Glidewell v. S.C. Management, Inc.

• Decision Date: 04 June 1996
• Docket Number: Nos. 20055,20103,s. 20055
• Citation: 923 S.W.2d 940
• Parties: Jerry GLIDEWELL, Deceased, by a substituted plaintiff, Deborah Ann Nabors, Personal Representative of the Estate of Jerry Glidewell, Plaintiff-Respondent, v. S.C. MANAGEMENT, INC., d/b/a Twin Rivers Regional Medical Center, Defendants-Appellants. Jerry GLIDEWELL, Plaintiff-Respondent, v. S.C. MANAGEMENT, INC., d/b/a Twin Rivers Regional Medical Center, Defendant-Respondent, v. Dr. Gregory S. WILEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 940

923 S.W.2d 940

Jerry GLIDEWELL, Deceased, by a substituted plaintiff, Deborah Ann Nabors, Personal Representative of the Estate of Jerry Glidewell, Plaintiff-Respondent, v. S.C. MANAGEMENT, INC., d/b/a Twin Rivers Regional Medical

Center, Defendants-Appellants.

Jerry GLIDEWELL, Plaintiff-Respondent, v. S.C. MANAGEMENT, INC., d/b/a Twin Rivers Regional Medical

Center, Defendant-Respondent, v. Dr. Gregory S. WILEY, Defendant-Appellant.

Nos. 20055, 20103.

Missouri Court of Appeals,

Southern District,

Division Two.

June 4, 1996.

John L. Oliver, Jr., Oliver, Oliver & Waltz, Cape Girardeau, for defendant-appellant-respondent S.C. Management, Inc., d.b.a. Twin Rivers Regional Medical Center.

J. Michael Payne, Limbaugh, Russell, Payne & Howard, Cape Girardeau, for defendant-appellant Dr. Gregory S. Wiley.

Gary B. Brewer, Ward & Reeves, Caruthersville, for plaintiff-respondent.

SHRUM, Chief Judge.

(On December 13, 1995, this court issued an opinion affirming the judgments of the trial court. On February 20, 1996, by order of the Missouri Supreme Court this cause was transferred to that court. On May 28, 1996, the supreme court entered an order retransferring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.)

The multiple issues dealt with in this opinion stem from a claim for medical negligence asserted by Jerry Glidewell (Plaintiff) against S.C. Management, Inc., d/b/a Twin Rivers Regional Medical Center (Hospital) and Dr. Gregory Wiley (Physician). ¹ Plaintiff's only claim against Hospital was that it was vicariously liable for Physician's negligence in failing to diagnose colorectal cancer in Plaintiff. Hospital filed a cross-claim for indemnity from Physician for any sums Plaintiff recovered against Hospital.

Before trial, Plaintiff settled with Physician, executing a release that reserved his claim against Hospital. Plaintiff then tried his claim against Hospital to a successful conclusion before a jury. Afterward, the trial court sustained Hospital's motion for summary judgment against Physician.

This consolidated appeal contains two cases. In No. 20055, Hospital appeals from the judgment adverse to it. Hospital raises ten points on appeal. Specifically, Hospital contends that Physician's release exonerated Hospital (Point I); the trial court erred in failing to instruct on apportionment of fault (Point II); Plaintiff's petition was not sufficient to state a claim for which relief could be granted (Point III); Plaintiff's agency pleading was insufficient (Point VI); the trial court erred in allowing certain argument and testimony (Point VII); Plaintiff's verdict directing instruction was erroneous (Point VIII); Plaintiff's closing argument as it addressed the issue of agency was prejudicial (Point IX); and Plaintiff's evidence of agency was insufficient (Point X). Finally, Hospital raises issues with respect to the admissibility of the opinions provided by Plaintiff's experts (Points IV and V). Finding no reversible error as averred, we affirm in No. 20055.

In No. 20103, Physician appeals from the judgment adverse to him on Hospital's cross-claim for indemnity. He raises two points. First, he contends that § 538.230 applies to this case, and thus Physician could settle with Plaintiff without being subjected to Hospital's claim for indemnity. Second, Physician argues that the indemnity claim was not mature as the Hospital had not made payment to Plaintiff and therefore had not sustained an actual loss. We disagree on both points. We affirm in No. 20103.

CASE NO. 20055

--HOSPITAL'S APPEAL

Plaintiff first went to Physician in July of 1992 in connection with a seizure disorder. On April 5, 1993, Plaintiff saw Physician, this time complaining of rectal bleeding. During that visit, Physician did a digital rectal examination, but performed no other examinations. His diagnosis was that Plaintiff had hemorrhoids and anal fissures.

Throughout the litigation, Plaintiff's expert testimony focused on Physician's failure to perform a sigmoidoscope examination on April 5, 1993, concluding that such an examination would have detected the tumor in Plaintiff's colorectal region at that time.

