Thomas E. Tharp, Appellants/Cross-Respondents v. St. Luke's Surgicenter-Lee's Summit, LLC, Respondent/Cross-Appellant.

SUPREME COURT OF MISSOURI
en banc
THOMAS E. THARP, et al., ) Opinion issued December 10, 2019
)
Appellants/Cross-Respondents, )
)
v. ) No. SC96528
)
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, and
the case is remanded for a new trial. 1
1
This Court’s previous opinion in this matter, issued February 26, 2019, is hereby set
aside.
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
2
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. 2 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.
Jurisdiction
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.”
2
All statutory references are to RSMo 2000, as amended.
3
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.
Analysis
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
4
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
5
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 appellate review
In response to St. Luke’s cross-appeal, the Tharps initially argue St. Luke’s failed
to preserve its insufficient evidence claim. “To preserve a question of submissibility for
appellate review in a jury-tried case, a motion for directed verdict must be filed at the close
of all the evidence ….” Howard v. City of Kansas City, 332 S.W.3d 772, 790 (Mo. banc
2011); see also Sanders 364 S.W.3d at 207 (“[I]f defendant chooses to put on evidence …
[a] motion for directed verdict at the close of all evidence becomes the meaningful motion
to preserve the issue….”). Further, “in the event of an adverse verdict, an after-trial motion
for a new trial or to set aside a verdict must assign as error the trial court’s failure to have
directed such a verdict.” Howard, 332 S.W.3d at 790 (internal quotations omitted).
Accordingly, to preserve a jury-tried issue for appellate review, a party must include the
issue in both a motion for directed verdict at the close of all evidence, if the defendant puts
on evidence, and in a motion for JNOV. Id.
The Tharps do not dispute St. Luke’s made both a motion for directed verdict and a
motion for JNOV. Instead, the Tharps argue the motions were not sufficiently specific to
preserve St. Luke’s insufficient evidence claim for appellate review. Rule 72.01(a) states
a motion for directed verdict “shall state the specific grounds therefor.” The Rule 72.01(a)
standard, however, is not a demanding one. Indeed, this Court has held an oral motion for
6
directed verdict which stated, “We think plaintiff failed to make a submissible case on
issues of negligent causation,” sufficiently preserved the issue for appellate review.
Sanders, 364 S.W.3d at 208. Here, St. Luke’s motion for directed verdict asserted in
pertinent part, “[T]he evidence fails to satisfy all of the necessary elements of … negligent
credentialing …. [T]here is no evidence that would support the conclusion that there was
any breach of duty on the part of defendant that constituted a proximate cause of the event
complained of.” St. Luke’s motion for JNOV stated in pertinent part, “[P]laintiffs failed
to present submissible evidence that [St. Luke’s] breached any legally-recognizable
negligence duty …. [P]laintiffs’ evidence … fails to adequately demonstrate proximate
cause.” These specifically articulated grounds were sufficient to preserve St. Luke’s
insufficient evidence challenge for appellate review.
Insufficient evidence to support a finding of negligent credentialing
St. Luke’s argues the circuit court erred in overruling its motion for JNOV because
the Tharps failed to make a submissible case of negligent credentialing. Specifically,
St. Luke’s argues the evidence was insufficient to support a negligent credentialing claim
because there was no evidence showing Mr. Tharp’s surgeon was incompetent to conduct
the procedure he performed and credentialing the surgeon was not the proximate cause of
Mr. Tharp’s injuries. “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.”
Sanders, 364 S.W.3d at 208.
7
A. Duty
St. Luke’s must owe a duty to Mr. Tharp before it can be liable to him for
negligence. Hoover’s Dairy, 700 S.W.2d at 431; see also LeBlanc, 278 S.W.3d at 207.
“Whether a duty exists is purely a question of law.” Lopez v. Three Rivers Elec. Coop.,Inc.,
26 S.W.3d 151, 155 (Mo. banc 2000). In general, “a duty exists when a general type of
event or harm is foreseeable.” Pierce v. Platte-Clay Elec. Co-op., Inc., 769 S.W.2d 769,
776 (Mo. banc 1989). The scope of a defendant’s duty is a question of law for the court to
resolve. See Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993). This Court has
never before considered the scope of the duty hospitals owe to their patients when deciding
whether to grant staff privileges to a physician. The Restatement of Torts, however, is
instructive:
Section 411 of the Restatement of Torts reads in pertinent part:
An employer is subject to liability for physical harm to third persons caused
by his failure to exercise reasonable care to employ a competent and careful
contractor:
(a) to do work which will involve a risk of physical harm unless it is skillfully
and carefully done.
RESTATEMENT (SECOND) OF TORTS § 411 (AM. LAW INST. 1965) (emphasis added).
Comment a to Restatement § 411 explains the words “competent and careful” in this
context mean a contractor who has the “knowledge, skill, experience, and available
equipment which a reasonable man would realize that a contractor must have in order to
do the work which he is employed to do without creating unreasonable risk of injury to
others.” Id. cmt. a. Applied in the context of credentialing physicians, a hospital,
8
therefore, must “ensure the competency of its medical staff and the quality of medical care
provided through prudent selection, review and continuing evaluation of the physicians
granted staff privileges.” Barry R. Furrow, Managed Care Organizations and Patient
Injury: Rethinking Liability, 31 GA. L. REV. 419, 457 (1997) (internal quotations omitted).
