Case Summary for March 6, 2002

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Case Summary for March 6, 2002

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SC83783
Mark M. Tendai, M.D. v. Missouri State Board of Registration for the Healing Arts
Cole and Greene counties
Discipline of a physician's license for negligence

Dr. Mark Tendai is an obstetrician/gynecologist in Springfield who has practiced gynecology exclusively since 1996. In August 1997, the state board of registration for the healing arts alleged that Dr. Tendai had been negligent in his prenatal care and treatment of two patients in the early 1990s. Following a three-day hearing in February 1999, the administrative hearing commission found that Dr. Tendai had violated the standard of care with respect to his treatment of one of the two patients. After seven months of treatment from Dr. Tendai, the patient delivered a stillborn child November 29, 1992. The commission determined that he had failed to refer her to a perinatologist for further treatment, as the fetus had intraueterine growth retardation. Following the commission's decision, the board conducted a disciplinary hearing. The board publicly reprimanded the doctor's license, suspended the license for 60 days, prohibited Dr. Tendai from ever again practicing obstetrics or obstetrical procedures in Missouri and required him to attend a medical documentation course. He sought judicial review of the administrative decisions and now appeals to this Court.

Dr. Tendai challenges the constitutional validity of section 334.100.2, subdivisions (5) and (25), and the commission's application of section 334.100.2(5). He argues the subdivisions violate equal protection because they create, without justification, different classes of physicians suspected of incompetence and establish different procedural rights based on the classification. He argues that the terms "incompetency," "gross negligence" and conduct "which is or might be harmful" to a patient in section 334.100.2(5) are unconstitutionally vague, and that the board's application of these terms violates his due process rights. He also argues the board's disciplinary order violates his right to equal protection because it is not rationally related to the board's interest in protecting the public. Dr. Tendai argues that the evidence does not support the commission's decision. He contends that the board failed to establish what standard of care should apply where no medically appropriate referral alternatives are available, that evidence supported that he did refer the patient to a perinatologist, and that the board did not allege that his conduct constituted repeated negligence. In addition, Dr. Tendai argues the board unlawfully closed its deliberation process and failed to set forth any basis for the discipline in its findings or conclusions.

The board responds that the terms in section 334.100.2(5) are not unconstitutionally vague and that the commission's application of these terms did not violate Dr. Tendai's due process rights. It argues that Dr. Tendai violated this subdivision because his treatment of his patient fell below the acceptable standards of care. It argues that it did not err in disciplining Dr. Tendai's license for incompetence, gross negligence, repeated negligence and conduct dangerous to the health of a patient, particularly where the commission found the doctor had presented false evidence to establish a defense. The board further responds that its order was based on lawful procedure and is supported by competent and substantial evidence on the whole record. It also contends that its deliberations may be closed under section 610.021 because it is acting in a quasi-judicial capacity.

SC84011
State ex rel. Gerry Taylor v. The Honorable Barbara W. Wallace, Judge, Circuit Court of St. Louis County, Missouri
St. Louis County
Immunity under worker's compensation law

In December 1996, while working as a "trash helper," William Smith was injured on the job after Gerry Taylor, who was driving the truck, allegedly hit a mailbox. At the time, both worked for Browning-Ferris Industries, now known as Midwest Waste, Inc. In January 2001, Smith filed a personal injury lawsuit against Taylor and their employer, claiming Taylor was negligent. Browning-Ferris paid Smith worker's compensation benefits after his injury, and in May 2001, Smith voluntarily dismissed Browning-Ferris as a defendant. In August 2001, Taylor asked the court to dismiss the lawsuit for lack of subject matter jurisdiction, but the court denied his motion. Taylor ultimately sought relief from this Court, which issued its preliminary writ on November 20, 2001.

Taylor now seeks to have that writ made permanent, arguing he is entitled to an order prohibiting the lower court from proceeding with the case against him. He contends he is immune from common-law liability under the state's workers' compensation act because he is merely Smith's non-supervisory coworker and because Smith has alleged nothing more than that, as a result of the accident, Taylor failed to provide a safe workplace.

