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2002 ANNUAL LAW UPDATE

GENERAL NEGLIGENCE

 

Prepared by: Kent L. Brown


 

PROFESSIONAL LIABILITY

Burns v. Elk River Ambulance, Inc., 55 S.W.3d 466 (Mo. App. S. D. 2001). Failure to file the affidavit required under Section 538.225 RSMo in a medical malpractice suit does not deprive the trial court of jurisdiction.

Gingerich v. Kline, 2002 WL 376895 (Mo. App. W. D. 2002) (Case No. WD 59182, issued March 12, 2002). Doctor opened the door to evidence that another of doctor’s patients had a similar injury the following year by arguing throughout his case the statistical rarity of catastrophic uterine rupture during a vaginal birth after Caesarian section.

James v. Poppa, 2002 WL 376908 (Mo. App. W. D. 2002) (Case No. WD 59490, issued March 12, 2002). Generally an employer’s physician cannot be sued for medical malpractice when treating a workers compensation injury. If the employer’s doctor refers the worker to a second physician, however, that second physician can be sued for malpractice because he is not deemed an agent of the employer.

Romeo v. Jones, 2002 WL 171656 (Mo. App E. D. 2002) (Case No. ED 79417, issued Feb. 5, 2002). Attorneys may be sued for abuse of process. Dissatisfied home buyers picketed their builder’s developments in other subdivisions. Builder obtained a temporary restraining order and sued for defamation. Buyers could sue the builder’s attorneys for abuse of process after the defamation suit was voluntarily dismissed because there was evidence that the attorneys had an ulterior purpose in filing a lawsuit. The Eastern District Court of Appeals held a jury could infer that the purpose of the lawsuit was to quiet the buyers’ protests rather than to recover damages for defamation. The court also rejected the attorneys reliance on res judicata because there was no privity between the client and the law firm and the first lawsuit was settled and then dismissed for want of prosecution thereby depriving the buyers of their day in court. This was not simply a case of a former defendant suing an attorney for bringing a lawsuit. There was evidence regarding statements by the attorneys and the developer that the purpose of the defamation lawsuit was to quiet the home buyers’ protests and that the defamation suit was purposely delayed so as to keep it pending as long as possible.

Scott v. SSM Healthcare St. Louis, 2002 WL 109595 (Mo. App. E. D. 2002) (Case No. ED 79240, issued Jan. 29, 2002). Radiologist was agent of hospital for respondent superior purposes despite hospital’s claim he worked as an independent contractor. The primary question is whether the hospital generally controlled or had the right to control the conduct of the radiologist as he performed his work at the hospital. It is not necessary that the hospital stand directly over the doctor’s shoulder and dictate to him how to diagnose and treat patients. The hospital established the medical standards for the provision of radiological services, required the radiologist to submit reports regarding his compliance with those standards, set prices for the radiologist’s services, required the radiologist to be an active member of the hospital’s medical staff, required the radiologist to maintain liability insurance, owned and provided all of the office space for the radiology department and all the equipment, supplies and fixtures. Respondent superior analysis may be somewhat different in medical cases because the very nature of a physician’s work requires him to maintain a certain degree of independence and exercise professional judgment. The court went on to find that the Plaintiff was entitled to recover two non-economic damage cap amounts because the injury was caused by the separate negligent acts of the radiologist and the hospital’s emergency room physician.

Spears v. Capital Region Medical Center, 2002 WL 261630 (Mo. App. W. D. 2002) (Case No. WD 59842, issued Feb. 26, 2002). Patient suing for being infected with hepatitis C while undergoing by-pass surgery could not rely on res ipsa loquitur because expert testimony was needed to prove the infection was contracted in the hospital. Expert testimony is not permitted in res ipsa cases. In order to rely on res ipsa it must be common knowledge to lay persons that the cause of the Plaintiff’s injury does not ordinarily exist but for negligence within the control of the Defendant. Judge Lowenstein, however, urged a change in the law recognizing that the majority view in other states allows expert evidence in res ipsa cases involving medical malpractice.