Accordingly, St. Luke’s owes a duty to its patients to credential only competent and careful
physicians because it is foreseeable that incompetent or generally careless physicians could
injure St. Luke’s patients. See Platte-Clay Elec. Co-op., 769 S.W.2d at 776; see also Baker
v. Scott Cty. Milling Co., 20 S.W.2d 494, 499 (Mo. 1929) (“concluding the duty rests on
the employer to select a skilled and competent contractor”). Because Mr. Tharp was
St. Luke’s patient, St. Luke’s owed him this duty.
B. Breach
St. Luke’s must breach a duty owed to Mr. Tharp to be liable for negligence. A
defendant breaches its duty when it “fail[s] to exercise reasonable care to perform [its]
undertaking.” Hoover’s Dairy, 700 S.W.2d at 433; see also Chavez v. Cedar Fair, LP, 450
S.W.3d 291, 294 (Mo. banc 2014) (“The common law ordinary negligence rule requires a
defendant to exercise the degree of care of a reasonable person of ordinary prudence under
similar circumstances ….”). As noted above, a hospital’s undertaking – its duty – is to
credential competent and careful physicians. See Baker, 20 S.W.2d at 499; RESTATEMENT
(SECOND) OF TORTS § 411. A hospital, therefore, fulfills its duty by using reasonable care
to credential competent and careful physicians. See Hoover’s Dairy, 700 S.W.2d at 433;
Chavez, 450 S.W.3d at 294. Accordingly, St. Luke’s did not breach its duty to the Tharps
unless it failed to use reasonable care to determine whether Mr. Tharp’s surgeon was
9
qualified and therefore should be granted staff privileges. Hoover’s Dairy, 700 S.W.2d at
433; see also Lee v. Pulitzer Pub. Co., 81 S.W.3d 625, 634 (Mo. App. 2002) (“In Missouri,
an employer will be held liable for the negligent action of an independent contractor when
the employer fails to exercise reasonable care to hire a competent contractor.”)
(emphasis added); Sullivan v. St. Louis Station Assoc’s, 770 S.W.2d 352, 356 (Mo. App.
1989) (concluding employer must exercise reasonable care in selecting “skilled and
competent” contractor) (emphasis added); RESTATEMENT (SECOND) OF TORTS § 411;
LeBlanc, 278 S.W.3d at 206 (“concluding an employer is liable for an independent
contractor’s negligence when the employer fails to exercise reasonable care in hiring a
competent contractor”) (internal quotations omitted) (emphasis added).
The Tharps contend St. Luke’s breached its duty by credentialing Mr. Tharps’
surgeon because the surgeon did not list all the lawsuits he had defended over his career in
his application for staff privileges as required by St. Luke’s bylaws. The Tharps’ evidence
supporting their negligence theory focuses on St. Luke’s failure to follow its bylaws, but
their evidence fails to address the surgeon’s qualifications. It is true, had St. Luke’s
followed its bylaws by rejecting the surgeon’s application for failing to list his entire
litigation history, Mr. Tharps’ surgeon would not have received staff privileges at
St. Luke’s. However, St. Luke’s failure to follow its bylaws, alone, is insufficient to show
St. Luke’s breached its duty to credential a competent and careful surgeon. Even though
the surgeon did not list every lawsuit he had defended in his career, there was no evidence
showing he was unqualified due to the number of lawsuits the surgeon had defended. In
fact, the Tharps’ own expert admitted there was “no magical number” of lawsuits that
10
denotes a surgeon is unqualified to practice medicine. Indeed, a physician’s specialty can
have a dramatic impact on how frequently the physician is sued over the course of his or
her career. See Anupam B. Jena, et al., Malpractice Risk According to Physician Specialty,
356 NEW ENGLAND J. MED. 629, 632 (2011). 3 The Tharps presented evidence St. Luke’s
deviated from its bylaws, but there was no evidence showing St. Luke’s credentialed an
unqualified surgeon. The record is devoid of any evidence Mr. Tharp’s surgeon lacked the
knowledge, skill, and experience necessary to operate on patients like Mr. Tharp “without
creating unreasonable risk of injury.” 4 RESTATEMENT (SECOND) OF TORTS § 411. Without
3
In a study of more than 40,000 physicians, totaling nearly a quarter-million – physician
years of experience, the authors found, “[t]he proportion of physicians facing a
[malpractice] claim each year ranged from 19.1 percent in neurosurgery, 18.9 percent in
thoracic–cardiovascular surgery, and 15.3 percent in general surgery to 5.2 percent in
family medicine, 3.1 percent in pediatrics, and 2.6 percent in psychiatry,” thereby
demonstrating the dramatic impact a physician’s specialty has on his or her likelihood to
encounter a malpractice claim. Jena¸ et al., supra at 629.
