United States District Court, E.D. Missouri, Eastern Division
J.B., a minor, by and through his Next Friend, R ICKY BULLOCK, Plaintiff,
MISSOURI BAPTIST HOSPITAL OF SULLIVAN, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
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  and Defendants Shamim X. Amini, MD, and BC
Missouri Emergency Physicians, LLP, 's Motion for
Directed Evidence at Close of Plaintiff's Evidence .
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.
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.
The 2017 revised version of Chapter 538 is not applicable in
motion, MBHS reasserts the argument it made in its Motion for
Summary Judgment , 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 , 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).
Plaintiff has made a submissible case that Dr. Amini was
operating as an “employee” of MBHS under the
pre-2017 amendment version of section
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.
“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
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.
Plaintiff has made a Submissible Case for Alleged Medical
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 ...