Wright v. Barr, 62 S.W.3d 509 (Mo. App. W.D. 2001). Where wife sues for malpractice and husband sues for loss of consortium, each may recover up to the statutory non-economic damage cap. The fact the husband’s claim is derivative of the wife’s claim does not mean they are limited to the same damage cap. (Section 538.210 RSMo)

Virgin v. Hopewell Center, 66 S.W.3d 21 (Mo. App. E.D. 2001). Mental healthcare providers had no duty to warn general public about dangerous propensities of patient. Patient was driving the wrong way on Interstate 64 and collided with Plaintiff’s vehicle. Patient had a long history of psychiatric treatment and a confirmed diagnosis of bipolar disease, manic with psychotic features and paranoia. Patient had been hospitalized numerous times for psychiatric treatment because she repeatedly failed to take prescribed medications. Patient had previously been caught on the wrong side of the road, driving with an expired driver’s license, driving without insurance and driving recklessly. She had previously told her psychiatrist she had a death wish when she drove. Patient had been involuntarily committed less than one year before the collision. Plaintiff sued 14 of Patient’s mental healthcare providers alleging they were negligent for failing to warn patient, her family, her close associates, the police and the department of revenue that she could not safely drive a motor vehicle and for failing to adequately monitor or control patient’s conduct or to take other reasonable steps to limit her access to motor vehicles. The trial court sustained Defendants’ motion to dismiss. The Court of Appeals rejected Plaintiffs argument that the mental health professionals treating her owed a duty to the public to warn of the dangerous propensities and to take other actions to protect the public. The court noted imposing such a duty would significantly undermine the physician-patient privilege by requiring medical professionals to disclose information given to them in privileged settings. The purpose of the privilege is to enable patients to securely and confidently communicate information necessary for their treatment without fear of possible unauthorized disclose of the information. The Court of Appeals affirmed the trial court’s dismissal of the suit.

GENERAL TORTS

Burton v. Richmond, 276 F.3d 973 (8th Cir. 2002). Employees of the Missouri Division of Family Services could be sued for denial of substantive due process by sexually abused children who were placed in a foster home without notice to the natural parents or removal of the natural parent’s custody rights. The children were placed in the foster home without representation by independent counsel. No criminal record check was preformed. The foster father had been convicted of numerous felonies including a history of sexual assault which included molestation of members of his wife’s family and had served time in prison for rape and murder. In April the natural mother complained that her daughter had been sexually abused. DFS took no action. The children later complained again but again DFS took no action. Over a year later the children were removed from the foster home and the foster father pleaded guilty to sexually abusing four of the children. The Eighth Circuit held that while the state employees cannot be held liable for injuries which would have been avoided had it provided services, they can be held liable when their action creates or enhances the risk. This is especially true when the children are not free to leave the placement. In this case the children were arguably more at risk in the foster home than they had been prior to their removal from their natural parents.

Hensen v. Truman Medical Center, Inc., 62 S.W.3d. 549 (Mo. App. W.D. 2001). An at will employee could sue a third party for tortious interference with his employment when he was fired after being accused of using inappropriate sexual language. A dialysis technician working for a dialysis company was fired after a hospital accused him of sexual harassment. The dialysis unit was located in the hospital but Plaintiff worked for a separate company which had been contracted to take over the dialysis operations of the unit. The female patient complained to the hospital that Plaintiff raped and sodomized her while she was receiving dialysis. The hospital’s investigation was inconclusive regarding the rape but three employees reported Plaintiff used sexually inappropriate language in the work place. Plaintiff had previously been warned regarding sexually inappropriate language while he was an employee of the hospital. Hospital instructed dialysis contractor to remove Plaintiff from the hospital stating Plaintiff’s work place conduct violated its sexual harassment policy. Plaintiff was removed from the hospital. Thereafter Plaintiff worked for contractor at three different facilities in St. Louis, Rolla and Kansas City and was ultimately terminated for committing three patient errors. Plaintiff sued hospital. The jury returned a $250,00.00 verdict on his tortious interference claim and a $50,000.00 verdict his wife’s consortium claim. The Court of Appeals concluded Plaintiff had a valid expectancy in continued employment and the mere fact he was an employee at will did not defeat a tortious interference claim. Judge Spinden writing for the court observed that while Plaintiff was an employee of the hospital it had wide latitude in dealing with his perceived misdeeds. Once he went to work for an independent contractor, however, hospital became legally obligated to refrain from unjustly interfering with his legitimate business expectancy in his new employment relationship with the independent contractor. The test is whether the defendant actively and affirmatively took steps to induce the breach of the business expectancy and if so whether the plaintiff’s business expectancy would have been realized in the absence of defendant’s interference. Because of hospitals actions, Plaintiff was required to work out of town and earn significantly less. The court concluded substantial evidence existed upon which the jury could find that hospital’s conduct caused employer to breach or alter the conditions of the employment. Hospital claimed it was justified in the actions it took because of its duty to investigate sexual harassment claims. Judge Spinden, writing for the court, concluded that the”without justification” element of the tort was satisfied because the hospital used “improper means” to further its interests. A means is improper if it is independently wrongful such as use of threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade, or other wrongful act recognized by statute or the common law. The court ultimately concluded that whether Plaintiff made the sexually inappropriate remarks and whether hospital was justified in accusing Plaintiff of making them was a matter for the jury to decide. The jury concluded Hospital was not justified. Judgment for Plaintiff and his wife affirmed.

