Case Summary for May 13, 2008

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Case Summary for May 13, 2008

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 a.m. Tuesday, May 13, 2008

_______________________________________________________________________________________________________

SC88948
Janice Sides, et al. v. St. Anthony's Medical Center, et al.
St. Louis County
Medical malpractice and expert testimony for res ipsa loquitur negligence cases
Listen to the oral argument:

Sides was represented during argument by Matthew D. Meyerkord of St. Louis, the medical center was represented by V. Scott Williams of St. Charles, and Lee was represented by Donald R. Carmody of Carmody MacDonald P.C., of St. Louis.

Janice Sides had back surgery in June 2003 at St. Anthony's Medical Center. Dr. Thomas Lee of Tesson Heights Orthopedic and Arthroscopic Associates, P.C. performed the surgery. Sides sued Lee and the medical center in November 2006 alleging medical malpractice premised on res ipsa loquitur, which allows a court to infer from circumstantial evidence that an injury arose from some negligent act of the defendant without requiring the plaintiff to prove specific acts of negligence. Sides alleged she was infected at the surgical site with Escherichia coli bacteria, or E. coli, during her surgery and that such infections do not ordinarily happen unless negligence occurs. Lee and the medical center moved to dismiss arguing Sides could not prove her medical malpractice claim without expert testimony, and expert testimony is prohibited in res ipsa loquitur cases. They based their argument on the assertion it is not common knowledge that E. coli infections during surgery ordinarily do not occur unless there was a negligent act. The trial court dismissed her claim. Sides appeals.

Sides argues federal and state courts allow expert witness testimony in support of a medical malpractice claim premised on res ipsa loquitur. She contends patients who suffer malpractice injuries are typically heavily sedated and under the exclusive care of health care providers and their staff. Sides asserts expert testimony allows a plaintiff with no ability to show actual negligence the opportunity to prove negligence through inference. She contends as a policy reason that this Court should adopt a rule allowing plaintiffs to pursue a medical malpractice claim premised on res ipsa loquitur and to require the use of expert testimony to accommodate the complexity of modern medicine and the inability for patients under anesthesia to comprehend the negligent events.

Lee responds Sides could not prevail on her claim without introducing expert testimony on her negligence claim. He contends such expert testimony is not allowed in an action based on res ipsa loquitur and her case was properly dismissed.

The medical center responds Sides failed to state a claim upon which relief could be granted because her medical malpractice claims were based solely on the doctrine of res ipsa loquitur. It contends section 538.225, RSMo, prohibits the use of res ipsa in medical malpractice actions in Missouri and that Sides must plead and prove through expert testimony that each defendant was negligent and that the negligence caused or contributed to her injuries. The medical center argues if this Court determines res ipsa is authorized in medical malpractice actions, its application should be limited to the two scenarios previously recognized by this Court in Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962). It contends prior to Hasemeier, medical malpractice plaintiffs were required to have expert opinion testimony but after Hasemeier expert testimony was only necessary if a foreign object was left in the patient's body or if there was an unusual injury during surgery to a part of the body unrelated to the intended treatment.

The Missouri State Medical Association argues, as a friend of the Court, Sides did not allege a specific act of negligence or facts sufficient to establish a res ipsa loquitur claim. It contends it is not commonly known that contracting E. coli is ordinarily caused by negligence. The association asserts the "common knowledge" component of res ipsa loquitur serves an important role in ensuring that the res ipsa loquitur doctrine is used fairly and pragmatically and this Court should not discard it. It argues the use of expert testimony to establish a res ipsa loquitur claim is inconsistent with section 538.225, which requires a plaintiff asserting damages claims against health care providers to submit affidavits stating that each defendant health care provider was at fault.

The Missouri Association of Trial Attorneys argues, as a friend of the Court, the Court should adopt the majority rule allowing a medical malpractice claim under a theory of res ipsa loquitur and allowing expert testimony. It contends this rule would ensure fairness and the safety of Missouri citizens.

SC89001
Sandra Bach v. Winfield-Foley Fire Protection District
Lincoln County
Liability and offset in personal injury case
Listen to the oral argument:

Bach was represented during argument by Ryan R. Cox of Ryan R. Cox & Associaties, L.L.C., of St. Charles, and the district was represented by Gregory H. Wolk of Berg, Borgmann, Wilson & Wolk, LLC, of St. Louis.

