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J.B. v. Missouri Baptist Hospital of Sullivan

United States District Court, E.D. Missouri, Eastern Division

February 16, 2018

J.B., a minor, by and through his Next Friend, R ICKY BULLOCK, Plaintiff,
v.
MISSOURI BAPTIST HOSPITAL OF SULLIVAN, et al., Defendants.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Missouri Baptist Hospital of Sullivan's Motion for Directed Verdict/Judgment as a Matter of Law at the Close of Plaintiff's Evidence and Incorporated Memorandum of Law in Support [162] and Defendants Shamim X. Amini, MD, and BC Missouri Emergency Physicians, LLP, 's Motion for Directed Evidence at Close of Plaintiff's Evidence [163].

         I.BACKGROUND

         Plaintiff J.B., a minor, filed this medical malpractice suit by and through his Next Friend, Ricky Bullock, against Defendants Missouri Baptist Hospital of Sullivan (“MBHS”), BC Missouri Emergency Physicians, LLP (“BC MO”), and Shamim X. Amini, M.D. (“Dr. Amini”). Plaintiff alleges Dr. Amini was negligent in providing health care services to a wound on Plaintiff's left leg during his stay at the MBHS Emergency Department on July 31/August 1 and August 3 of 2014. More specifically, Plaintiff alleges Dr. Amini failed to locate a piece of wood lodged in his leg near the wound, and as a result, Plaintiff suffered a bacterial infection, necrotizing fasciitis, on his left lower leg. Plaintiff further alleges Dr. Amini performed the negligent acts in the course and scope of his agency and employment with both BC MO and MBHS. All parties stipulate Dr. Amini was acting as an employee of BC MO.

         II. DISCUSSION

         Defendant MBHS' motion asserts judgment as a matter of law should be granted in its favor because Plaintiff has failed to establish Dr. Amini is its “employee.” The motions from both Defendants state judgment as a matter of law should be granted for Defendants and against Plaintiff because Plaintiff has failed to establish a claim of negligence. Under Federal Rule of Civil Procedure 50(a), “[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue the court may: (A) resolve the issue against the party; and (B) grant a motion for a judgment as a matter of law against the party on a claim or defense that, under controlling law, can be maintained or defeated only with a favorable finding on that issue.” “Judgment as a matter of law is warranted only when no reasonable juror, taking all reasonable inferences in the light most favorable to the opposing party, could find against the movant.” Estate of Snyder v. Julian, 789 F.3d 883, 887 (8th Cir. 2015) (citing Brawner v. Allstate Indem. Co., 591 F.3d 984, 986 (8th Cir. 2010). For the following reasons, this Court denies Defendants' motions for directed verdict.

         A. The 2017 revised version of Chapter 538 is not applicable in this case.

         In its motion, MBHS reasserts the argument it made in its Motion for Summary Judgment [42], which concerns the applicability of the 2017 revisions to Chapter 538, RSMo. It argues the revised version, unlike the version prior to 2017, expressly defines “employee” as “any individual who is directly compensated by a health care provider for health care services rendered by such individual and other non-physician individuals who are supplied to a health care provider by an entity that provides staffing.” See § 538.205(3), RSMo 2017. Both parties stipulate MBHS did not directly pay Dr. Amini for the services that form the basis of the alleged negligence, and MBHS states the amendment to the statute can be retroactively applied because it is a mere procedural change. Thus, MBHS argues, it cannot be held liable for the negligence of Dr. Amini. For the reasons contained in its order relating to MBHS' Motion for Summary judgment [111], this Court does not agree, and it will not grant MBHS judgment as a matter of law on these grounds. See J.B. v. Mo. Baptist Hosp. of Sullivan, 4:16-CV-01394-ERW, 2018 WL 572026 (Mo. ED. Jan. 26, 2018).

         B. Plaintiff has made a submissible case that Dr. Amini was operating as an “employee” of MBHS under the pre-2017 amendment version of section 538.210.2(3).

         In the alternative, MBHS moves for directed verdict on the basis that Plaintiff has not established an employee-employer relationship between Dr. Amini and MBHS based on the common-law principles of agency. In order to find MBHS liable for the actions of Dr. Amini, Plaintiff must prove Dr. Amini was acting as an employee of MBHS when he committed the alleged negligence. In Jefferson ex rel. Jefferson v. Missouri Baptist Medical Center, 447 S.W.3d 701, 709 (Mo. App. E.D. 2014), the Missouri Court of Appeals found the word “employee” as used in section 538.210.2(3), RSMo 2007, should be defined by using the common-law principles of agency. The court listed a number of factors adopted by Missouri courts in determining whether a purported agent is acting as an employee of the purported principal. Id. at 710-11. Namely, the court held “[a]n employee is a subset of agent distinguished by the principal's right to control the details of the employee's work performance.” Id. at 712.

         However, “an employer's right to control may be attenuated, and an employee may have a significant degree of discretion in [his] work.” Id. A court will not be precluded from finding the existence of an employer-employee relationship between a hospital and physician merely because the physician retains independent medical judgment. See id.

         Here, Plaintiff has established under the MBHS bylaws, MBHS could take Dr. Amini off the medical staff if it found he was not competent. Plaintiff has also shown Dr. Amini was provided tools and supplies by MBHS, including a nursing staff. Accordingly, under the test provided in Jefferson, this Court finds Plaintiff has established a submissible case such that a reasonable jury could find Dr. Amini was an employee of MBHS when he committed the alleged negligence.

         C. Plaintiff has made a Submissible Case for Alleged Medical Negligence.

         Finally, Defendants argue Plaintiff has failed to make a submissible case for medical negligence. Under Missouri law, a plaintiff must prove three factors to establish a prima facie case of medical malpractice: “(1) an act or omission of the defendant failed to meet the requisite medical standard of care; (2) the act or omission was performed negligently; and (3) the act or omission caused the plaintiff's injury.” Mueller v. Bauer, 54 S.W.3d 652, 656 (Mo.Ct.App. 2001) (citing Brickey v. Concerned Care ...


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