THOMAS E. THARP, et al., Appellants/Cross-Respondents,
ST. LUKE'S SURGICENTER-LEE'S SUMMIT, LLC, Respondent/Cross-Appellant.
FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable
Kenneth R. Garrett, III, Circuit Judge
BRENT POWELL, JUDGE.
Luke's Surgicenter-Lee's Summit LLC appeals the
circuit court's judgment against St. Luke's,
following a jury trial, on a negligent credentialing claim
brought by Thomas E. Tharp and Paula M. Tharp. The jury found
in favor of the Tharps and awarded damages. On appeal, St.
Luke's argues the Tharps failed to make a submissible
case of negligent credentialing. This Court agrees. The
circuit court's judgment is reversed.
and Procedural History
case arises from a medical malpractice action against a
surgeon operating out of St. Luke's Surgicenter in
Lee's Summit. In December 2011, Thomas Tharp underwent a
laparoscopic cholecystectomy - a surgical procedure to remove
his gallbladder. The Tharps allege the surgeon damaged Mr.
Tharp's hepatic duct and common bile duct during the
procedure, causing bile leakage, inflammation, and liver
damage. The Tharps settled with the surgeon but proceeded to
trial against St. Luke's, alleging St. Luke's
negligently granted the surgeon staff privileges at its
Tharp's surgeon applied for staff privileges at St.
Luke's in 2005 and renewed his privileges several times
thereafter. Staff privileges allow physicians to utilize a
healthcare facility to admit and treat patients as
independent care providers rather than as employees of the
facility. Among other requirements, St. Luke's requires
physicians applying for staff privileges to disclose whether
they have ever been sued for professional malpractice and, if
so, the number of lawsuits they have defended. Under St.
Luke's bylaws, failing to provide complete information in
the application for staff privileges is grounds to
automatically remove a physician from consideration. Evidence
presented at trial established Mr. Tharp's surgeon had
defended more lawsuits at the time he operated on Mr. Tharp
than he had reported to St. Luke's on his application.
Luke's filed a motion for directed verdict at the close
of all evidence, arguing there was insufficient evidence to
establish St. Luke's breached any duty owed to Mr. Tharp.
St. Luke's also argued its act of granting the surgeon
staff privileges was not a proximate cause of Mr. Tharp's
injuries. The circuit court overruled the motion for directed
verdict. The jury returned a verdict in favor of the Tharps.
St. Luke's then filed a post-trial motion for judgment
notwithstanding the verdict (JNOV), again arguing the Tharps
introduced insufficient evidence to support their claim of
negligent credentialing. Again, St. Luke's argued there
was insufficient evidence to establish St. Luke's
breached any duty owed to Mr. Tharp or St. Luke's actions
were the proximate cause of Mr. Tharp's injuries. The
circuit court also overruled this motion.
the verdict, the circuit court entered judgment in favor of
the Tharps. St. Luke's filed a motion to modify the
judgment, asking the circuit court to order damages awarded
by the jury based on future medical expenses to be paid in
periodic installment payments instead of a lump sum pursuant
to § 538.220. The circuit court sustained St. Luke's
motion and amended its judgment accordingly. The Tharps
appeal the circuit court's application of §
538.220.2, challenging the constitutional validity of this
section, and St. Luke's cross-appeals the circuit
court's overruling of its motions for directed verdict
Tharps challenge the constitutional validity of §
538.220.2 as applied by the circuit court. This Court has
exclusive appellate jurisdiction over cases challenging the
constitutional validity of a statute. Mo. Const. art. V,
§ 3. This Court adheres to the "important principle
of not reaching constitutional issues unless necessarily
required." Hink v. Helfrich, 545 S.W.3d 335,
343 (Mo. banc 2018). This Court, therefore, declines to reach
the Tharps' points because St. Luke's appeal is
standard for reviewing a denied motion for JNOV is
essentially the same as for reviewing the denial of a motion
for directed verdict." Sanders v. Ahmed, 364
S.W.3d 195, 208 (Mo. banc 2012). "A case may not be
submitted unless legal and substantial evidence supports each
fact essential to liability." Id. This Court
views all evidence in the light most favorable to the
jury's verdict and draws all reasonable inferences in the
plaintiff's favor. Id. This Court must disregard
all conflicting evidence and inferences. Id. "A
court may reverse the jury's verdict for insufficient
evidence only when there is a complete absence of probative
fact to support the jury's conclusion." Id.
modern hospitals staff their facilities with two classes of
physicians: staff physicians who are hospital employees and
independent physicians to whom the hospital grants staff
privileges. Under this arrangement, physicians working under
staff privileges are typically independent contractors, not
hospital employees. Injured patients in the past, therefore,
had difficulty recovering against a hospital for injuries
caused by an independent physician because the doctrine of
respondeat superior does not apply to independent
contractors. See Central Trust and Inv. Co. v.
Signalpoint Asset Mgmt., 422 S.W.3d 312, 323 (Mo. banc
2014) ("An employer generally is not held vicariously
liable … for the acts of its independent contractors,
who are not considered employees for purposes of
respondeat superior."). Beginning in the 1960s,
however, courts began to realize hospitals are businesses
that hire, utilize, and benefit from independent contractors
similarly to other types of businesses. See, e.g.,
Darling v. Charleston Comm. Mem. Hosp., 211 N.E.2d 253,
257 (Ill. 1965), cert. denied, 383 U.S. 986 (1966).
The trend toward allowing recovery against hospitals for
injuries caused by independent physicians began to accelerate
under the theory that "an employer is liable for an
independent contractor's negligence when the employer
fails to exercise reasonable care in hiring a competent
contractor." LeBlanc v. Research Belton Hosp.,
278 S.W.3d 201, 206 (Mo. App. 2008) (internal quotations
omitted) (emphasis added). Indeed, this Court, citing
Darling, explained, "The fact the defendant
doctors here were not employees of the defendant hospital
does not necessarily mean the hospital cannot be held liable
for adverse effects of treatment or surgery approved by the
doctors." Gridley v. Johnson, 476 S.W.2d 475,
484 (Mo. 1972).
Leblanc, the court of appeals recognized
"Missouri precedent does not bar a negligence claim
against a hospital for injuries caused by independent doctors
authorized to practice in that hospital." 278 S.W.3d at
206. This theory is called negligent credentialing. See
id. at 204. The theory focuses on whether a hospital
gathered "all the pertinent information to make a
reasonable decision as to whether physicians should have
access to hospital facilities." Steven R. Weeks,
Comment, Hospital Liability: The Emerging Trend of
Corporate Negligence, 28 Idaho L. Rev. 441, 454 (1992).
Negligent credentialing "is merely the application of
principles of common law negligence to hospitals in a manner
that comports with the true scope of their operations."
LeBlanc, 278 S.W.3d at 207 (internal quotations
omitted). Accordingly, before a hospital can be held liable
for an independent physician's negligence, the plaintiff
must show "the hospital's duty owed to the patient,
the breach of the duty, and the resulting injury from the
breach." LeBlanc, 278 S.W.3d at 207; see
also Hoover's Dairy, Inc. v. Mid-Am. Dairymen, Inc.,
700 S.W.2d 426, 431 (Mo. banc 1985) (holding the basic
elements of a prima facie negligence claim are duty, breach
of that duty, causation, and damages).
preserved for ...