Case Summary for October 23, 2013

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Case Summary for October 23, 2013

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, October 23, 2013

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SC93083
Union Electric Co. d/b/a Ameren Missouri v. Director of Revenue
St. Louis city
Denial of sales tax refund

Listen to the oral argument:

Ameren was represented during arguments by Erwin O. Switzer III of Greensfelder, Hemker & Gale PC in St. Louis, and the director of revenue was represented by Jeremiah J. Morgan of the attorney general's office in Jefferson City.

Ameren Missouri sought a refund of state sales tax paid on electricity it sold to Schnucks Markets for use in Schnucks bakeries. Section 144.054, RSMo, exempts from sales tax electricity used in the manufacturing or producing of any product. A department of revenue regulation provides, as an example of such an exemption, electricity used by a bakery in creating baked goods for sale to the public or retailers. The director of revenue determined that Schnucks, however, did not qualify for the exemption and denied Ameren’s refund request. Ameren sought review from the administrative hearing commission, which upheld the refund denial, finding that although Schnucks met the bakery exemption, a recent Supreme Court of Missouri opinion invalidated the regulation. Ameren appeals.

Ameren argues the commission erred in finding that Ameren was not entitled to a sales tax refund. It contends the commission’s decision is not authorized under section 144.054 because a regulation authorizes sales tax exemption for retail bakeries. Ameren asserts that the regulation is not invalid under the Court’s decision and that the director is bound by such regulations. Ameren argues the commission correctly found that the regulation applies to Schnucks bakeries.

The director responds the commission correctly found Ameren was not entitled to a sales tax refund. He argues that section 144.054 and the supporting case law do not support a refund in this matter. The director contends the statute allows a refund for manufacturing or processing food items for retail sale, but heating up frozen items does not fall under that definition. He asserts a regulation’s example does not control over the Court’s interpretation of a statute.

Please note: The next two cases, both styled Wanda Mayes, et al. v. Saint Luke's Hospital of Kansas City, et al., will be argued together, with each side allotted a total of 15 minutes for argument.

SC93012
Wanda Mayes, et al. v. Saint Luke's Hospital of Kansas City, et al.
Jackson County
Challenge to dismissal of two medical malpractice actions

SC93254
Wanda Mayes, et al. v. Saint Luke's Hospital of Kansas City, et al.
Jackson County

Listen to the oral argument:

The survivors were represented during arguments by Jonathan Sternberg, a private practitioner in Kansas City; St. Luke's was represented by Sarah S. Ruane of Wagstaff and Cartmell LLP in Kansas City; and Mid-America Heart & Lung was represented by Charles H. Stitt of Shaffer Lombardo Shurin in Kansas City.

Ira Mayes had surgery at St. Luke’s Hospital of Kansas City to remove a sternal wire from his chest, leaving an open wound that required regular care. Mayes was instructed how to change the wound’s dressing and was discharged from the hospital the same day as his procedure. He was rehospitalized after developing a staphylococcus infection in the wound that spread to his aortic valve, killing him. Mayes’ wife and five children (the survivors) filed a petition for damages claiming St. Luke’s and the operating doctor failed to provide proper care of Mayes’ post-operative wound. The survivors obtained affidavits of merit according to section 538.225, RSMo, which requires statements from a qualified health care provider that the defendants had breached the applicable standard of care. The survivors then dismissed the first case voluntarily and refiled a second case, which included constitutional objections to several pieces of legislation involving medical malpractice and negligence actions. The parties agreed the discovery from the first case would be transferred to the second case. St. Luke’s and the doctor moved to dismiss the second case, claiming the survivors failed to refile their affidavits of merit. The trial court dismissed the case, and the survivors filed a third case with the same claims and objections as in the second case. St. Luke’s and the doctor moved to dismiss the third case, claiming the statute of limitations for filing an action in the matter had expired. The trial court dismissed the third case. The survivors appeal the dismissal of the second and third cases.

