Downey v. Mitchell
Decision Date | 04 August 1992 |
Docket Number | No. 61058,61058 |
Citation | 835 S.W.2d 554 |
Parties | Lisa DOWNEY, Appellant, v. Thomas J. MITCHELL, M.D., and Missouri Baptist Hospital-Sullivan, Respondents. |
Court | Missouri Court of Appeals |
James J. Knappenberger, Samuel W. Panos, St. Louis, for appellant.
Edward V. Crites, St. Louis, John B. Loveless, St. Clair, Kenneth Brostron, Wendy Wolf, St. Louis, for respondents.
Plaintiff, Lisa Downey, appeals from the trial court's order dismissing her medical malpractice action against Dr. Thomas J. Mitchell and Missouri Baptist Hospital of Sullivan.
Plaintiff filed a petition alleging medical malpractice by defendants for their unauthorized performance of a tubal ligation during her cesarean section delivery. The trial court dismissed the petition for failure to state a claim and failure to file medical opinion affidavits as required by § 538.225 RSMo 1986. However, the court granted plaintiff thirty days to amend her petition and file the affidavits.
Within the thirty days, plaintiff filed an amended petition but failed to file the affidavits. Defendants again moved to dismiss, and plaintiff moved for an extension of time to file the affidavits. The court rejected plaintiff's motion; four days later, she filed an affidavit.
Thereafter, the trial court sustained defendants' motions to dismiss. The court dismissed defendant Missouri Baptist with prejudice for plaintiff's failure to state a claim upon which relief can be granted. The court dismissed Dr. Mitchell without prejudice for plaintiff's failure to comply with § 538.225.2. The court denied plaintiff's motion for rehearing and for leave to amend her first amended petition and to amend the affidavits.
On appeal, plaintiff asserts the trial court erroneously granted defendants' motions to dismiss and denied her motion for leave to amend her petition and affidavits.
Since the dismissal of plaintiff's petition against Dr. Mitchell was without prejudice and plaintiff has chosen to refile a second suit against him, there is no final judgment of plaintiff's claim against Dr. Mitchell. Accordingly, we are without jurisdiction and plaintiff's appeal as to Dr. Mitchell is dismissed. Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 506 (Mo. banc 1991).
Turning to the dismissal with prejudice as to defendant Missouri Baptist, we look to the allegations of plaintiff's first amended petition, assuming every fact alleged in the petition to be true and giving the plaintiff the benefit of every favorable inference which may be reasonably drawn from the facts pleaded. Magee v. Blue Ridge Professional Building, Co., Inc., 821 S.W.2d 839, 842 (Mo. banc 1991).
In her first amended petition, plaintiff alleges Missouri Baptist is vicariously liable for the negligence of its agents, servants and employees who assisted Dr. Mitchell. Plaintiff claims these agents, servants, and employees--three registered nurses and one anesthetist--failed to monitor and review her records, which showed she did not consent to the performance of a tubal ligation, and "stood by and watched" instead of intervening after Dr. Mitchell began the surgical procedure.
Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984).
The allegations in plaintiff's first amended petition failed to allege facts showing the existence of a duty on the part of the nurses and the anesthetist to intervene in Dr. Mitchell's performance of surgery upon plaintiff. The substance of plaintiff's allegation is that the records of the hospital reflect plaintiff's consent only to "child birth through Cesarean Section," but that the hospital's employees assisting in the surgery failed to review these records, to discover the absence of consent to tubal ligation, failed to "intervene during the course of Dr. Mitchell's surgical procedures." The hospital and its employees are not required to interfere with the physician-patient relationship. ...
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