4
The dissenting opinion claims the Tharps presented evidence of incompetence by way of
their expert who testified about the surgeon’s record of other surgeries, including one
which a patient died. Although this is evidence the surgeon fell below the standard of care
in the past, falling below the standard of care “is evidence of ordinary negligence, but not
incompetency.” Tendai v. Mo. Bd. of Registration for Healing Arts, 161 S.W.3d 358, 371
(Mo. banc 2005), overruled on other grounds by Albanna v. State Bd. of Registration for
Healing Arts, 293 S.W.3d 423, 428 n.2 (Mo. banc 2009). “‘Incompetency,’ as this Court
has said, is a state of being,” which, to prove, requires more than evidence of prior negligent
conduct. Albanna, 293 S.W.3d at 436. Even acts of repeated negligence do not support
finding a surgeon is incompetent when there is no evidence that shows a surgeon generally
lacks a professional ability. Id. at 435. Accordingly, to establish incompetence, there must
instead be evidence of the surgeon’s state of being, which shows the surgeon lacks the
“knowledge, skill, experience, and available equipment which a reasonable man would
realize that a contractor must have in order to do the work which he is employed to do
without creating unreasonable risk of injury to others.” RESTATEMENT (SECOND) OF
TORTS § 411 cmt. a. Despite the dissenting opinion’s claims, the Tharps’ expert never
testified the surgeon was incompetent or lacked the knowledge, skill, and experience
necessary to operate on patients like Mr. Tharp without creating an unreasonable risk of
injury.
11
evidence showing a reasonable investigation into the surgeon’s background and
qualifications would have revealed he was unqualified to perform laparoscopic
cholecystectomies, there is no evidence St. Luke’s breached its duty to the Tharps to
credential competent and careful physicians.
C. Causation
Even if a plaintiff establishes a breach of duty, a successful negligence claim
requires the plaintiff to also prove the breach caused the plaintiff damage. Hoover’s Dairy,
700 S.W.2d at 431. To prevail on their negligence claim, therefore, the Tharps must present
evidence that credentialing Mr. Tharp’s surgeon caused Mr. Tharp’s injuries.
In all negligence cases, Missouri courts require the plaintiff to prove the defendant’s
acts were both the actual and proximate cause of the plaintiff’s damage. Callahan v.
Cardinal Glennon Hosp., 863 S.W.2d 852, 862-63 (Mo. banc 1993). Actual cause means
causation in fact. Id. at 861. The test for actual cause asks whether the plaintiff would
have been injured but for some conduct on the defendant’s behalf. Id. at 862. Proximate
cause, also known as legal cause, means “the injury must be a reasonable and probable
consequence of the act or omission of the defendant.” Id. at 865. “Proximate cause
inquires into the scope of foreseeable risk created by the defendant’s act or omission.” Nail
v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 563 (Mo. banc 2014). The proximate
cause requirement ensures events that are “too far removed from the ultimate injury or
12
damage” do not provide a basis for liability even if they are causal in fact. Callahan, 863
S.W.2d at 865. 5
Comment b to § 411 of the Restatement of Torts explains, “The employer of a
negligently selected contractor is subject to liability … for physical harm caused by his
failure to exercise reasonable care to select a competent and careful contractor, but only
for such physical harm as is so caused” by the employer’s failure to use reasonable care
in selecting the contractor. RESTATEMENT (SECOND) OF TORTS § 411, cmt. b (emphasis
added). Further, “if the incompetence of the contractor consists in his lack of skill and
experience…the employer is subject to liability for any harm caused by the contractor’s
lack of skill [or] experience … but not for any harm caused solely by the contractor’s
inattention or negligence.” Id. (emphasis added). The Restatement, therefore, does not
allow recovery against a contractor’s employer if the contractor simply causes harm of any
type or in any manner. Rather, courts must ask “whether the precise manner of a particular
injury was a natural and probable consequence of [the employer’s] negligent act.” Lopez,
26 S.W.3d at 156. Therefore, to prove causation under the negligent credentialing theory,
a plaintiff must show: (1) but for the hospital’s breach of its duty to credential a competent
and careful physician, the plaintiff would not have been injured; and (2) the plaintiff’s
injuries were a natural and probable consequence of the breach of this duty. Otherwise,
there is nothing to link a hospital’s act of credentialing a physician to the patient’s injuries.
5
This Court, in Callahan, illustrated this concept by explaining, “[C]arried to the
ridiculous, ‘but for’ the mother and father of the defendant conceiving the defendant and
bringing him into this world, the accident would not have happened. Obviously, this is not
a basis for holding the mother and father liable.” 863 S.W.2d at 865.