Smith responds that his case should be allowed to proceed in the trial court. He argues that a writ of prohibition is not appropriate here because Taylor would have an adequate remedy on appeal, and he would not suffer irreparable harm if the case proceeds. He contends that the claimed immunity is not clear and that no important question of law has been presented that otherwise would escape review by this Court. Smith further responds that Taylor is not entitled to statutory immunity from liability because Smith sufficiently alleged that Taylor owed Smith an independent duty of care to exercise the highest degree of care on the roadway.

SC84096
In re: Russell Edmund Tluscik
Clay County
Attorney discipline

Russell Tluscik is a solo practitioner in Gladstone, Mo., with no disciplinary history. In April 1996, Janet Pollard contracted with the builder who built their house in Maysville, Mo., to build a deck for the house for an additional $6,290. The Pollards were dissatisfied with his work and decided not to pay $6,000. When the builder demanded payment, Pollard retained Tluscik. She signed an hourly fee contract with him and paid him a $5,000 retainer. Although Pollard wanted to sue the builder, Tluscik allegedly advised her to withhold payment for the deck and wait for the builder to sue her. In August 1997, after a lumber company filed a lien against the Pollards' house, Tluscik filed an answer and a cross-claim against the builder as well as a motion to dismiss the action. The lumber company dismissed its action in October 1998. Tluscik allegedly did not tell Pollard he filed these pleadings on her behalf until October 1999, after she had written to him asking that he return her $5,000 retainer and expressing concern that he had not told her how he was spending her retainer, assessing her case, or even if he had filed her claims in court. Shortly thereafter, Tluscik hand wrote Pollard, requesting the fair market value of her home so he could proceed and telling her she could come pick up her file from him, if she wanted to. Pollard never received this letter, and she wrote him in February 2000 asking that he return $4,000 of her fee, allowing him to keep $1,000 as payment for filing the cross-claim on her behalf. In September 2000, when she still had not received her retainer or an accounting for it, Pollard filed a complaint with the chief disciplinary counsel. Tluscik subsequently failed to respond to requests for information from the disciplinary counsel's office, which now asks this Court to suspend Tluscik's license to practice law.

The chief disciplinary counsel asks this Court to discipline Tluscik for violating Rule 4-1.4, 4-1.16(d) and 4-8.1(b). She argues Tluscik failed to keep Pollard reasonably informed about her case, failed to comply with her requests to provide an accounting of how her retainer was being spent and failed to return Pollard's file to her for more than 18 months after she requested it. The disciplinary counsel contends that Tluscik failed to respond to requests for information from disciplinary authorities and failed to comply with a bar committee's direction to provide the committee with an accounting for Pollard's retainer and a copy of Pollard's case file. The chief disciplinary counsel asks this Court to suspend Tluscik's license for his repeated disregard for these requests and directives.

Tluscik responds that he should receive only a public reprimand for his conduct in Pollard's case. He argues that he did keep Pollard reasonably informed about her case through numerous phone calls and some letters. He also contends that he had problems with his billing software, difficulty locating information in storage from two moves of his office, and problems with the manner in which he kept track of his time worked for clients. He responds that these problems prevented him both from giving Pollard her file and information about her retainer as well as from cooperating with the disciplinary authorities and bar committee in a more timely fashion.

SC83680
State of Missouri v. Terrance L. Anderson
Butler and Cape Girardeau counties
Direct appeal of a death penalty conviction and sentence

