Kelly v. St. Luke's Hosp. of Kansas City

• Court: Missouri Court of Appeals
• Writing for the Court: ULRICH
• Citation: Kelly v. St. Luke's Hosp. of Kansas City, 826 S.W.2d 391 (Mo. App. 1992)
• Decision Date: 17 March 1992
• Docket Number: No. WD,WD
• Parties: Betty KELLY and Michael Kelly, Appellants, v. ST. LUKE'S HOSPITAL OF KANSAS CITY, Respondent. 44374.

Page 391

826 S.W.2d 391

Betty KELLY and Michael Kelly, Appellants, v. ST. LUKE'S HOSPITAL OF KANSAS CITY, Respondent.

No. WD 44374.

Missouri Court of Appeals Western District.

March 17, 1992.

Thomas E. Hayes, Shamberg, Johnson, Bergman & Morris, Chartered, Kansas City, for appellants.

Thomas W. Wagstaff, Randy P. Scheer, Blackwell Sanders Matheny Weary & Lombardi, Kansas City, for respondent.

Before BERREY, P.J., and FENNER and ULRICH, JJ.

ULRICH, Judge.

Betty Kelly and Michael Kelly, the surviving spouse and son of the Reverend Rex Kelly, deceased, appeal from the judgment in favor of St. Luke's Hospital of Kansas City ("St. Luke's Hospital"). Appellants sued St. Luke's Hospital for the alleged wrongful death of the Reverend Kelly, contending that the hospital is vicariously liable for purportedly negligent emergency room treatment by physicians, Drs. Michael Weaver and Henry Arst.

Appellants' appeal is limited to three issues. First, appellants contend that the trial court erred in striking their amended claim, which averred that St. Luke's Hospital was vicariously liable for the alleged negligence of Dr. Michael Weaver, an independent contract physician, ¹ on a nondelegable duty theory. Second, appellants argue that the trial court erred in refusing to admit into evidence during their case-in-chief an article, authored by Dr. Geoffrey Hartzler, discussing the availability of cardiac treatment at the Mid-America Heart Institute at St. Luke's Hospital. Finally, appellants assert that the trial court erred in refusing to admit in its entirety a letter written by the Reverend Kelly approximately one day before his death. The judgment is affirmed.

On September 27, 1984, the Reverend Kelly complained of burning chest pain to personnel in the emergency room at St. Luke's Hospital. The Reverend Kelly had experienced similar symptoms earlier that day and approximately four to seven days before September 27. Upon his arrival at the hospital on September 27, the Reverend's medical history was taken, a physical examination was performed, and testing, including an EKG, was completed.

After the tests and physical examination were performed at St. Luke's Hospital, Dr. Gerald Peterson, the Reverend Kelly's personal physician, was consulted by a person at St. Luke's Hospital regarding test results. The Reverend Kelly had visited Dr. Peterson earlier on September 27, complaining of the same or similar discomfort. Dr. Peterson had performed tests on the Reverend Kelly similar to those conducted at St. Luke's Hospital. Although a possible cardiac problem was pondered, the Reverend Kelly's symptoms were considered more consistent with gastrointestinal problems and a differential diagnosis was rendered accordingly by Dr. Michael Weaver, the emergency room physician then on duty and Dr. Henry Arst, a resident physician and employee of St. Luke's Hospital. This diagnosis was consistent with Dr. Peterson's conclusion earlier that day. Nevertheless, the Reverend Kelly was offered admission to St. Luke's Hospital to permit monitoring of his medical situation, but he declined. Because the Reverend Kelly refused patient admission to St. Luke's Hospital, he was instructed to see his personal physician, Dr. Peterson, the very next morning for a follow-up examination. The Reverend Kelly did not visit Dr. Peterson's office on September 28, 1984, as advised.

The Reverend Kelly was examined by physicians at least three more times prior to his death on October 3, 1984. On September 30, 1984, the Reverend Kelly experienced discomfort and was seen by a physician at the Arkansas City Memorial Hospital's emergency room in Arkansas City, Kansas. Again, the Reverend Kelly's symptoms were diagnosed as gastrointestinal in nature. On October 1, 1984, the Reverend Kelly was again seen at the emergency room in Arkansas City, Kansas. His symptoms were diagnosed as pneumonia, but the Reverend Kelly declined admission as a hospital patient. The Reverend Kelly was advised to see his personal physician as soon as possible. On October 2, 1984, the Reverend Kelly again saw his personal physician, who continued treating the Reverend Kelly with antibiotics. On October 3, 1984, the Reverend Kelly died suddenly when his heart ruptured.

