the litigation because it provides that another civil action with the same cause may be brought "unless a civil action is otherwise barred." Rule 67.01