Plaintiff saw Physician eleven times in the next seven months, with complaints of rectal bleeding, diarrhea, change in bowel habits, weight loss, and abdominal pain. Plaintiff went to the emergency room four times during this period, and was admitted to Hospital in October 1993. Physician never diagnosed colorectal cancer.

Plaintiff's colorectal cancer was ultimately diagnosed by another physician, and a colostomy was subsequently performed. Despite the procedure and follow-up treatment, the prognosis was that Plaintiff was terminally ill. He died shortly after trial.

In October 1994, Plaintiff settled his claim against Physician for the sum of $67,500 in exchange for a release which recited that Plaintiff could continue to pursue Hospital. Based on the settlement, the trial court dismissed Plaintiff's action against Physician on November 1, 1994.

As previously stated, Plaintiff was indeed successful at trial against Hospital, receiving a jury verdict of $313,000. The trial court entered a judgment for $245,500, which was the verdict balance after Hospital was credited with the $67,500 settlement paid by Physician. The appeal in No. 20055 followed.

Other facts are recited when relevant to our analysis of the various points.

Did Plaintiff's Settlement With Physician Release Hospital?

In its first point, Hospital contends that the trial court erred when it rejected Hospital's various requests that judgment be entered for it as a matter of law. Relying in large measure on Max v. Spaeth, 349 S.W.2d 1 (Mo.1961), and Burnett v. Griffith, 739 S.W.2d 712 (Mo.banc 1987), Hospital argues that when Plaintiff settled with Physician, that agreement operated to release Hospital because its liability was solely derivative. Hospital insists that language in Max that "[a] valid release of a servant from liability for tort operates to release the master" is good law and governs this case.

In response, Plaintiff argues that § 537.060 now controls and authorizes a claimant to settle with an agent for his tortious conduct without thereby releasing the master whose only liability is derivative. ² As case authority for that proposition, Plaintiff cites Aherron v. St. John's Mercy Medical Center, 713 S.W.2d 498 (Mo.banc 1986), and Manar v. Park Lane Medical Center, 753 S.W.2d 310 (Mo.App.1988), the latter being a case said to be directly in point.

Hospital concedes that Manar is directly in point, yet insists that it was wrongly decided. The Western District in Manar held that the release of claims against five medical practitioners did not operate to release the plaintiff's derivative claims against a hospital.

In urging that Manar should be disregarded, Hospital points out--correctly so--that the decision "turns entirely on the assumption that '[§ 537.060] serves to preserve claims in cases of vicarious liability against tortfeasors not included in the partial release.' " Hospital insists that this reasoning is illogical and should not be followed by this court. This ignores the fact that the Manar court obviously believed its decision was mandated by Aherron, 713 S.W.2d 498. If Manar correctly read and applied Aherron, then we too are bound by Aherron.

Manar's analysis of Aherron proceeded thusly:

"Although the present case is the counterface of Aherron ..., the [Aherron ] decision is of critical and controlling significance because of the basis employed in the decision. Aherron expressly disclaims any need to determine whether, under Missouri law, a release of the master also acts as a release of the servant. Instead, the Aherron decision is based entirely on the effect of § 537.060, RSMo 1986, which, it is held, operates to preclude the unintended release of persons liable in tort. In the language of Aherron, 'An employee and a vicariously liable employer are "persons liable in tort for the same injury or wrongful death," and therefore subject to the statutory provisions controlling partial settlement and release.' Aherron, 713 S.W.2d at 501.

"In either situation, the partial release of the employer or the partial release of the employee, the basis for decision in Aherron holds that the statute serves to preserve claims in cases of vicarious liability against tort-feasors not included in the partial release." (Emphasis ours.)

Manar, 753 S.W.2d at 313. In our view, the Western District correctly read Aherron as compelling the decision it made in Manar.

We make these additional observations about Aherron's controlling effect on this case. As the Aherron court noted, the second and third sentences of § 537.060 ³ are "substantially the same as § 4 of the Uniform Contribution Among Tortfeasors Act (1955 Revision), 12 U.L.A. 57 (1975) (hereafter UCATA)." 713 S.W.2d at 501. Many courts have struggled with the issue of whether UCATA § 4 abrogates the common law principles that "release of a servant from liability for tort operates to release the master ... [and] likewise release of the master releases the servant...." See Max, 349 S.W.2d at 3 (mentioning such common law principles). Several of these courts have concluded that the 1955 version of UCATA § 4 applies to vicarious liability, all of them holding that § 4 expressly applies to all "persons liable in tort." See Saranillio v. Silva, 78 Hawai'i 1, 889 P.2d 685, 693-96 (1995) (discussing cases under both versions of UCATA).

Although Hospital repeatedly insists that a master is not a joint tortfeasor (actually, § 537.060 does not contain the word "joint"), its exhortations to not follow Manar ignore the fact that the supreme court has already decided this integral question. Our supreme court specifically held in Aherron that "a vicariously liable employer as well as its employee are tortfeasors " within the meaning...