13
When a physician injures a patient, he or she may be liable to the patient for
negligence or other tort. The hospital, however, cannot be liable for the physician’s
negligence under a theory of negligent credentialing unless the patient’s injuries were the
result of the hospital’s breach of a duty it owes to the patient. Because a hospital’s duty to
its patients is to credential competent and careful physicians, a hospital’s act of
credentialing a physician is not the proximate cause of a patient’s injuries unless the
injuries are a consequence of receiving treatment from an unqualified physician. If a
surgeon injures a patient while operating, not because he or she lacks the general
competence or care necessary to perform the procedure, but rather because the surgeon
simply was negligent in that particular instance, the patient’s injuries are not the natural
and probable consequence of credentialing the surgeon. After all, even a supremely
qualified, competent, and careful physician may nevertheless injure a patient through an
isolated negligent act. See Tendai v. Mo. State Bd. of Registration for Healing Arts, 161
S.W.3d 358, 369 (Mo. banc 2005) (overruled on other grounds). In this circumstance,
recovery against the physician may be appropriate because the physician is the one at fault,
but recovery against the hospital is not appropriate because the hospital bears no fault if it
credentialed a competent and generally careful physician. Accordingly, a plaintiff cannot
establish the causation element of a negligent credentialing claim unless there is evidence
showing the patient’s injuries were the natural and probable consequence of the surgeon’s
general incompetence or carelessness.
Here, the Tharps’ evidence supports a finding of actual cause because but for
St. Luke’s credentialing the surgeon in violation of its bylaws, Mr. Tharp’s surgeon would
14
not have operated on him. The evidence, however, does not support a finding of proximate
cause because Mr. Tharp’s injuries were not within “the scope of foreseeable risk” created
by St. Luke’s act of credentialing Mr. Tharp’s surgeon. 6 Nail, 436 S.W.3d at 563. The
Tharps failed to offer any evidence showing Mr. Tharp’s surgeon was unqualified to
perform laparoscopic cholecystectomies and the surgeon’s incompetency or general
carelessness was the proximate cause of Mr. Tharp’s injuries. Because there was no
evidence showing Mr. Tharp’s surgeon was unqualified in this manner and, therefore,
likely to injure any patient, there was insufficient evidence to support a finding St. Luke’s
act of credentialing the surgeon caused Mr. Tharp’s injuries. Accordingly, there was
insufficient evidence to support their negligent credentialing claim. 7
6
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. This
requirement does not appear to be limited to information related to the physician’s
qualifications. Thus, St. Luke’s failure to follow this bylaw requirement may offend other
purposes beyond ensuring the qualifications of the physicians it credentials.
7
Although not raised in this appeal, the verdict director submitting the negligent
credentialing claim was also deficient because it did not require the jury to find Mr. Tharp’s
surgeon to be unqualified. “[A] not-in-MAI jury instruction must follow substantive law
by submitting the ultimate facts necessary to sustain a verdict.” Johnson v. Auto Handling
Corp., 523 S.W.3d 452, 463 (Mo. banc 2017) (internal quotations omitted). Ultimate facts
are facts the jury must find to return a verdict for the plaintiff. See Lasky v. Union Elec.
Co., 936 S.W.2d 797, 800 (Mo. banc 1997) (“The instruction must hypothesize the facts
essential to the plaintiff's claim.”). To hold a hospital liable for negligent credentialing, the
ultimate facts a jury must find are: (1) the hospital credentialed an incompetent or generally
careless physician; (2) the hospital was thereby negligent; and (3) as a direct result of such
negligence, the plaintiff suffered damage. Litigants pursuing a negligent credentialing
claim must not only present evidence of the physician's incompetence or carelessness, but
must also include this finding in the verdict director.
15
The case is remanded for a new trial
Having found the Tharps failed to make a submissible case of negligent
credentialing, the question remains whether to reverse the circuit court’s judgment and
enter judgment in favor of St. Luke’s or to remand the case for a new trial. 8 Rule 84.14
governs the disposition of cases on appeal. The rule states, in pertinent part, “Unless justice
otherwise requires, the court shall dispose finally of the case.” Because the Court finds
justice requires allowing the Tharps an opportunity to attempt to correct their lack of
evidence to support their negligent credentialing claim, the case is remanded for a new
trial.
Rule 84.14 directs the appellate courts of this state to finally dispose of all cases
“[u]nless justice otherwise requires.” In light of this directive, this Court has remanded
cases for a new trial instead of reversing outright when justice requires the plaintiff to have
a second opportunity to make a submissible case. See, e.g., Dietz v. Humphreys, 507
S.W.2d 389, 392 (Mo. 1974). Declining to remand a case for a new trial each time a
plaintiff’s verdict is reversed for insufficient evidence, however, does not necessarily result
in injustice. If this were the rule, any time an appellate court found the plaintiff failed to
make a submissible case, the plaintiff could simply try again, resulting in unending
litigation. Rather, the plaintiff must prove that justice requires he or she receive a second
chance to make a submissible case. Rule 84.14; see also Warren v. Paragon Techs. Grp.,
8
This issue arose in the Tharps’ motion for rehearing, filed pursuant to Rule 84.17(a)(1).
The Court sustained the Tharps’ motion, ordered briefing on the issue whether to remand
the case for a new trial instead of entering judgment for St. Luke’s pursuant to Rule 84.14,
and set the case for limited rehearing on this issue.