Appellants sued St. Luke's Hospital following the Reverend Kelly's death. Approximately one week before trial, appellants moved the court for permission to amend their petition by adding two additional theories of recovery in support of their claim against St. Luke's Hospital. Appellants alleged the hospital is responsible for the negligence of independent contract physician, Dr. Weaver, on an apparent agency theory and a nondelegable duty theory. The trial court granted plaintiffs leave to amend.

On October 26, 1990, St. Luke's Hospital filed its motion to dismiss or to strike plaintiffs' claim based on the nondelegable duty theory. Specifically, respondent argued that, although vicarious liability in the context of medical negligence cases had been established under well-recognized theories of agency, ostensible agency, and respondeat superior, Missouri courts have never recognized the theory of nondelegable duty to establish vicarious liability of a hospital for the negligence of an independent contract physician.

The trial court found that the practice of emergency room medicine does not involve inherently dangerous activities or other circumstances necessary to invoke the nondelegable duty doctrine. The trial court also noted the absence of any Missouri appellate decisions regarding the application of a nondelegable duty theory in medical malpractice cases. Based on its findings, the trial court held that the nondelegable duty theory was inapplicable and sustained St. Luke's Hospital's motion to strike appellants' amended claim.

Appellants submitted their case to a jury on both the apparent agency theory for the alleged negligence of Dr. Weaver, and the respondeat superior theory for the alleged negligence of Dr. Arst, a resident/employee of St. Luke's Hospital. The comparative negligence of the Reverend Kelly in failing to visit Dr. Peterson on September 28, 1984, was also submitted to the jury. The jury returned a unanimous verdict in favor of St. Luke's Hospital, finding no fault on behalf of St. Luke's Hospital and no fault on behalf of the Reverend Kelly. Appellants' motion for new trial was overruled by the trial court. This appeal followed.

I

Appellants contend, as their first point on appeal, that the trial court erred in dismissing their amended claim that St. Luke's Hospital was vicariously liable for the nondelegable duties performed by Dr. Weaver, the hospital's emergency room director. Appellants argue that St. Luke's Hospital is vicariously liable for Dr. Weaver's purportedly deficient conduct based on the nondelegable duty doctrine for the following reasons: Missouri statutes and regulations impose nondelegable duties upon St. Luke's Hospital to properly maintain its emergency room; St. Luke's Hospital had a nondelegable duty to avoid the ordinary and peculiar risks of harm involved in the practice of medicine; and St. Luke's Hospital cannot rely upon a secret contract to deny liability for the acts of its emergency room staff.

As a general rule, a party "who contracts with an independent contractor is not liable for the negligent acts of the independent contractor." Brandt v. Missouri Pac. R.R. Co., 787 S.W.2d 781, 782 (Mo.App.1990). However, the law recognizes several exceptions to this rule. Appellants rely upon two recognized exceptions in their appeal. First, statutes or regulations can preclude delegation of certain duties. Blum v. Airport Terminal Serv., Inc., 762 S.W.2d 67, 77 (Mo.App.1988). Secondly, a party may not contract away to independent contractors potential liability for inherently dangerous activities. Ballinger v. Gascosage Elec. Coop., 788 S.W.2d 506, 511 (Mo. banc 1990).

Appellants maintain that St. Luke's Hospital, as a publicly licensed hospital, may not delegate or assign to other entities its responsibilities to provide emergency diagnostic services. Appellants find the authority for their proposition in the state regulations regarding publicly licensed hospitals. Specifically, appellants cite 19 CSR 30-20.021(3)(C)3 ² as the significant regulation. Appellants contend that the term "staff physician" in the regulation is a clear mandate that the particular position held by Dr. Weaver must be filled by a hospital employee, and not an independent contractor. 19 CSR 30-20.021(3)(C)3. Appellants also argue that St. Luke's Hospital's governing board has exclusive responsibility for the operation of the hospital, including the emergency room, pursuant to 19 CSR 30-20.021(2)(A)10, ³ a responsibility which may not be assigned to American Medical Services Association. Section 197.060, RSMo 1986.

Appellants aver that the contract between St. Luke's Hospital and American Medical Services Association, which provides Dr. Weaver's medical services to St. Luke's Hospital as an independent contract physician, is void because it is violative of 19 CSR 30-20.021(3)(C)3 and § 197.060. Furthermore, appellants argue alternatively that if the contract is valid, then these statutes and regulations make the duties assigned by St. Luke's Hospital to Dr. Weaver, which include the management and responsibility of supervising the emergency room at St. Luke's Hospital, nondelegable.

In addition to the statutory and regulatory authority previously cited, appellants also direct this court's attention to the case of Blum as supporting authority. 762 S.W.2d at 77. Blum held that the city of St. Louis was vicariously liable for the negligence of an independent contractor because federal airport regulations imposed a nondelegable duty upon the city to provide certain airport fuel services. Id. Appellants contend that both Missouri statutes and regulations impose upon St. Luke's Hospital...