Court of Appeals of Missouri, Southern District, First Division
LAURA COONCE, JACOB COONCE and LUCAS COONCE, Plaintiffs-Appellants,
RICHARD SIMONS, R.N., Defendant-Respondent.
FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Ralph H.
Jaynes, Senior Judge
the death of Melvin Coonce (Coonce), Coonce's surviving
spouse and sons (hereinafter referred to collectively as
Plaintiffs) filed a wrongful death suit against Richard
Simons (Defendant). The petition alleged that Defendant's
negligent nursing care caused or contributed to cause
Coonce's death. Defendant moved for summary judgment on
the ground that Plaintiffs had not produced, and would not be
able to produce, evidence sufficient to allow the trier of
fact to find that Defendant's acts or omissions caused or
contributed to cause Coonce's death. The trial court
granted summary judgment in favor of Defendant.
contend the grant of summary judgment was erroneous because
there are genuine issues of material fact that require a
trial to resolve. We disagree and affirm the summary judgment
entered in favor of Defendant.
summary judgment shall be granted "[i]f the motion, the
response, the reply and the sur-reply show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law
…." Rule 74.04(c)(6); Schnurbusch v. W.
Plains Reg'l Animal Shelter, 507 S.W.3d 675, 679
(Mo. App. 2017). As a defending party, Defendant may
establish a right to summary judgment by showing: (1) facts
negating any one of the claimant's elements facts; (2)
the claimant, after an adequate period of discovery, has been
unable, and will not be able, to produce evidence sufficient
to allow the trier of fact to find the existence of any one
of the claimant's elements; or (3) the undisputed facts
support each of the necessary elements of the defending
party's properly pleaded affirmative defense. ITT
Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 381 (Mo. banc 1993). "Each of these
three means establishes a right to judgment as a matter of
law." Lindsay v. Mazzio's Corp., 136 S.W.3d
915, 920 (Mo. App. 2004). Because the propriety of summary
judgment is purely an issue of law, we review the grant of a
summary judgment de novo. Id. at 919.
and Procedural Background
come into a summary judgment record only via Rule
framework." Jones v. Union Pacific R.R. Co.,
508 S.W.3d 159, 161 (Mo. App. 2016) (emphasis in original).
As required by Rule 74.01(c)(1), Defendant attached a
statement of uncontroverted material facts to his summary
judgment motion. Each statement of uncontroverted material
fact was admitted by Plaintiffs. We have used those
statements of uncontroverted material fact to prepare the
following summary of relevant facts.
October 2006, Coonce was incarcerated in the Camden County
Jail. Defendant was employed as a registered nurse for the
jail and provided medical services to prisoners. Coonce had a
medical history of high blood pressure and nephrotic kidney
syndrome. His nephrotic kidney syndrome caused cramps,
dizziness, edema and fatigue. In January 2007, Coonce was
transferred to Lake Regional Medical Center where he
subsequently died due to a "cardiovascular accident,
" coronary artery disease and hypertension. Thereafter,
Plaintiffs filed suit against Defendant. The petition alleged
that Defendant violated the standard of nursing care and was
negligent in 17 separate respects. Grouped topically, those
allegations generally related to: (1) Defendant's failure
to document aspects of Coonce's care; (2) Defendant's
failure to timely identify particular symptoms of
Coonce's declining health; and (3) Defendant's
failure to timely communicate those particular symptoms to a
physician. Plaintiffs alleged that Defendant's negligent
nursing care caused or contributed to cause Coonce's
Brown (Nurse Brown) was the only expert witness who addressed
the causation issue for Plaintiffs. Nurse Brown holds an
associate's degree and a bachelor's degree in
nursing. She is not a licensed physician. With respect to the
cause of Coonce's death, Nurse Brown opined that "if
there had been timely intervention there is a good
possibility that Mr. Coonce would have recovered from the
fungal infection." Defendant obtained a contrary expert
opinion from Dr. James Jungles (Dr. Jungles). Dr. Jungles,
who is board certified in family medicine, was employed by
Camden County as the jail physician. Dr. Jungles opined,
within a reasonable degree of medical certainty, that the
care and treatment provided by Defendant to Coonce at all
times met or exceeded the applicable standard of care. Dr.
Jungles also opined, within a reasonable degree of medical
certainty, that Defendant's acts or omissions did not
cause or contribute to cause Coonce's death.
present one point on appeal. They contend the trial court
erred in granting summary judgment for Defendant because
there is a genuine issue of material fact concerning
causation. Plaintiffs rely upon Nurse Brown's opinion on
causation to create that factual dispute.
plaintiff bringing a wrongful death claim based upon medical
malpractice must show: (1) the defendant's act or
omission failed to meet the required medical standard of
care; (2) the defendant's act or omission was negligently
performed; and (3) the defendant's act or omission caused
the decedent's death. See, e.g., Sundermeyer
v. SSM Reg'l Health Servs., 271 S.W.3d 552, 554 (Mo.
banc 2008). To preclude a summary judgment on the issue of
causation, a plaintiff must demonstrate that there are
genuine issues of material fact regarding whether the
defendant's conduct was both the cause-in-fact and the
proximate cause of the decedent's death. Id.;
Tompkins v. Cervantes, 917 S.W.2d 186, 190 (Mo. App.
1996). To establish causation-in-fact, a wrongful death
plaintiff must establish that, but for the defendant's
actions or inactions, the decedent would not have died.
Sundermeyer, 271 S.W.3d at 554; Watson v. Tenet
Healthsystem SL, Inc., 304 S.W.3d 236, 240 (Mo. App.
2009). In addition, a plaintiff must also present evidence of
legal causation, which may act to bar recovery in a
negligence action when the cause is remote or intervening
events arise. Sundermeyer, 271 S.W.3d at 555;
Tompkins, 917 S.W.2d at 190. "In a medical
malpractice case, where proof of causation requires a certain
degree of expertise, the plaintiff must present expert
testimony to establish causation." Sundermeyer,
271 S.W.3d at 554.
argue that the trial court's ruling was erroneous
because: (1) Nurse Brown was qualified to provide an expert
opinion as to the cause of Coonce's death; and (2) her
opinion was sufficient to create a genuine issue of material
fact as to causation. We disagree.
licensed medical doctors testify as medical experts. On
certain limited medical subjects, however, other persons have
been permitted to testify." Sigrist By and Through