16
Inc., 950 S.W.2d 844, 846 (Mo. banc 1997); Dietz, 507 S.W.2d at 392; Kaufman by
Kaufman v. Nagel, 807 S.W.2d 91, 95 (Mo. banc 1991). In other words, the plaintiff must
demonstrate it would violate basic principles of fairness to reverse a judgment in his or her
favor without remanding. Making this showing requires a plaintiff to satisfy a demanding
two-part test. First, the plaintiff must actually possess sufficient evidence to make a
submissible case upon retrial. See Warren, 950 S.W.2d at 846. Second, the plaintiff must
convince the appellate court he or she was justified in failing to present the evidence during
the trial. See Dietz, 507 S.W.2d at 392.
A. The Tharps possess sufficient evidence to make a submissible case upon retrial
The Tharps failed to make a submissible case of negligent credentialing because, by
failing to present evidence that a reasonable investigation into the surgeon’s background
and qualifications would have revealed he was unqualified to perform laparoscopic
cholecystectomies, the Tharps did not establish St. Luke’s breached its duty to the Tharps
to credential a competent and careful physician. Likewise, the Tharps failed to make a
submissible case because they did not establish the surgeon was incompetent or generally
careless and, therefore, failed to establish St. Luke’s act of credentialing the surgeon was
the proximate cause of Mr. Tharp’s injuries. But in their motion for rehearing, the Tharps
submit they possess additional evidence that, if presented upon retrial, would allow them
to make a submissible case of negligent credentialing under the holding of this opinion.
St. Luke’s argues the Tharps’ proffered evidence would not enable them to make a
submissible case because the additional evidence is not sufficient to find the surgeon was
incompetent or generally careless. But St. Luke’s is incorrect.
17
To make a submissible case, the Tharps “must present substantial evidence of every
fact necessary to establish the liability of defendant.” Hannah v. Mallinckrodt, 633 S.W.2d
723, 724 (Mo. banc 1982). “The determination whether plaintiffs made their case requires
the Court to view the evidence that bears upon the elements of [the cause of action] in the
light most favorable to plaintiffs, and give them the benefit of all reasonable inferences to
be drawn from the evidence.” Huttegger v. Davis, 599 S.W.2d 506, 508 (Mo. banc 1980).
“[L]iability cannot rest upon guesswork, conjecture or speculation beyond inferences
reasonably to be drawn from the evidence.” Probst v. Seyer, 353 S.W.2d 798, 802 (Mo.
1962).
The Tharps contend, upon retrial, they will introduce evidence of scores the surgeon
received on several continuing medical education (CME) examinations. The Tharps
submit the surgeon’s low scores on several CME pre-tests “suggest his inability to retain
essential knowledge” necessary to competently and carefully perform the type of surgery
Mr. Tharp underwent. The Tharps also submit they will present more evidence about the
surgeon’s litigation history in an attempt to show he was sued more frequently as he aged
as well as expert testimony as to the alleged significance of those statistics and the general
effect of aging on surgical performance. While the probative value of any of the Tharps’
proffered new evidence is for the jury to decide, 9 the Court finds the proffered additional
evidence could support a finding that the surgeon was incompetent or generally careless.
9
While relevant, the Court takes no position about the admissibility of the Tharps’
proffered new evidence, as “[t]he admissibility of evidence lies within the sound discretion
of the trial court” in light of the manner or circumstance in which it is offered. Nelson v.
Waxman, 9 S.W.3d 601, 603 (Mo. banc 2000).
18
This additional evidence goes to the “fact[s] necessary to establish the liability of
defendant” that the Tharps failed to establish. Mallinckrodt, 633 S.W.2d at 724.
Accordingly, in light of the Tharps’ proffered new evidence, this Court is persuaded they
could make a submissible case of negligent credentialing upon retrial. Warren, 950 S.W.2d
at 846.
B. Justice requires remand because the Tharps were justified in failing to introduce their
proffered new evidence during the first trial
Although pointing to additional evidence that could be introduced upon retrial is
necessary for this Court to order remand upon reversal of a plaintiff’s verdict based on lack
of evidence, it is insufficient by itself to justify remanding a case when the plaintiff failed
to introduce evidence of each essential element of his or her cause of action. All plaintiffs
are entitled to their day in court subject to all attendant rights and responsibilities. One of
those responsibilities is the plaintiff’s burden to prove he or she is entitled to the relief
sought. Conversely, facilitating finality in litigation fosters a sense of confidence and
integrity in the legal system. This is why justice typically would not require, and in fact
would discourage, the plaintiff receiving a second bite at the apple. But under certain
circumstances it would be manifestly unfair to deny a plaintiff the opportunity to attempt
to correct the deficiency the Court found in his or her case.
The Tharps seek a second trial because they did not know what evidence this Court
would require to make a submissible case of negligent credentialing. The Tharps admit
they possessed additional evidence that this Court today holds was essential to their cause
of action but declined to introduce at trial. They contend, however, they were justified in
19
failing to introduce such evidence. Whether a plaintiff was justified in failing to introduce
certain evidence during trial is not conducive to a hard and fast rule, but past cases shed
light on situations in which an appellate court should not fault a plaintiff for failing to
introduce evidence the plaintiffs had in their possession during trial.