In May 2004, the Winfield-Foley Fire Protection District parked it fire truck in the westbound lane of Route Y because of an automobile accident. Other emergency vehicles and a helicopter also responded to the accident. Sandra Bach asked her 16 year-old nephew, Samuel Madden, to drive her car to take her to a meeting. He collided with the district's fire truck on Route Y. Bach was injured as a result of the crash. In July 2006, Bach sued the district for negligence. The district responded that Bach and Madden were engaged in a joint venture and that Bach, as the vehicle's owner, rendered Madden her agent for the venture. The trial court held as a matter of law, that since Bach owned the car and Madden was driving at her request, the element of control under joint venture was established, making Madden Bach's agent for the car ride. The trial court refused Bach's submitted instructions, and the jury returned a verdict of $100,000, attributing 15 percent of the fault to the district and 85 percent to Bach, thus awarding Bach $15,000. Bach moved for a new trial on the issue of liability. The trial court overruled her motion. Bach appeals and the district cross-appeals.

Bach's argument

Bach argues the evidence did not support the submission of comparative fault in the jury instructions and verdict form. She asserts any negligence by Madden cannot be imputed to her since she was a passenger in the motor vehicle and did not have a mutual right to control the direction of the car ride since she never learned how to drive an automobile. She argues Manley v. Horton, 414 S.W.2d 254 (Mo. 1967), and Stover v. Patrick, 459 S.W.2d 393(Mo. 1970), regarding a passenger's right to control, are contradictory. Bach asserts in Manley v. Horton, ownership of a car automatically gives a passenger a right to control the car. She contends in Stover v. Patrick, the mere ownership of a vehicle in which the owner is riding as a passenger does not establish as a matter of law the owner's right to control the vehicle. Bach contends this Court should determine a passenger's right to control a motor vehicle as a question of fact and adopt the rule that owners who do not know how to drive or who do not possess a valid Missouri driver's license do not have a right to control as a matter of law. She asserts the district's offer of proof was insufficient and preserved nothing for review. Bach further argues discounted or "written off" medical expenses are subject to the collateral source rule and are inadmissible.

The district responds instruction No. 7, attributing fault of the driver to Bach for purposes of determining the relative fault, was proper because as a matter of law the evidence established Madden was Bach's agent while she was present as a passenger in her own vehicle. It argues Bach is not absolved from responsibility for Madden's negligence as a matter of law. The district contends Bach has not preserved issues of liability triable by jury for review.

The district's argument

The district argues the trial court abused its discretion when it refused to permit the district to amend its answer and assert the right to offset for settlement payment by a joint tortfeasor. It contends the matter and amount of the settlement was a matter of determination by the trial court without intervention of the jury and there is no reason, except for the timing of the district's request for leave to amend, that weighs against the offset of the admitted settlement amount. The district asserts that if the judgment is reversed on Bach's argument and if her claim is remanded for a new trial as to liability, it argues the cause should be remanded for new trial as to damages also. It contends the trial court erred in refusing to admit evidence of write-offs of medical bills dictated by Medicare and erred in denying the district's offer of proof to show Bach had no legal obligation to pay a material portion of the medical bills sought to be recovered.

Bach responds she preserved her objection to the question of agency because she specifically objected to her right to control the vehicle. She contends in Stover v. Patrick, mere ownership of a vehicle bears no significance to the right to control. Bach asserts in a non-employee-employer agency relationship, the principal is not vicariously liable for the negligence of her agent. She argues Missouri should analyze a passenger's right to control a motor vehicle as a question of fact and any presumption that an owner has such a right to control should be eliminated. Bach further responds Rule 55.08 requires the fire protection district to plead set off in its answer and a claim for set off must be pleaded and proved as an affirmative defense. She argues the district's offer of proof was insufficient

SC88887
Roger Hickman and Carla Hickman v. Branson Ear, Nose & Throat, Inc., and Michael Bays, D.O., and Skaggs Health Systems, Inc.
Christian County
Medical malpractice
Listen to the oral argument:

Branson was represented during argument by Susan Ford Robertson of Ford, Parshall & Baker of Columbia, and the Hickmans were represented by Steven B. Garner of The Strong Law Firm in Springfield.

