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Case Summary for March 5, 2008


Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit


9:30 a.m. Wednesday, March 5, 2008


Missouri State Medical Association, et al. v. State of Missouri and Missouri Midwives Association, et al.
Cole County
Midwife services and health insurance
Listen to the oral argument:SC88783.mp3
The state was represented during argument by John K. McManus of the attorney general's office in Jefferson City, the Missouri Midwives Association was represented by Thomas W. Rynard of Jefferson City and the Missouri State Medical Assoication was represented by Robert L. Hess of Jefferson City.

The Missouri House of Representatives passed House Bill No. 818 in 2007. The bill originally proposed amendments to the high-risk health insurance pool and enacted the Missouri health insurance portability and accessibility act, which increases access to health care through changes in health insurance laws. The Missouri Senate broadened the bill's title and added provisions providing state assistance to health providers for collections, requiring genetic counseling, and regulating health care cost-sharing and discount plans. The bill allowed health care providers to get money from the state by seeking an offset against the tax refunds and lottery winnings of those who fail to pay health service bills. Ultimately, the bill included section 376.1753, RSMo, which legalizes services of certified midwives who had, until the passage of this provision, been prohibited from practicing outside the direct supervision of a licensed physician. The bill was signed into law in June 2007. The Missouri State Medical Association challenged the constitutionality of the bill. In August 2007, the circuit court declared section 376.1753 invalid because the legislature failed to adhere to the clear title, single subject and original purpose requirements of the Missouri Constitution. The circuit court permanently enjoined enforcement and implementation of the section. The state and Friends of Missouri Midwives appeal.

The state argues the association lacks standing because it has failed to identify any concrete, particularized, actual or imminent harm to anyone; failed to establish association standing; and has no basis to assert the rights of the patients of its members. The state contends acts of the legislature that are signed by the governor cannot be overturned unless the association establishes the bill violates the constitution. The state asserts that HB 818 complies with the constitutional requirements because the original purpose of the bill was to increase public access to health services through increasing health insurance coverage; that increasing midwife services is consistent with the purpose; and that health services and health insurance constitute a single subject for purposes of article III, section 23 of the constitution. The state contends increasing the availability of certified midwife services promotes the availability of health insurance for those services, so the subject expressed in the title of the final version of HB 818 is broad enough to include a statute increasing certified midwife services. It asserts that this Court has held that a relationship exists between health insurance and health services and that the legislature reasonably could add the midwife provision to a bill "relating to health insurance." The state argues expanding the availability of midwife services is a necessary step in assuring health insurance coverage, so the midwife provision relates to health insurance.

The Friends of Missouri Midwives organization argues the circuit court erred in declaring section 276.1753 in HB 818 invalid because the section fairly relates to the subject of health insurance and is a means to accomplish the law's purpose by enabling health insurance coverage to be available for midwife services. It asserts the section is germane to the overarching purpose of health insurance or, alternatively, the accessibility of health insurance. The organization contends the challenged provision provides expanded access to health insurance coverage for a particular type of health care (midwife services) provided by a particular health care practitioner (certified midwives).

The Missouri State Medical Association responds that the physician associations have standing to challenge the constitutional validity of HB 818 because section 376.1753 would subject their members to professional discipline and would expose their patients to harm. It contends section 376.1753 violated the constitution because the legislative title of HB 818 was underinclusive. The association asserts that while the bill was limited to legislation "relating to health insurance," section 376.1753 does not relate to health insurance and did not relate to the subject expressed in the title of the bill. The association asserts that the original purpose was health insurance and that the addition of the midwifery section changed that purpose. It further responds that the state failed to preserve its allegations of trial court error for judicial review. The association contends the state has not alleged that the "consideration" of the unspecified matters changed the outcome of the case.

The American Medical Association argues, as a friend of the Court, that the Missouri midwife law poses profound risks to the health and welfare of Missouri's citizens. It contends empirical studies conclusively demonstrate that home childbirths can be substantially more dangerous than hospital childbirths. The association asserts that licensed and certified nurse-midwives augment and complement physicians' treatment of obstetrical patients, but Missouri physicians have a legitimate and protectable concern that their licensure may be placed in jeopardy by the midwife law.

