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 February 26, 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.
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
2
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.
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.”
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.
1
All statutory references are to RSMo 2000, as amended.
3
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
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,
4
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
5
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
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.
6
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.
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.,
7
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,
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).
8
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
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.”)
9
(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
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,
10
356 NEW ENGLAND J. MED. 629, 632 (2011). 2 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.” 3 RESTATEMENT (SECOND) OF TORTS § 411. Without
evidence showing a reasonable investigation into the surgeon’s background and
qualifications would have revealed he was unqualified to perform laparoscopic
2
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.
3
The dissent 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 Reg. for Healing Arts, 161 S.W.3d 358, 371 (Mo.
banc 2005) (overruled on other grounds). “‘Incompetency,’ as this Court has said, is a state
of being," which, to prove, requires more than evidence of prior negligent conduct.
Albanna v. State Bd. of Reg. for Healing Arts, 293 S.W.3d 423, 436 (Mo. banc 2009). 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. Albanna, 293
S.W.3d 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 dissent’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
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
damage” do not provide a basis for liability even if they are causal in fact. Callahan, 863
S.W.2d at 865. 4
4
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.
12
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.
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
13
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
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. 5 Nail, 436 S.W.3d at 563. The
5
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
14
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 injury 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. 6
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.
6
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, but must also
include this finding in the verdict director.
15
Conclusion
The Tharps failed to make a submissible case of negligent credentialing. The circuit
court’s judgment is reversed, and, pursuant to Rule 84.14, judgment is entered in favor of
St. Luke’s.
___________________
W. Brent Powell, Judge
Fischer, C.J., Wilson, Russell, Breckenridge and Stith, JJ., concur;
Draper, J., dissents in separate opinion filed.
16
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. )
DISSENTING OPINION
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 in order to overturn the
jury’s verdict. I disagree with its analysis, and therefore, I dissent.
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
of the denial of a JNOV is essentially the same as the overruling of a motion for directed
verdict. Klotz v. St. Anthony’s Medical Center, 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
1
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 where there is a complete absence of probative fact
to support the jury’s conclusion. Klotz, supra.
The principal opinion finds Thomas E. Tharp and Paula M. Tharp’s (hereinafter,
“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, did the hospital sufficiently investigate and act upon any indication of incompetency. 1
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,
1
While the principal opinion recognizes a hospital must “ensure the competency of its
medical staff” when granting staff privileges, the opinion then proceeds to evaluate
whether Mr. Tharp’s surgeon was unqualified. Being competent and being qualified are
two separate inquires that are not equivalent determinations.
2
specializing in hepatobiliary and pancreas surgery. 2 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 to 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 to 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. Kansas 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’ 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
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This is surgery on the gallbladder, liver, and pancreas.
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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.
___________________________
GEORGE W. DRAPER III, JUDGE
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