After a CT scan and ultrasound were performed on Roger Hickman in May 2001, a doctor at Branson Ear, Nose & Throat, Inc., found Hickman had a large calcified mass on his right thyroid. In December 2001, a doctor removed Hickman's right and left thyroids after determining the mass on the right lobe was cancerous, as they had discussed would happen prior to the surgery. A CT scan the next day indicated the removal of the thyroid gland. A scan in May 2002 showed Hickman had substantial functioning thyroid tissue in his neck. Additional surgery was performed in April 2002 based on a different doctor's recommendation. That surgery resulted in the removal of 8.2 grams of thyroid tissues. The tissue was cancer free. Hickman and his wife allege after the second surgery he lost some of the strength and range of his voice. Hickman sued Branson for medical malpractice and his wife sued for loss of consortium. Branson moved for directed verdict, arguing the Hickmans failed to make a submissible case. The trial court overruled the motion. In January 2006, the circuit court entered judgment for the Hickmans awarding more than $299,600 for Hickman and $10,000 for his wife. Branson moved for judgment notwithstanding the verdict, asserting the Hickmans failed to make a submissible case by failing to provide testimony of the legal definition of negligence as required by law during trial. The trial court overruled the motion. Branson appeals.

Branson argues the Hickmans failed to make submissible case when they failed to elicit expert testimony defining and describing for the jury the term "standard of care" so the jury was informed of the meaning of the term and the jury could determine whether its doctor breached the standard of care and was negligent. It contends without this testimony, a jury could not properly determine whether it was negligent

The Hickmans respond they made a submissible claim. They argue their expert properly testified to the applicable standard of care for removing all macroscopic thyroid tissue. The Hickmans argue both parties informed the jury that the issue to be determined was the factual issue whether Branson's doctor did remove all of Hickman's thyroid tissue.

SC89130
State ex rel. John Doe v. The Honorable Stanley Moore
Moniteau County
Constitutionality of retrospective child endangerment statutes' inclusion in sex offender statute

Listen to the oral argument:

Doe was represented during argument by Jonathan Sternberg of Kansas City, and the state was represented by Michael J. Spillane of the attorney general's office in Jefferson City.

John Doe pleaded guilty to endangering the welfare of a child in the first degree pursuant to section 568.045, RSMo in March 2006. His plea was pursuant to a plea agreement with the prosecutor. In July 2006, the circuit court accepted the plea and suspended imposition of sentence contingent on five years probation with the Missouri division of probation and parole. With his probation, the circuit court judge ordered Doe to complete the Missouri sex offender program. The judge then drew a line through the words "Missouri Sex Offender Program" and handwrote "Over-the-Walls Program" and signed her initials in the margin. Doe interpreted this as excluding him from being supervised as a sex offender. In June 2006, the Missouri General Assembly passed House Bill 1698, which broadened the sex offender registry act's definition of a "sex offender" pursuant to section 589.400, RSMo, to include anyone since July 1979 who has pleaded guilty to endangering the welfare of a child pursuant to section 568.045. This statutory change added Doe's offense, and in August 2006, the circuit court changed his probation status to that of a sex offender after it received a letter and an "investigation report" from the division. Doe's counsel was not notified of the change. In September 2006, the circuit court ordered Doe's probation to be modified. Doe moved to challenge the change of his probation status. Ultimately, in December 2007, the circuit court ordered an additional probation condition, per the division's request, that Doe attend and successfully complete "sex offender treatment" with a treatment provider approved by the division. In February 2008, Doe moved for circuit court to set aside its December 2007 order and return him to his original probation conditions. Doe was to meet with his probation officer on February 5, 2008, who would demand Doe sign forms consenting to the new probation status. Doe's attorney advised him to not sign any consent to the new status as it could prejudice his pending motion as the consent might be construed as a waiver of his rights. When he did not sign, the probation officer reported Doe as violating his probation by failing to consent to supervision and treatment as a sex offender. Doe sought a writ of prohibition with this Court. A preliminary writ was issued, commanded the circuit court not to enforce its orders from May and December 2007 and not to do anything other than file a return to the writ or vacate the orders and return Doe to his original status. Doe seeks to make the writ permanent.

Doe argues changing his status to a sex offender violates the prohibition on retrospective applications of law in article I, section 13 of the Missouri Constitution. He asserts the circuit court's orders retroactively applies the probation provisions of HB 1698 and increases his punishment by creating new obligations, imposing new duties and attaching new disabilities to his guilty plea.

The state responds Doe pleaded guilty to endangering the welfare of a child by knowingly engaged in sexual conduct with a child in violation of section 568.045.1(2). It argues the circuit court placed reasonable conditions on Doe's probation, based on the recommendation of probation officials, calculated to rehabilitate Doe and protect the public. The state asserts that the circuit court has the power to impose the conditions under the law as it existed at the time of Doe's offense, and that the bans on ex post facto and retrospective laws not violated.

SC89176
State ex rel. Office of Public Counsel v. Public Service Commission of the State of Missouri, et al.
Cole County
Enforcement of writ for electric company tariffs
Listen to the oral argument:

The public counsel was represented during argument by Lewis R. Mills, Jr. of Jefferson City, the commission was represented by Kevin A. Thompson of Jefferson City and Empire was represented by Diana C. Carter of Brydon, Swearengen & England P.C., in Jefferson City.

