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Tharp v. St. Luke's Surgicenter-Lee's Summit, LLC

Supreme Court of Missouri, En Banc

February 26, 2019

THOMAS E. THARP, et al., Appellants/Cross-Respondents,
ST. LUKE'S SURGICENTER-LEE'S SUMMIT, LLC, Respondent/Cross-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Kenneth R. Garrett, III, Circuit Judge


         St. 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.

         Factual and Procedural History

         This 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 hospital.

         Mr. 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.

         St. 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.

         After 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.[1] 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 and JNOV.


         The 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 dispositive.

         Standard of Review

         "The 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.


         Generally, 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).

         In 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).

         Issue preserved for ...

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