Ingram v. Mutual of Omaha Ins. Co., 170 F. Supp. 2d. 907 (W.D. Mo. 2001) Motion for Reconsideration denied 2002 WL 84625 (W.D. Mo. 2002). Like medical providers, insurance companies owe a fiduciary duty to policy holders not to turn over medical records without notifying the insured. When an insurance company possess medical records subject to the physician-patient privilege the insurance company owes a fiduciary duty to protect those medical records from unauthorized disclosure. Turning over a policy holder’s medical records in response to a subpoena without informing the policy holder constitutes a breach of that fiduciary duty according to United State District Court Judge Ortrie D. Smith. Judge Smith found it irrelevant that the Kansas District Court denied a motion to quash the subpoena four months after the records were released, focusing instead on the fact that no motion to quash had been filed by the insurance company or any other party at the time the insurance company released the records. Judge Smith granted summary judgment to the Plaintiff on her breach of fiduciary duty claim but denied judgment on Plaintiff’s breach of physician-patient privilege claim finding no authority that the physician-patient extended to the insurance company.

Keefhaver v. Kimbrell, 58 S.W.2d. 54 (Mo. App. W.D. 2001). Despite buyers’ waiver of right to inspect home before the sale, sellers could be sued for fraud for failing to reveal blatant defects in home’s roof, basement and deck in the disclosure statement. This case represents a departure from prior court opinions suggesting that when a buyer fails to inspect buyer waives the right to rely on representations and omissions made by the Sellers. The Sellers agreed in their disclosure statement to disclose all material defects known to them which materially effected the value of the property. One month after the sale closed the basement flooded with a foot of water, a large water spot appeared on the ceiling in the living room and the deck collapsed. The Sellers had disclosed information regarding problems and repairs regarding water leaks but denied problems with the deck. In directing the verdict at the close of Plaintiff’s evidence during a bench trial the court found that the water run off problems were open and obvious. The court of appeals disagreed and reversed.

LeCave v. Hardy, 2002 WL 104900 (Mo. App. E. D. 2002) (Case No. ED 79242, issued Jan. 29, 2002). Father could be sued for negligently entrusting his car to his 21 year old son when he knew the son had a history of numerous traffic violations and had no automobile insurance. In reversing the summary judgment for the father, the court of appeals held that a history of traffic violations is powerful evidence that a driver is incompetent and is sufficient to submit a negligent entrustment claim to a jury. Defendant argued the fact his son was a licensed driver and was not intoxicated nor physically or emotionally impaired made him capable of operating a motor vehicle. The court found, however, that possessing a valid drivers license is not sufficient to demonstrate one is competent to drive. Because it is possible habitually reckless drivers may not be convicted of moving violations, the state may not become aware of their dangerous propensities. Consequently, family members and friends are generally in a better position than the state to assess the driving habits of an individual. Failure to maintain insurance as required by law is not sufficient to support a claim of negligent entrustment, but the circumstances surrounding the failure to be insured may be relevant.