Citizens for Midwifery; the Midwives Alliance of North America; the National Association of Certified Professional Midwives; Our Bodies, Ourselves; and the National Birth Policy Coalition argue, as friends of the Court, that increasing access to certified professional midwives and out-of-hospital birth is beneficial to Missouri's citizens. They contend section 376.1753 limits its authorization to certified professional midwives who are duly trained, qualified and certified. They assert the statute will permit certified professional midwives to provide high quality, cost-effective care that will benefit Missouri's citizens and fill gaps in the state health care system. The groups argue that certified professional midwives provide safe, high-quality health care to pregnant and birthing women and that this health care does not pose profound risks to the health and welfare of Missouri's citizens. They contend the medical associations' opposition to HB 818 has more to do with protecting the physicians' professional franchise and less to do with the Missouri Constitution or the safety of childbirth.


Robert H. Sihnhold v. Missouri State Employees' Retirement System
Cole County
Backpay after lowering retirement age of administrative judges
Listen to the oral argument:SC88813.mp3
Sihnhold was represented during argument by Jay Angoff of Jefferson City, and the state was represented by Allen D. Allred of St. Louis.

Robert Sihnhold was a Missouri administrative judge from May 1975 to August 1989 and is a member of the administrative law judges retirement plan, administered by Missouri State Employees' Retirement System. When Sihnhold's employment as an administrative judge was terminated in 1989, section 287.815, RSMo, was in effect and provided that he was eligible to receive retirement benefits at age 65. In 1999, the Missouri General Assembly amended this section to lower the age at which an administrative judge is eligible to receive retirement benefits from 65 to 62 if the person had 12 years or more of service. Despite this change, the state determined that Sihnhold would not be eligible to for retirement benefits until the age of 65. Sihnhold sued, seeking declaratory judgment that he was eligible to retire and to receive benefits at the age of 62. He and the state both moved for summary judgment. In May 2007, the trial court sustained the state's motion. Sihnhold appeals.

Sihnhold argues section 287.815 does not violate the constitutional provisions prohibiting extra compensation to state employees and does not grant him extra compensation. He asserts the trial court erred in granting summary judgment for the state. He contends the state was granted authority to issue and pay out benefits under the retirement system after his 62nd birthday. He further contends the legislature constitutionally passed a retrospective law that waived the state's rights, thereby allowing the state retirement system to pay out benefits under the new law. Sihnhold argues that state retirees have been granted increased retirement benefits after their retirement when the legislature categorized them as "special consultants" even though there is no evidence they ever provided any service to the state in consideration of such additional or "extra compensation." He asserts that by finding such "special consultant" legislation to be constitutional, Missouri courts clearly have established precedent for increasing retirement benefits for those persons no longer working for the state, whether they have already started receiving benefits or, as in Sihnhold's circumstances, where he worked in state government, made contributions to MOSERS, but no longer is working for the state or receiving any retirement benefits.

The state responds that the 1999 amendments to section 287.815 do not apply to Sihnhold because his employment ended in 1989. It argues the section in effect in 1989 applies to Sihnhold and entitles him to receive retirement benefits at 65. The state contends the Missouri Constitution prohibits applying the 1999 amendment to Sihnhold to allow him to receive retirement benefits at age 62 because this would result in the state granting him extra compensation after he rendered his service as an administrative law judge. The state further responds that the legislature could not "waive" the state constitution's prohibitions in article III, sections 39(3) and 38(a) against the state granting extra compensation to Sihnhold after he rendered his service as an administrative law judge. It asserts the circuit court properly did not treat Sihnhold as a "special consultant" and thereby apply the 1999 amendment to section 287.815 to him. The state argues that Sihnhold never presented his "special consultant" argument to the circuit court and that there is no evidence in the record to support such an argument. The state contends the circuit court has no power to create a statute allowing Sihnhold to be treated as a "special consultant" such that the 1999 amendment could apply to him, allowing him to receive retirement benefits at age 62 instead of age 65. The state asserts Sihnhold is not entitled to attorney's fees against MOSERS or "past due medical premiums monies" if he prevails against MOSERS.

SC88813_Sihnhold_brief.pdfSC88813_State_of_Missouri_Employees_Retirement_System_Brief.pdfSC88813_Sihnhold_ Reply_Brief.pdf

Joe Bob Lake, as Individual, and Joe Bob Lake, as Personal Representative of the Estate of Julia K. Lake v. Sharon E. Prohaska, M.D.
Jackson County
Timely and proper substitution of parties
Listen to the oral argument:SC88266.mp3
Lake was represented during argument by Mick W. Lerner of Overland Park, Kansas, and Prohaska's estate was represented by Michael Kleffner of Kansas City, Missouri .