In Turner v. Haar, 21 S.W. 737, 737 (Mo. 1893), a plaintiff sued to recover damages
for personal injuries she incurred when the factory in which she worked collapsed during
a severe storm. The jury found for the plaintiff, and the circuit court entered judgment in
her favor. Id. at 738. This Court reversed the circuit court’s judgment on appeal, finding
the plaintiff failed to make a submissible case of negligence against her employer. Id. at
739. This Court recognized that, typically in personal injury cases stemming from the
collapse of a building, “the mere falling of a building, from its own weight and inherent
weakness, or from the action of ordinary storms, would raise a fair presumption of its
insufficiency and unfitness for use.” Id. But the Court then explained:
When … evidence offered by plaintiff to prove the destruction of the building
also discloses the fact that the building was destroyed during the prevalence
of an unprecedented storm,… [t]he prima facie case made by the falling of
the house is thus rebutted by the evidence proving it, and the burden still
rested upon plaintiff to show the insufficiency and unfitness of the building
for the uses to which defendants applied it.
Id. Because the factory collapsed during an “unprecedented storm” and the plaintiff
offered no proof that the building was insecure or dangerous, this Court held she failed to
make a submissible case. Id. The Court declined, however, “to adopt … the rule
commonly applied where plaintiff fails to make out his case by the evidence” and enter
20
judgment for the defendants, holding instead that remand was appropriate because “[t]he
error was one of law, as to what was necessary to be proved by plaintiff.” Id.
Similarly, in Aiken v. Clary, 396 S.W.2d 668, 670 (Mo. 1965), a plaintiff sued a
physician to recover damages for injuries he sustained after undergoing insulin shock
therapy. The plaintiff alleged the physician negligently failed to warn him of the hazards
and risks of that therapy. Id. The jury found for the physician, and the circuit court entered
judgment accordingly. Id. The plaintiff did not present expert medical testimony at trial
as to whether a reasonable physician in similar circumstances would have disclosed the
risks and hazards of insulin shock therapy. Id. at 676.
On appeal, this Court found the plaintiff failed to make a submissible case of
medical negligence because expert medical testimony was necessary to prove the physician
failed to conform to the proper standard of care. Id. at 675. But the Court declined to
affirm the physician’s verdict on that basis, finding the plaintiff justifiably relied on binding
precedent that suggested expert testimony was not necessary in medical negligence cases
involving the physician’s duty to warn of the risks and hazards of a course of treatment.
Id. at 676. The Court instead remanded the case for a new trial. Id. at 677.
This Court has also ordered remand instead of outright reversal in past cases when
there has been a change in the law between the time the case was tried and the time the
case was decided on appeal. Although the law of negligent credentialing did not change
between the time of the Tharps’ trial and this decision, these cases are nevertheless
instructive because they demonstrate this Court’s policy of remanding cases in which a
plaintiff’s verdict was reversed for reasons outside the plaintiff’s control.
21
In Warren, a tenant sued her landlord for damages after sustaining personal injuries
from falling on an icy sidewalk in her apartment complex. 950 S.W.2d at 845. The tenant’s
lease contained an exculpatory clause that purported to release the landlord from liability
for its own negligence. Id. The landlord asserted the exculpatory clause as an affirmative
defense in its amended answer to the tenant’s petition. Id. The tenant neither filed a reply
to the landlord’s affirmative defense nor presented evidence on avoidance of the
affirmative defense. 10 Id. at 846. A jury found in the tenant’s favor. Id. at 845. The
landlord filed a motion for JNOV, arguing the lease’s exculpatory clause precluded the
plaintiff’s suit. Id. The circuit court overruled the motion, holding the exculpatory clause
was void for violating public policy, and entered judgment on the jury’s verdict. Id. The
landlord appealed the circuit court’s denial of its motion for JNOV. Id. This Court
reversed, holding the circuit court erred by finding the exculpatory clause violated public
policy and overruling the motion for JNOV on public policy grounds. Id. at 846. But
instead of simply entering judgment for the landlord, the Court remanded the case for a
new trial. Id. at 847.
While Warren was pending on appeal, this Court handed down its decision in Alack
v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (1996), which held
contracts exonerating a party from future negligent acts “are not prohibited as against
public policy” so long as there is “clear and explicit language in that contract … [that]
10
The Court explained, “Where a reply is required but not filed – and the defendant does
not object – the case proceeds as if plaintiff made a general denial of the affirmative
defense.” Warren, 950 S.W.2d at 846. This meant that, on appeal, the Court would
“review[]the case as if Warren made a reply in accordance with the evidence at trial.” Id.
22
absolve[s] a person from such liability.” Alack was not the first case from this Court to
confirm that exculpatory clauses are not categorically void for violating public policy. See
Rock Springs Realty, Inc. v. Ward, 392 S.W.2d 270, 272 (Mo. 1965). But Alack was the
first case in which this Court expressly set out the characteristics of a valid exculpatory
clause. See 923 S.W.2d at 337.