O. L. v. R. L., 62 S.W.3d. 469 (Mo. App. W. D. 2001). Child who was entrusted to the care of grandfather and grandmother could not sue grandmother for negligent supervision when she was molested by grandfather. Grandparents routinely picked up child from daycare and supervised the child until the parents picked her up. Grandfather molested the child on occasions when he was left alone with the child. Grandmother had no actual knowledge of the molestation. After grandfather pleaded guilty and went to jail, child sued grandmother for negligent supervision claiming she should not have left grandfather alone with the child. The claim was based on a series of incidents over the prior 20 years including physical abuse of grandmother, a subscription to Playboy 15 years ago and allegations that grandfather had sought homosexual liaisons. The court found grandmother owed a duty to the child but the allegations were insufficient to find a breach. Judge Hollinger writing for the court noted that the foreseeability of sexual molestation is not a necessary element of establishing the existence of a duty but it is an element of determining whether the duty has been breached. Missouri law already recognizes that it is foreseeable that a child may be injured when left unsupervised. Grandmother’s contention that she owed no duty as a matter of law to protect the child from sexual abuse absent some indication that such abuse was foreseeable is incorrect. Foreseeability is not probability analysis but does consider what risks are likely enough to materialize in a given situation that a reasonably thoughtful person would take account of the risk. The court ultimately concluded that grandmother did not have sufficient notice of grandfather’s potential for molestation. Judge Lowenstein dissented saying the fact joint custody was given to both grandparents was insufficient to remove this case from legal principles established in prior cases.

Phelps v. Bross, 2002 WL 171324 (Mo. App. E. D. 2002) (Case No. ED 79200, issued Feb. 5, 2002). “Budweiser Girl” could sue golf tournament sponsor for damages arising from a sexual assault which occurred at the home of one of the tournament participants because sponsor assured her she would be safe and therefore assumed a duty to protect her from the criminal acts of participants. The rules regarding the “Budweiser Girls” were clearly defined. No husbands or boyfriends could attend the event, the women were required to go to and from the event on transportation provided by the sponsor and someone from the sponsor would be at the event to ensure the women were not harassed. Alcoholic beverages were served by the sponsor during the event. Plaintiff claimed she returned to the bus for transportation away from the event but was told by the sponsor to return to the golf complex for an award ceremony. At the ceremony Plaintiff was invited by two of the participants to attend a party after the event. Plaintiff claimed she declined. Plaintiff further claimed she was later told by sponsor that she could ride back with the two participants. Plaintiff claimed that when she again declined sponsor’s agent threw her bag out of the bus and told her to ride with the two participants. One of the participants claimed he had to go by his house to check on something. While at the house Plaintiff began to drink a beer and woke up later unconscious and unclothed on a bed with a man next to her. One of the participants admitted to having sexual relations with Plaintiff but claimed it was consensual. The trial court’s grant of summary judgment was reversed and remanded for determination of whether the sponsor breached the duty owed to Plaintiff and if so whether that breach was the approximate cause of Plaintiff’s injuries.

Piskorski v. Larice, 2002 WL 109627 (Mo. App. E. D. 2002) (Case No. ED 79696, issued Jan. 29, 2002). The Missouri Supreme Court’s holding in Kilmer v. Mun, 17 S.W.3d 545 (Mo. banc 2000) invalidating part of the dram shop statute (requiring a conviction before a civil cause of action arose) applied retroactively to injuries sustained prior to the date of the decision.

Rademeyer v. Farris, 284 F.3d. 833 (8th Cir. 2002). Missouri tolling statute which prevents the running of the statute of limitations when a defendant leaves the state is invalid because it violates the commerce clause of the United States Constitution. A minority shareholder’s claim for fraud against a major shareholder does not accrue for statute of limitation purposes until the minority shareholder has actual knowledge of the facts giving rise to his claim. Because the majority stock owner owes a fiduciary duty to minority stock holders, the law does not require minority stock holders to be as vigilant as in other circumstances. Individuals are entitled to presume that fiduciary duties will be honored until they have actual knowledge calling that presumption into question. The fact that the Plaintiff had been approached previously by another minority shareholder to join in a lawsuit against the majority shareholder was not sufficient to trigger the running of the statute of limitations. Such information may have been sufficient to trigger a duty to inquire into the facts being alleged but did not constitute actual notice and so did not commence the running of the statute of limitations.

