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Missouri Law Blog Legal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

Supreme Court of Missouri Overturns $2.3 Million Negligent Credentialing Verdict but Grants New Trial

February 25, 2020 | John Mahon, Jr.

In a case of first impression, the Supreme Court of Missouri, in Thomas E. Tharp, et al. v. St. Luke’s Surgicenter-Lee’s Summit, LLC, overturned a $2.3M verdict and granted a new trial after the unusual step of holding a rehearing and vacating an earlier opinion.

In February 2019, the Court overturned a jury verdict in favor of a patient and his wife against a surgery center because there was no proof the surgery center negligently granted staff privileges to a surgeon. Though other Missouri courts had recognized the existence of a negligent credentialing cause of action, this opinion was the first from the Supreme Court of Missouri to address the essential elements of such a claim. 

At the rehearing, the plaintiffs claimed they possessed additional evidence which, if presented upon retrial, would allow them to make a submissible case of negligent credentialing.  This purportedly includes evidence of low scores the surgeon received on continuing medical education exams, thus suggesting an inability to retain essential knowledge necessary to competently perform surgery.  This also purportedly includes evidence of the surgeon's litigation history showing he was sued more frequently as he aged, and expert witness testimony regarding the significance of the statistics.  The Court did not take a position on the admissibility of this proffered new evidence, or its probative value (which is for a jury to decide), but the Court found this sort of evidence could possibly support a finding that the surgeon was incompetent or generally careless, which is the required standard for a negligent credentialing claim.

The Court said it decided to hold a rehearing and order a new trial because it would be manifestly unfair to deny the plaintiffs a new trial when they did not know and could not have known what evidence the Court would require to make a submissible case.  Legal precedent requires remand for a new trial if the plaintiff's legal failure was caused not by a strategic decision, avoidable or invited error, but by an extrinsic factor outside the plaintiff's control.  One such extrinsic factor is ignorance of the evidence necessary to support a cause of action when there is no statute or binding appellate precedent setting forth same.  As mentioned above, though other Missouri courts have recognized the existence of a negligent credentialing cause of action, no court had addressed the essential elements or evidence required.  Thus, the Court found the plaintiffs’ legal failure justifiable and not punishable in the absence of guidance from the Court.  

This is the first ruling of its kind to provide guidance to Missouri lower courts and practitioners prosecuting or defending a negligent credentialing claim.  These claims are difficult to prove, as they require proof beyond that which is required to support a direct medical negligence claim.  Absent credible evidence of a physician’s incompetence generally, and the negligent failure of a healthcare facility to discover the incompetence and act accordingly, courts should dispose of these claims via dispositive motion.  Further, it is not enough to prove that but for the credentialing, the physician could not have performed the conduct that produced the injury.  Rather, a plaintiff must prove the injury was the natural and probable consequence of the physician’s incompetence.

This opinion did not address whether the negligent credentialing theory conflicts with V.A.M.S. § 538.210.4 (2017), which provides, in part, that “[n]o health care provider whose liability is limited by the provisions of this chapter shall be liable to any plaintiff based on the actions or omissions of any other entity or individual who is not an employee of such health care provider . . . .”  Negligent credentialing liability necessarily depends on negligent actions or omissions of a non-employee physician.  In the event this argument is raised, it is unclear how the Court would address the apparent conflict of law.  

City of St. Louis falls to 5th on the Judicial Hellhole list with Madison and St. Clair Counties, Illinois close behind ranking 7th.

February 12, 2020 | Laura Beasley and Meghan Kane

Thanks to “junk science,” the “Show-Me-Your-Lawsuit” state remains within the top 10 of judicial hellholes throughout the country. St. Louis is home to the largest talc verdict to date thanks to a July 2018 City of St. Louis verdict awarding $550 million in actual damages and $4.14 billion in punitive damages to a group of 22 plaintiffs. Not only are there forum shopping concerns with regards to the talc litigation, there is concern that St. Louis City judges allow plaintiffs’ lawyers to introduce “junk science” as evidence. Specifically, plaintiffs’ experts have been allowed to tell jurors that talcum powder causes ovarian cancer, even though research is mixed and biased as to increased risk, if any, with the use of talcum powder. Nonetheless, the City of St. Louis continues to allow this “junk science” to be heard in their courtrooms, which can result in big verdicts. 

The Missouri legislature, however, has taken steps toward addressing the plaintiff-friendly forum, resulting in the City of St. Louis seeing a decline from 4th to 5th in the judicial hellhole rankings this year. But it has a long way to go, as do Madison and St. Clair Counties in Illinois.

In Madison and St. Clair Counties, the plaintiffs’ bar continues to push pro-plaintiff agendas. For example, pro-plaintiff legislation eliminating the statute of repose for asbestos-related occupational disease has been passed, along with legislation which essentially eliminates the power of special interrogatories.  The ATRF Report also puts the blame for these judicial hellholes on the Illinois Supreme Court.  

