Court of Appeals of Missouri, Eastern District, Third Division
LINDSEY SETZER and MICHAEL SETZER, Respondents - Cross-Appellants,
SSM HEALTH CARE ST. LOUIS, Appellant - Cross-Respondent.
from the Circuit Court of St. Louis County Honorable Michael
T. QUIGLESS, J.
medical-malpractice and wrongful-death action, SSM Health
Care St. Louis appeals from the trial court's judgment
entered on the jury verdicts in favor of plaintiff Lindsey
Setzer on her personal-injury claim, and in favor of Lindsey
and her husband Michael Setzer on their wrongful-death claim
for the loss of their unborn baby. SSM alleges the trial
court erred in not reducing the judgment by the amount of the
settlement between the Setzers and Dr. Joseph G. Herrmann, a
joint tort-feasor of SSM. SSM's allegation is well-taken.
Given SSM's request, the parties' stipulations, and
the statutory provisions of Section 537.060 governing
contributions among tort-feasors, we hold that the trial
court should have applied the reduction. We thus affirm the
trial court's judgment in all respects except as to
reduction under Section 537.060. We reverse the trial
court's judgment with respect to reduction, and remand
the case to the trial court for further
and Procedural Background
Setzers' case stems from care Mrs. Setzer received at SSM
St. Clare Health Center.Mrs. Setzer presented to St. Clare's
emergency department complaining of severe pain, nausea,
vomiting, heartburn, abdominal pain, and a loss of appetite.
Mrs. Setzer was fourteen weeks pregnant at the time. After a
short admission of about sixteen hours, during which Mrs.
Setzer's condition worsened, Mrs. Setzer was discharged
with an undiagnosed and untreated urinary tract infection.
infection developed into sepsis. Hours after discharge, Mrs.
Setzer drove to Mercy Hospital in St. Louis with additional
pain. She was admitted to the ICU, where she lapsed into a
coma and was near death. Mrs. Setzer remained in the ICU for
seven days, and was in the hospital for a total of ten days.
The Mercy doctors diagnosed Mrs. Setzer as having a urinary
tract infection, kidney stones, and sepsis. Thereafter, Mrs.
Setzer lost her unborn baby.
Setzers sued SSM Health Care St. Louis and Dr. Herrmann, the
on-call OB-GYN at St. Clare's who was consulted to
undertake Mrs. Setzer's care. Mrs. Setzer sued for
personal injuries she suffered as a result of the untreated
infection. Mr. and Mrs. Setzer jointly brought a
wrongful-death suit for the death of their unborn baby boy.
Setzers settled with Dr. Herrmann, and then proceeded to
trial against SSM. The jury found in favor of the Setzers and
against SSM, on both the personal-injury negligence claim and
the wrongful-death claim. The jury found SSM liable for the
actions of both Dr. Herrmann and Nurse Amy Farr. SSM has
appealed, raising a host of alleged errors on the part of the
trial court. In this decision, we address the one allegation
with merit regarding the requested and stipulated-to
reduction in the judgment.
maintains it is entitled to a reduction in the judgment
entered against it by the amount of the settlement paid to
the Setzers by Dr. Herrmann. The trial court entered judgment
consistent with the jury verdicts without reducing the amount
of assessed damages by the amount of the settlement between
the Setzers and Dr. Herrmann, despite SSM's requests and
the parties' stipulations regarding the reduction. SSM
alleges the trial court erred in not applying the reduction.
SSM is correct.
537.060 RSMo directs that a defendant's liability shall
be reduced by the amount of settlements entered between a
plaintiff and other joint tort-feasors. Sanders v.
Ahmed, 364 S.W.3d 195, 211 (Mo. banc
2012). This statutory section implements the
common-law rule that a plaintiff is entitled to only one
satisfaction for the same wrong. Stevenson v, Aquila
Foreign Qualifications Corp., 326 S.W.3d 920, 925 (Mo.
App. E.D. 2013). "Under common law, when a judgment for
a wrong is rendered against one who is a joint tort-feasor,
and the judgment is satisfied, the plaintiff cannot recover
another satisfaction for the same wrong." Gibson v.
City of St. Louis, 349 S.W.3d 460, 466 (Mo. App. E.D.
2011)(internal quotation omitted). The receipt of full
satisfaction from either tort-feasor for the wrong for which
both are liable would bar plaintiff's recovery from the
other for the same injury." Stevenson, 326
S.W.3d at 925. Correspondingly, "when the injured
plaintiff settles with one of the tort-feasors for a portion
of the wrong for which each is liable, the injured person
still retains her cause of action against the other
tort-feasors and recovery may be had for the balance of the
injury." Stevenson, 326 S.W.3d at 925 (internal
timely and repeatedly raised this issue at each stage of
litigation. SSM pleaded the request as an affirmative defense
in its answer. Sanders, 364 S.W.3d at 211 (noting
that a reduction under Section 537.060 is a satisfaction of
an amount owed, and must be pleaded and proved as an
affirmative defense). SSM specifically mentioned the
settlement between the Setzers and Dr. Herrmann, and
specifically requested a credit under Section 537.060 for the
settlement payment made by or on behalf of Dr. Herrmann.
Setzers clearly stipulated to the reduction on at least two
occasions. On the first day of trial, in open court, before
voir dire began, and out of the presence of the
venire panel, SSM again raised the issue of the settlement
between the Setzers and Dr. Herrmann. At SSM's request,
counsel for the Setzers expressly and clearly stipulated that
should there be an adverse verdict and judgment entered
against SSM, that SSM would be entitled to a credit on that
judgment in the amount of the settlement between the Setzers
and Dr. Herrmann. The Setzers also stipulated that SSM did
not need to plead or prove that there was, in fact, a
Setzers' counsel again stipulated to the reduction after
trial, in chambers, at arguments on SSM's post-trial
motion. In fact, it was the Setzers' counsel who first
brought the matter to the court's attention during that
conference, informing the trial court that, although the
Setzers believed that SSM's post-trial motion should be
denied, "[w]e do believe that the judgment needs to be
amended because they're entitled to a
credit…." Counsel for SSM recounted the
stipulation for the court, stating that by stipulation, the
amount of the settlement between the Setzers and Dr. Herrmann
had to be applied to the judgment. The Setzers' counsel
expressly agreed with ...