Based on Alack, which cited Rock Springs Realty, this Court held the circuit court
in Warren erred by overruling the landlord’s motion for JNOV based on its finding that the
exculpatory clause was unenforceable. 950 S.W.2d at 845. But because Alack was the first
case to expressly require an exculpatory clause to contain “clear, unambiguous,
unmistakable, and conspicuous language in order to release a party from his or her own
future negligence,” 923 S.W.2d at 337, the plaintiff in Warren could not have known how
to attempt to show the exculpatory clause in her lease was invalid. The plaintiff’s failure
to present evidence on that point, therefore, was justifiable, and justice required remand
instead of outright reversal because the plaintiff did not have the benefit of this Court’s
guidance on a point that materially affected her case. Warren, 950 S.W.2d at 846.
In Dietz v. Humphreys, a woman sued her brother-in-law, claiming he wrongfully
established six investment accounts on which he was named as partial owner along with
his brother and sister-in-law. 507 S.W.2d at 390. The circuit court entered judgment in
the plaintiff’s favor, finding the defendant had no interest in the money used to fund the
investment accounts and the transactions were presumptively void under the joint account
statutes. Id. at 391. The circuit court based its ruling on this Court’s two most recent cases
interpreting those statutes. Id. at 391-92. While Dietz was pending on appeal, however,
23
this Court decided a case that held the prior construction of the joint account statutes – the
construction applied by the circuit court – was “erroneous and has been misleading to
depositors who have complied with said statutes.” Id. at 391. This Court reversed the
plaintiff’s verdict but declined to finally dispose of the case, choosing instead to remand
for further proceedings. Id. at 392. This Court reasoned “it would be improper and unfair
to the parties, to decide this case on the record made when all the parties . . . were operating
pursuant to the rule announced in the [older] cases.” Id.
This Court’s reasons for ordering remand in each of the above cases are not
identical, but this Court applied the same principle in all four cases. The above cases
demonstrate justice precludes outright reversal of a plaintiff’s verdict and instead requires
remand if a plaintiff’s legal failure was caused not by some strategic decision, avoidable
or invited error, or other intrinsic factor, but by some extrinsic factor outside the plaintiff’s
control. One such extrinsic factor that may justify a plaintiff’s failure to introduce essential
evidence is a plaintiff’s ignorance of the evidence necessary to support a cause of action
when no statute or binding appellate precedent has ever recognized a cause of action and
set forth the evidence required to support the claim.
The Tharps’ confusion as to the evidence necessary to support a negligent
credentialing claim was justifiable for this reason. Although the court of appeals
recognized negligent credentialing as a viable cause of action before the Tharps brought
this suit against St. Luke’s, the court of appeals in LeBlanc did not expressly hold a plaintiff
must present evidence, and the jury must find, that a physician was incompetent or
generally careless to prevail on a negligent credentialing claim in that case. It was not until
24
the instant case that this Court recognized negligent credentialing as a cause of action, set
out the elements of a negligent credentialing claim, and explained the evidence necessary
to support that claim.
When they brought their suit, the Tharps had only a handful of non-binding
appellate decisions for guidance as to the essential evidence necessary to support a
negligent credentialing claim, and none of those cases sets out the elements and necessary
evidence this Court articulates today. The Tharps should not be punished for failing to
introduce evidence when they did not have the benefit of this Court’s guidance as to the
evidence necessary to make a submissible case of negligent credentialing. Because the
Tharps lacked clear guidance on the elements they needed to prove and the evidence they
needed to present to make a submissible case of negligent credentialing, their failure to
introduce evidence that would have allowed them to make a submissible case during their
trial was justifiable.
Similarly to the plaintiffs in Turner, Aiken, Warren and Dietz, the Tharps lacked
guidance from this Court as to the evidence required to make a submissible case of
negligent credentialing. This opinion now provides the Tharps and future plaintiffs with
definitive guidance on the evidence they must present and elements they must prove to
create a submissible case of negligent credentialing. The Tharps possess additional,
relevant evidence that would enable them to make a submissible case upon retrial, and they
were justified in not presenting that evidence during their trial. It would be manifestly
unfair to deny the Tharps an opportunity to attempt to correct the deficiency this Court
finds in their evidence when they were unaware exactly what the law required to make a
25
submissible case of negligent credentialing. The Tharps’ possession of evidence to create
a submissible case upon retrial, combined with their justifiable failure to introduce such
evidence during their trial, supports a finding that justice requires remand in this case. 11
Conclusion
The Tharps failed to make a submissible case of negligent credentialing. The circuit
court’s judgment is reversed, and the case is remanded for a new trial.
___________________
W. Brent Powell, Judge
Wilson, Russell, Breckenridge, Stith, and Fischer, JJ., concur;
Draper, C.J., dissents in part and concurs in part in separate opinion filed.