PRACTICE POINTERS

Brooks v. SSM Healthcare, Central Region,2002 WL 181275 (Mo. App. S. D. 2002) (Case No. 23664 and 23697, issued Feb. 6, 2002). Medical doctor was qualified to testify as a medical expert in malpractice case even though he did not specialize in the practice area about which he was testifying. Lack of experience and training in specific field goes to the weight of the testimony not its admissibility

Getz Recycling, Inc. v. Watts, 2002 WL 452256 (Mo. App. W. D. 2002) (Case No. WD 59717, issued March 26, 2002). Rental company waived its right under lease agreement to require arbitration by filing a petition for an injunction against the lessee.

State ex. rel. Helt v. O’Malley and Newman v. O’Malley, 53 S.W.3d. 623 (Mo. App W. D. 2001). Plaintiff is entitled to tax returns and financial information of Defendants before making a submissible case for punitive damages at trial.

Johnston v. Sweany, 68 S.W.3d. 398 (Mo. banc 2002). Section 525.240 RSMo and Rule 90 prescribe the traditional garnishment procedures used to collect judgments. Section 379.200 provides for a direct action against an insurance company seeking to compel the insurer to pay a claim on which it has denied coverage. It has long been the practice in Missouri for judgment creditors in cases where an insurance company has denied coverage to file a garnishment against the insurance company to resolve the coverage dispute because garnishment is generally quicker than the direct action statute. Overruling prior precedent, the Missouri Supreme Court held an unsuccessful garnishor under section 525.240 RSMo must pay the insurance company’s attorneys fees if the garnishment is unsuccessful. Reasonable attorney fees available under Section 525.240, however, do not include fees incurred in litigating the coverage issue. Only attorney fees incurred in directly litigating the garnishment aspects of the case are recoverable. Judge Limbaugh, dissenting, argued it would be impossible to separate the coverage issues from the garnishment issues for attorney fees purposes. The Eighth Circuit Court of Appeals reached a similar result in Lancaster v. American Foreign Ins. Co., 272 F3d. 1059 (8th Cir. 2001) issued a few months earlier. Attorneys fees are not available if the insurer is pursued under Section 379.200 RSMo.

Logsdon v. Killinger, 69 S.W.3d 529 (Mo. App. S. D. 2002). Employer loses work comp immunity by creating a hazard in the workplace. Family of a worker killed in a fall from a platform supported by a forklift was not limited to workers compensation because use of the forklift in this manner was more than a failure to provide a safe workplace. Such unauthorized and inappropriate use of a forklift constituted the creation of a hazardous condition by the employer for which the employer could be sued in tort. An affirmatively negligent act by the employer avoids the work comp bar. When the employer made the decision to use the forklift to lift employee 20 feet above the ground knowing the forklift was in a defective condition, it lost any immunity otherwise afforded to it. Instructing an employee to use a forklift in a manner known to be unsafe is a breach of the personal duty of care owed to the decedent.

Purcell Tire & Rubber Co., Inc. v. Executive Beechcraft, Inc., 59 S.W.3d 505 (Mo. banc 2001). Abrogating prior case law, the Missouri Supreme Court declared a clause in a contract limiting liability to the amount paid for the service was enforceable in a suit between two businesses despite lack of reference to negligence in the clause. Buyer relied on inspection of airplane in deciding to finalize the purchase. $372,458.00 repairs were later required. The inspection fee was $1,250.00. Plaintiff was not allowed to avoid the clause limiting liability to the amount paid for the inspection merely because the limitation clause did not mention “negligence,” “fault” or similar language. The contract was negotiated at arms length by two sophisticated business entities.

Standard Security Life Ins. Co. of New York v. West, 267 F.3d. 821 (8th Cir. 2001). Mandatory arbitration clause in Missouri insurance policy was invalid. The Federal Arbitration Act which mandates adherence to arbitration agreements did not apply because the McCarran-Ferguson Act “inverse preemption doctrine” exempted insurance matters from the reach of the supremacy clause of the United State Constitution.

State ex. rel Linthicum v. Calvin, 57 S.W.3d 855 (Mo. banc 2001). In a 4 to 3 decision the Missouri Supreme Court has tentatively ended the practice of suing one Defendant in order to get venue in St. Louis City and adding other Defendants which would destroy city venue the next day.