In July 1997, Terrance Anderson learned that his 17-year-old girlfriend, Abbey Rainwater, had obtained a restraining order to keep him away from her, the infant daughter they shared, and her parents, with whom she was living. She told him he couldn't see the child and that a court would establish his visitation rights later. That night, Anderson went to the Rainwaters' home in Poplar Bluff. He kicked in the door and shot Abbey's mother, Debbie Rainwater, in the back of the head, killing her instantly. Terrance threatened Abbey's younger sister and friends until Abbey would come out and talk to him. When Abbey's father, Stephen Rainwater, returned home, Terrance shot him in the forehead, killing him. One of Abbey's friends called 911 and then hid. When two police officers responded to the call and approached the house, they saw a man holding a baby in front of a window, waving a gun, and a body in the yard. The officers convinced him to give the baby to Abbey's younger sister, and they arrested him. Anderson was tried in Cape Girardeau County on a change of venue from Butler County. Following a motion by Anderson's attorney, the court ordered that he undergo a mental evaluation to determine his competence to stand trial. The state's expert found Anderson competent, while two experts hired by the defense found that Anderson suffered from paranoia and depression. The expert concluded that Anderson was neither competent to appreciate the nature of the charges against him or to assist his attorney in his defense. The expert also concluded that, on the night of the murders, Anderson was incapable of coolly reflecting on his actions. The court found Anderson competent to proceed to trial, and the jury convicted him of two counts of first-degree murder, two counts of armed criminal action and one count of first-degree burglary. Anderson was sentenced to death for Debbie Rainwater's murder and to life in prison without the possibility for parole for Stephen Rainwater's murder.

Anderson appeals. He argues the court violated his constitutional rights in drawing for its jury pool fewer than the 5 percent of the population, as required by statute, and then in permitting the circuit clerk and presiding judge to release venirepersons ex parte based on improper or inadequate reasons. He contends the court's error in failing to hold a competency hearing, in finding Anderson competent, and in proceeding through the guilt and penalty phases of Anderson's trial violated his constitutional rights and prejudiced him. He claims the court abused its discretion in permitting the state to strike two venirepersons from the jury panel. Anderson argues the court erred in permitting the state to use the public defender system's confidential billing records in suggesting that the defense experts were "mercenaries" who could not be trusted. He contends the court plainly erred in not declaring a mistrial on its own motion for guilt- and penalty-phase arguments by the state that he believes were improper. He claims the court plainly erred in overruling defense objections and in not declaring a mistrial on its own motion when the prosecutor elicited testimony from two police officers. He contends this testimony impermissibly referred to Anderson's invocation of his right to remain silent and suggested he remained silent because he had something to hide. Anderson argues his constitutional rights were violated because the state sought the death penalty against him partially because he is a black man who killed a white woman. He claims, therefore, that this Court should reduce Anderson's death sentence to life without parole. He contends that the court erred in giving a penalty phase instruction because the aggravating circumstances were not supported by the evidence and were duplicative, rendering the death penalty arbitrary and capricious. Anderson further argues that the court plainly erred in failing to declare a mistrial on its own motion when the state made certain inappropriate comments during voir dire.

The state responds that no error occurred in the composition of the jury pool. It argues that Anderson waived his claim that the master jury list contained fewer than the requisite 5 percent of the population, that he failed to show that the court was removing or excusing jurors from service for inadequate or improper reasons. The state contends that the court in fact held two hearings on the issue of Anderson's competency, that the court's finding that Anderson was competent to proceed was supported by substantial evidence, and that he was not prejudiced by the court's denial of his motion for additional testing. The state responds that the court did not abuse its discretion in striking two venirepersons because their views on the death penalty would have impaired their performance as jurors. The state argues the court did not err in permitting the state to use office of administration records showing how much the public defender's office paid its experts or in allowing the state to argue, without objection, that the witness was biased toward the public defender's office. The state contends these records were relevant to impeachment, were not confidential, did not infringe on Anderson's rights, and the information they contained could have been obtained from other sources, and that the prosecutor's arguments were based on reasonable inference from the evidence. The state argues Anderson's claims about the prosecutor's closing argument are without merit because he never requested a mistrial, the arguments were proper and, even if they were not, Anderson failed to show they could not be cured except by a mistrial. The state contends that no manifest injustice resulted when the prosecutor elicited witness testimony that Anderson was silent after his arrest. The state responds that there was no error in the prosecutor seeking the death penalty or in the jury selection procedures. The state argues this Court affirm the death sentence because it passes proportionality review. It contends the penalty phase instruction was proper and did not prejudice Anderson. The state also responds that no plain error resulted from the court did not grant a mistrial during voir dire.