Joe Bob Lake sued Dr. Sharon Prohaska for medical malpractice and loss of consortium after Prohaska gave his wife a shot in June 1999 that resulted in his wife falling and severely injuring her right shoulder. Lake's wife had to have an artificial joint removed as a result of her injury, and she became bedridden from the pain until she died in July 2005 from other illnesses. Prohaska had given Lake's wife the same combination of drugs in March 1999 and, because of her severe reaction, Lake's wife told Prohaska and her staff never to give the medication to her again. In September 2005, the circuit court awarded Lake's wife's estate $100,000 and Lake $25,000. Thirty-four days after the judgment, Prohaska moved for judgment notwithstanding the verdict on all claims. In December 2005, the circuit court said the motion was untimely, but the next month, the circuit court sustained Prohaska's motion, indicating the September judgment was not the final judgment. Prohaska died in April 2006. In August 2006, Lake moved to substitute an out-of-state executor of Prohaska's estate, Susan Grossman, who also was Prohaska's daughter. In November 2006, the Court of Appeals dismissed Lake's appeal because he failed to serve a proper motion for substitution within 90 days, as required by Rule 52.13(a). Lake appeals.

Lake argues the trial court erred in granting judgment notwithstanding the verdict. He contends the motion was filed out of time because 34 days had elapsed since the final judgment was entered. He asserts that Prohaska waived any error with respect to that motion because she had proceeded to present evidence after the court deferred ruling on the motion. Lake argues the Court of Appeals erred in dismissing the appeal because the motion to dismiss was filed without Prohaska's authority. He further argues the Court of Appeals should have granted him leave to name a replacement personal representative once Lake learned Grossman had elected not to submit to the jurisdiction of Missouri courts. He contends he had been led to believe she would submit to such jurisdiction and did not learn anything to the contrary until after the 90-day period for substitution had elapsed.

Prohaska's estate responds that Lake's substitution attempts were improper and untimely. It argues that in August 2006, he improperly moved to substitute Grossman, a Virginia resident, for Prohaska by sending the motion to the attorney who represented Prohaska's estate in Kansas. She contends that in November 2006 which was well outside the 90-day jurisdictional period Lake again improperly sought substitution in a motion he styled as one for rehearing or transfer, not for substitution. Prohaska's estate asserts that Lake's motion should not relate back to the August 2006 attempt to substitute because the plain language of Rule 52.13(a)(1) requires proper service of a proper motion for substitution and Missouri courts cannot extend the 90-day jurisdictional period. Prohaska's estate asserts its counsel properly opposed Lake's improper and untimely substitution attempts.


State ex rel. James Cole, M.D. v. The Honorable David B. Mouton
Jasper County
Substitution of parties in medical negligence case
Listen to the oral argument:SC88841.mp3
Cole was represented during argument by Joel A. Block of Springfield, and Tolbert was represented by Jot Hartley of Springfield.

Betty Tolbert and her husband sued Dr. James Cole for medical negligence in February 2003. They alleged Cole negligently performed orthopedic surgery and follow-up care on the husband in March 2001. Tolbert also claimed loss of consortium. In December 2006, her husband died. In March 2007, Cole filed suggestions of death for the husband and, in July 2007, Cole moved to dismiss for failure to substitute parties. Two weeks later, Tolbert moved to substitute her in place of her husband for his claims against Cole. In August 2007, the circuit court overruled Cole's motion and substituted Tolbert for her husband. Cole then sought an order in mandamus requiring the circuit court to dismiss Tolbert's claims. This Court issued an alternative writ of mandamus in October 2007. Cole seeks to make that writ peremptory (permanent).

Cole argues Rule 52.13 requires a motion for substitution to be filed within 90 days of the filing of suggestions of death. He contends Tolbert did not file a motion for substitution until 110 days after he filed the suggestions of her husband's death.

Tolbert responds that Cole's service of the suggestions of death on the attorney of record for her husband was not effective service under Rule 43.01. She contends the attorney's agency for her husband terminated upon his death. Tolbert argues, therefore, that because she was not a personal representative of her husband's estate, it was legally insufficient to commence the running of the 90-day limitation set forth in Rule 52.13(a).


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