The American Tort Reform Foundation (“ATRF”) Report attributes “no-injury” lawsuits as overburdening Illinois businesses, and the Illinois Supreme Court helped open those floodgates when it issued its decision in Rosenbach v. Six Flags Entertainment, 2019 IL 123186. In Rosenbach, the court found that the plaintiff need not have suffered actual harm to maintain and win a lawsuit filed under the Illinois Biometric Information Privacy Act (“BIPA”), 740 Ill. Comp. Stat. 14 (2008). Since this decision, the ATRF Report indicates that more than 250 lawsuits have been filed with BIPA at the forefront of the issues in those suits, making businesses vulnerable to massive potential liability in the State of Illinois.

Moreover, according to the ATRF Report, Madison and St. Clair Counties continue to remain the preferred jurisdiction in the United States for plaintiffs’ lawyers to file asbestos lawsuits. The Report further notes that the Gori Law Firm (formerly known as Gori, Julian & Associates, P.C.), “one of the top asbestos filers in the nation,” was able to “stack” [sic] the deck higher when Barry Julian, co-founding partner of Gori Julian, was appointed to the Madison County bench in January 2019. The ATRF Report claims the “plaintiff-friendly reputation, low evidentiary standards, and judges’ willingness to allow meritless claims to survive” make Madison and St. Clair Counties a flocking ground for asbestos litigation. 

Until the legislature in both Missouri and Illinois decide to create meaningful reforms, these three counties are likely to continue to rank high on ATRF Report’s Judicial Hellholes list. 

An Approved Jury Instruction Isn't Always the Best Choice

December 11, 2019 | John Lord

The Missouri Court of Appeals (Western District) recently reversed a defense verdict because the trial court’s verdict directing instruction, taken from the Missouri Approved Instructions (MAI), didn’t accurately state the law applicable to Plaintiff’s claim. 

In Gary Miller v. Norfolk Southern Railway Company, Plaintiff Miller sued his railroad employer based on the Federal Employer’s Liability Act (“FELA”).  Miller claimed to have sustained cumulative injuries caused by defective locomotive cab seats.  Specifically, he claimed that the railroad’s cab seats were “loose and wobbly” and they failed to protect him from excessive shock, jarring and vibration. This negligence caused him to suffer back injuries.   The jury was instructed on two theories of recovery for Miller under the FELA:  general negligence and negligence per se for violation of the Locomotive Inspection Act (“LIA”, 49 U.S.C. s. 20701 et seq.).   The jury found for the railroad on both theories.

On appeal, Miller asserted that the trial court erred by refusing his proffered verdict director relating to his negligence per se theory, and by submitting an instruction that did not properly state the law applicable to his claim.  The Court of Appeals agreed.  

The Court of Appeals observed that the LIA supplements the FELA by imposing on railroads an absolute duty to provide safe locomotives.  The LIA provides that railroads may only use locomotives that “are in proper condition and safe to operate without unnecessary danger of personal injury”.  Pursuant to the LIA, the Federal Railroad Administration (“FRA”) promulgated regulations governing standards of care for locomotives, including cab seats.  These regulations include 49 C.F.R. s. 229.119(a) which states that cab seats “shall be securely mounted and braced”.

The Court further noted that a railroad can violate the LIA by breaching the broad statutory duty to provide locomotives that are “safe to operate without unnecessary danger of personal injury” (the general statutory duty) or by failing to comply with regulations issued by the FRA (a specific regulatory duty). 

Miller requested a verdict directing instruction on his negligence per se theory based on the railroad’s failure to comply with the specific regulatory duty, i.e. 49 C.F.R s. 229.119(a).  He intended to forgo a verdict director based on the general statutory duty, i.e. 49 U.S.C. s. 20701.  The approved instruction for an FELA claim based on an LIA violation tracks the language of the LIA’s general statutory duty.  There is no approved instruction that tracks a specific regulatory duty.  The trial court refused Plaintiff’s proffered instruction and instead gave Defendant’s instruction that was based on MAI.

The Court of Appeals concluded that the difference between proceeding under a theory that the railroad violated a specific regulatory duty - as opposed to the general LIA statutory duty - is significant.   A violation of the general statutory duty required Plaintiff to prove that the railroad’s cab seats were not “safe to operate without unnecessary danger of personal injury”.   This proof is not required when a railroad allegedly violates a specific regulatory duty because regulations promulgated by the FRA pursuant to the LIA have already been supported by a finding that the regulation is necessary to eliminate unnecessary danger of personal injury.

The Court added that the lack of an approved instruction based on the specific regulatory duty didn’t bar Miller from submitting his theory to the jury, nor did this relieve the trial court of its duty to accurately instruct the jury on applicable regulatory standards.

Related Services: Railroad

Attorneys: John Lord

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The BSCR Missouri Law Blog examines significant developments, trends and changes in Missouri law on a broad range of topics of interest to Missouri practitioners and attorneys and businesses with disputes subject to Missouri law. Learn more about the editor, David Eisenberg.

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