Empire District Electric Company sought to raise its rates by 10 percent in February 2006. The Public Service Commission began a hearing on Empire's proposed rate increase, and Empire filed proposed tariffs as well. The commission suspended the tariffs and continued the rate case. In December 2006, the commission decided the substantive rate case issues for Empire but rejected Empire's proposed tariffs. It directed Empire to file tariffs that reflected and conformed to its decision in the rate case. Empire filed new tariffs and asked the commission to approve them by Jan. 1, 2007. That same day, the Office of the Public Counsel filed its objection to the tariffs, arguing they did not conform to the commission's decision in the rate case. The public counsel further objected to the tariffs being approved by the first of the year. At 3:40 p.m. Friday, Dec. 29, 2006, the commission approved Empire's tariff to be effective Jan. 1, 2007. Because state offices are closed Jan. 1, electronic filing of a rehearing motion after 5 p.m. Dec. 29, 2006, or filing of a hard copy paper motion after 4 p.m. that same day would be deemed filed on Tuesday, Jan. 2, 2007 – one day after Empire's tariffs were to become effective. The public counsel sought a writ of mandamus to stop the commission's order. A preliminary writ was issued in May 2007. This Court made the writ absolute, ordering the commission to vacate its December 2006 order and grant the public counsel a reasonable time to challenge any subsequent order approving a rate change. The commission entered an order vacating its December 2006 order, approving new rates, and granting the public counsel time to challenge the order. The commission did not require Empire District to return the moneys collected under the order that was vacated. The public counsel seeks to enforce the writ.

The public counsel argues the commission failed to comply with the Court's mandate in State ex rel. Office of the Public Counsel v. Public Service Commission, 236 S.W.3d 632 (Mo. banc 2007), to vacate the December 2006 order. It asserts the commission did not set the order aside and terminate the effect of its December 2006 order and did not restore the rates in effect prior to the order. Instead, the public counsel contends, the commission declared that Empire's tariffs remained the proper tariffs charged to customers since January 2007. It argues it is entitled to a writ of mandamus to compel the commission to immediately and fully comply with the Court's directive to vacate the December 2006 order. The public counsel contends the commission lacks discretion to not comply with the Court's order and the public counsel does not have an adequate legal remedy to reverse the commission's order and enforce the Court's mandate.

Empire responds the commission complied with this Court's mandate because it vacated the first tariff order and gave the public counsel a reasonable amount of time to seek rehearing regarding the tariffs. It asserts the commission was not directed by this Court to reinstate or approve, on a going-forward basis, any particular tariff. Empire contends the public counsel did not meet the requirements for the writ because it sought a declaration regarding the lawfulness and reasonableness of Empire's rates and to compel the commission to retroactively reinstate the 2005 rates that had been on file prior to the commission's decision and had been found to be unjust and unreasonable. It argues, instead, that the writ could only seek the compulsion of a ministerial duty. Empire asserts the commission did not violate this Court's mandate because it issued the second tariff order, vacating the first tariff order and provided the public counsel the opportunity to seek rehearing regarding the tariffs. It argues the commission did not attempt to retroactively reinstate the first tariff order, but instead re-approved the tariffs on a going-forward basis.

The commission responds the public counsel is not entitled to a writ of mandamus because an adequate remedy is available by judicial review. It contends section 386.510, RSMo, provides the exclusive remedy for review of the lawfulness and reasonableness of commission decisions. The commission argues it has fully complied with this Court's prior mandate. It asserts it vacated its previous order and gave the public counsel an adequate opportunity to file an application for rehearing. The commission contends the challenged tariffs would have gone into effect by operation of law prior to the issuance of this Court's prior mandate and the challenged rates are the only rates Empire could have charged. It further responds it could not rule on pending applications for rehearing or take any other action in the case while the writ of review proceeding was pending in Cole County in that it did not have jurisdiction over the case at the time. The commission argues mandamus confers no new authority on the party against whom the writ may be issued and the commission does not have the authority to order Empire to issue refunds or to allow the company to charge any rates other than the rates contained in its tariffs.

Industrial Intervenors argue, as a friend of the Court, the commission violated this Court's writ to vacate its December 2006 order because it failed to perform its non-discretionary duty to comply with that writ of mandamus. It contends the commission attempted to retroactively reinstate its December 2006 order as though no directive to vacate that order had ever been issued by this Court.