The survivors argue the trial court erred in dismissing the second case for failure to file affidavits of merit. They contend section 538.225 violates the open courts guarantee of the state constitution and bars individuals injured by medical negligence from access to the courts by conditioning access on hiring an expert to evaluate their claims. The survivors assert the statute also violates their constitutional right to a trial by jury because the jury does not get an opportunity to hear the case until they hire an expert to evaluate their claims and the case is dismissed if they do not. They argue they substantially complied with the statute by providing notice of an expert who will testify that the claims have merit. The survivors contend the hospital and doctor deposed their expert and agreed discovery could be transferred from the first case to the second case. The survivors assert the trial court should not have dismissed their third case as invalid under the statute of limitations. They argue applying the statute of limitations to their third case and limiting the filing deadline to a year violates the open courts guarantee as well as their constitutional right to trial by jury because the jury did not get to hear their case.

St. Luke’s and the doctor respond the trial court did not err in dismissing the survivors’ second case for failure to file affidavits of merit. They argue the survivors failed to preserve their constitutional claims for appeal. They contend the survivors do not have standing to challenge the constitutional validity of section 538.225 because they already had obtained an expert opinion for their first case. The hospital and doctor assert this Court has upheld the statute’s constitutional validity in similar cases. They argue that the statutory requirement of obtaining a medical opinion is a reasonable condition placed on medical malpractice actions and that cases are not submissible without a medical opinion. They contend that anything less than actual compliance with a statute is not acceptable under Missouri law and that the survivors failed to preserve their substantial compliance argument for appeal. St. Luke’s and the doctor assert that the survivors failed to assert a constitutional defect in the trial court’s dismissal of the third case, which they argue was based on the expiration of the applicable statute of limitations.

SC93230
Mary Luscombe v. Missouri State Board of Nursing
Cole County
Challenge to revocation of nursing license

Listen to the oral argument:

Luscombe waived her right for oral argument, and the Missouri State Board of Nursing was represented during arguments by Margaret K. Landwehr of the attorney general's office in Jefferson City.

Mary Luscombe worked as a nurse in Columbia Regional Hospital’s neonatal intensive care unit (NICU). All infants in the NICU wear cardiac monitors. Although written protocol said the monitor could be suspended in certain circumstances, the NICU supervisor e-mailed the nurses in May 2005 that the monitors were not to be suspended at all. A week later, Luscombe suspended one of the infant’s cardiac monitors several times when the other nurse working in the unit was away from the group and the infant’s parents were in the room. The infant was not harmed. The hospital terminated Luscombe’s employment, and she began working for Integrity Home Health Care as a visiting nurse. The job required her to submit paperwork signed by the patients. The state nursing board sought to discipline Luscombe’s nursing license, alleging that she violated hospital protocol while working for Columbia Regional by suspending the cardiac monitor and walking away and that she forged signatures on her paperwork while working for Integrity. At the hearing before the administrative hearing commission, Luscombe sought to admit evidence of the patients’ original signatures, but the commission denied the submission. The commission ultimately revoked her nursing license. Luscombe appeals.

Luscombe argues the commission erred in revoking her nursing license. She contends there is not competent or substantial evidence to support discipline. Luscombe asserts the decision was arbitrary, capricious and unreasonable under section 536.140, RSMo, because, in reaching its decision, the commission relied on the incorrect fact that a nurse can suspend a cardiac monitor if the nurse remains at the infant’s bedside. She argues the nursing board failed to present expert testimony regarding the standard of care necessary to prove gross negligence. Luscombe contends the commission erred in failing to admit evidence of the patients’ original signatures she allegedly forged. Luscombe asserts the testimony and evidence she submitted at the disciplinary hearing was not refuted.

The board responds the commission correctly revoked Luscombe’s nursing license. It argues that expert testimony was not necessary to prove that Luscombe’s conduct was grossly negligent. The board contends that even if hospital protocol did not establish the standard of care, the commission is authorized to determine that Luscombe should not have suspended the cardiac alarm and then left the patient’s bedside. It asserts the commission correctly found a cause for discipline due to falsifying and submitting records months after a missed visit. The board argues that there is competent and substantial evidence to support the commission’s decision to revoke Luscombe’s license and that the decision was reasonable.