11
In setting out the elements of a negligent credentialing claim in note 6, supra, this Court
does not intend to suggest any particular language for the verdict director. The Court,
rather, intends only to set out the ultimate facts necessary to sustain a plaintiff’s verdict in
a case of negligent credentialing. Auto Handling Corp., 523 S.W.3d at 463. On remand,
the parties and the circuit court should determine appropriate language for the instruction
in accordance with general principles for drafting not-in-MAI instructions.
26
SUPREME COURT OF MISSOURI
en banc
THOMAS E. THARP, et al., )
)
Appellants/Cross-Respondents, )
)
v. ) No. SC96528
)
ST. LUKE’S SURGICENTER- )
LEE’S SUMMIT, LLC, )
)
Respondent/Cross-Appellant. )
OPINION DISSENTING IN PART AND CONCURRING IN PART
While the principal opinion would make a persuasive closing argument at trial on
behalf of St. Luke’s Surgicenter-Lee’s Summit, LLC (hereinafter, “St. Luke’s”), I believe
the principal opinion reaches beyond the standard of review to overturn the jury’s verdict.
I disagree with its analysis overturning the jury’s verdict; therefore, I dissent from that
portion of the opinion. However, because I maintain Thomas E. Tharp and Paula M.
Tharp (hereinafter, “the Tharps”) have a claim of negligent credentialing, I concur with
the ultimate result of the principal opinion which does not deny the Tharps the
opportunity to present their evidence to a jury.
St. Luke’s challenges the circuit court’s judgment overruling its post-trial motion
for judgment notwithstanding the verdict (hereinafter, “JNOV”). The standard of review
1
of the denial of a JNOV is essentially the same as the overruling of a motion for directed
verdict. Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 769 (Mo. banc 2010). “A
case may not be submitted unless each and every fact essential to liability is predicated
on legal and substantial evidence.” Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo.
banc 2011) (quoting Investors Title Co. v. Hammonds, 217 S.W.3d 288, 299 (Mo. banc
2007)). To determine whether the evidence was sufficient to support the jury’s verdict,
an appellate court views the evidence in the light most favorable to the verdict and the
plaintiff is given the benefit of all reasonable inferences. Keveney v. Mo. Military Acad.,
304 S.W.3d 98, 104 (Mo. banc 2010). This Court will reverse a jury’s verdict for
insufficient evidence only when there is a complete absence of probative fact to support
the jury’s conclusion. Klotz, 311 S.W.3d at 769.
The principal opinion finds the Tharps’ negligent credentialing claim was
insufficient as a matter of law because they failed to present evidence showing
Mr. Tharp’s surgeon was incompetent generally. Demonstrating Mr. Tharp’s surgeon
was incompetent generally was not required, as in fact, the primary question to be
established by the evidence and put to the jury was, and is, whether the hospital
sufficiently investigated and acted upon any indication of incompetency. See Larson v.
Wasemiller, 738 N.W.2d 300, 306-09 (Minn. 2007); Frigo v. Silver Cross Hosp. & Med.
Ctr., 377 Ill. App. 3d 43, 72 (2007). Therefore, this assertion by the principal opinion
mischaracterizes the evidence presented to the jury.
The Tharps presented the expert testimony of a professor of health care
administration, specializing in health care credentialing, and a medical doctor,
2
specializing in hepatobiliary and pancreas surgery. 1 The health care administration
expert found St. Luke’s fell “very much below” the standard of care in credentialing
Mr. Tharp’s surgeon. (Emphasis added). Specifically, the expert testified about records
of other surgeries Mr. Tharp’s surgeon conducted that should have been included in his
credentialing application but were not. The expert further testified about the
circumstances surrounding some of those omitted surgeries, including one wherein the
twenty-two year old female patient died. Additionally, the medical doctor opined Mr.
Tharp’s surgeon fell below the standard of care in Mr. Tharp’s surgery.
It “is the responsibility of the jury, not the court, ‘to determine the credibility of
witnesses, resolve conflicts in testimony, and weigh evidence.’” Cox v. Kan. City Chiefs
Football Club, Inc., 473 S.W.3d 107, 126 (Mo. banc 2015) (quoting State v. Letica, 356
S.W.3d 157, 167 (Mo. banc 2011)). “The jury is the sole judge of the credibility of
witnesses,” and, as this Court has recently become fond of reiterating, it is free to believe
or disbelieve any, all, or none of a witness’s testimony. Keveney, 304 S.W.3d at 105
(quoting Altenhofen v. Fabricor, Inc., 81 S.W.3d 578, 584 (Mo. App. W.D. 2002)).
Contrary to the principal opinion, the jury was presented evidence that
Mr. Tharp’s surgeon was incompetent generally and incompetent in this case specifically,
hence supporting the Tharps’ claims. Because there was not a complete absence of
probative fact to support the jury’s conclusion, as demanded by this Court’s standard of
review, I would affirm the circuit court’s denial of St. Luke’s motion for JNOV. While
1
This is surgery on the gallbladder, liver, and pancreas.
3
my colleagues do not agree with my view of the evidence, I will concur in their ultimate
decision to allow the Tharps to pursue their claim of negligent credentialing.
__________________________
GEORGE W. DRAPER III, JUDGE
4