Manar v. Park Lane Medical Center, WD

• Decision Date: 14 June 1988
• Docket Number: No. WD,WD
• Citation: 753 S.W.2d 310
• Parties: April MANAR, Appellant, v. PARK LANE MEDICAL CENTER, Respondent. 39736.
• Court: Missouri Court of Appeals

Page 310

753 S.W.2d 310

April MANAR, Appellant, v. PARK LANE MEDICAL CENTER, Respondent.

No. WD 39736.

Missouri Court of Appeals Western District.

June 14, 1988.

Steven L. Hobson and Ronald R. Holliger, Stites, Holliger and Knepper, P.A., Kansas City, for appellant.

William L. Turner and Jeffrey I. Chasen, Gage and Tucker, Kansas City, for respondent.

Before GAITAN, P.J., and TURNAGE and CLARK, JJ.

CLARK, Judge.

April Manar brought suit against respondent Park Lane Medical Center, a hospital, and against five individuals, Patrick T. Little, Ronald W. Hubbard, Lawrence E. Dorman and Guy A. Francis, all osteopathic physicians, and E. Hazen, a certified registered nurse anesthetist. The cause of action was medical malpractice based on claims that the defendants were negligent in the care and treatment of Manar in the course of performing a thyroidectomy. Manar reached a settlement of her claims against all the individuals after suit was commenced. She gave a release, but reserved her claims against the hospital.

Park Lane moved for summary judgment on two grounds, first, that if plaintiff's cause of action against the hospital was based on its vicarious liability for the acts of its agents and employees, the release of the latter operated to release the hospital also as principal and employer. Second, that if plaintiff asserted a theory of "corporate negligence," that is a claim of liability on the part of the hospital for acts or omissions by staff physicians not directly employed by Park Lane, such a cause of action is not recognized in Missouri, or, if it is, Manar's claim is barred by the statute of limitations. The trial court granted Park Lane's motion but did not specify which of the grounds asserted in the motion was relied on as the basis for the decision. Manar appeals contending that summary judgment was improperly granted. We agree and therefore reverse.

The facts of the case applicable to the summary judgment issues are not actually in contest. They are recounted here, however, granting to plaintiff the broadest and most favorable intendment. Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985). So stated, they are as follow.

Manar was suffering from a condition known as hyperthyroidism. She was under the care of Dr. Dorman. After more conservative treatment did not relieve the problem, Dr. Dorman suggested that a thyroidectomy be performed. He introduced Manar to Dr. Hubbard, a surgeon, who in turn called in his associate, Dr. Little. ¹ All of the physicians held staff privileges at Park Lane which entitled them to admit patients to the hospital and to use hospital facilities for various medical services, including surgery. In accordance with the recommendation made for her treatment, Manar entered Park Lane May 18, 1981, and surgery was performed on her May 20, 1981.

The attending surgeon when the operation was performed was Dr. Little. He was assisted by Dr. Hubbard and Dr. Dorman. Although the scheduled procedure was to have been a subtotal or partial thyroidectomy, a complete excision of the gland was accomplished. In the process, the surgeon damaged Manar's laryngeal nerves causing permanent paralysis of her vocal cords. Following surgery, Manar experienced difficulty in breathing and an emergency tracheostomy was performed. A plastic hollow tube was inserted which Manar requires in order to breathe. That condition is permanent.

Park Lane Medical Center is a hospital accredited by the American Osteopathic Association. It is governed by a board of directors and operates under corporate and professional by-laws. The professional by-laws establish standards for patient care and are implemented by the hospital administrator and by the staff physicians. The latter have the initial responsibility to review applications by doctors seeking staff privileges, to monitor the performance of practitioners and to recommend restriction or suspension of privileges, all subject to approval by the hospital board. The medical staff at Park Lane consists of a chief of staff and clinical department chairmen who serve with approval by the board.

At the relevant times, Dr. Hubbard was chairman of the department of surgery at Park Lane. Upon the recommendation of Dr. Hubbard, Dr. Little was appointed to the Park Lane medical staff, thereby entitling him to use of the hospital facilities. Certain restrictions were imposed by Dr. Hubbard upon Dr. Little's entitlement to perform surgery without supervision, a circumstance attributable to Dr. Little's lack of experience. In the case of a thyroidectomy, a procedure requiring a surgeon of advanced skill, Dr. Little was entitled to operate only when supervised. The surgery was actually performed on Manar by Dr. Little under Dr. Hubbard's supervision with the authority in Dr. Hubbard to intervene if needed.

Plaintiff contended in her first amended petition that the surgery performed upon her was below the standard of care of an average physician in that Dr. Little was not skilled, experienced or qualified in the procedure and Dr. Hubbard failed in his duty to supervise his less experienced associate. As to Park Lane, plaintiff asserted the hospital was liable for the acts of the doctors because it extended staff privileges to Dr. Little allowing him to render treatment for which he was not qualified and failed through the negligence of Dr. Hubbard to insure a minimum standard of professional care to patients who relied on the hospital's representation that it had facilities and personnel trained and expert in the rendition of medical services.

As was noted above, Park Lane moved for summary judgment and the trial court granted the motion without stating the grounds. Normally, in this circumstance, it is to be presumed that the order was made based on the grounds specified in the motion. Lipton Realty, Inc. v. St. Louis Housing Authority, 705 S.W.2d 565, 568 (Mo.App.1986). Here, however, the issue is complicated by the fact that Park Lane asserted inconsistent and factually dissimilar bases for summary judgment in alternative form in its motion. We therefore address the contentions separately.

I.

Park Lane's first ground for summary judgment relied on the settlement with and release of the physicians as effecting a concurrent release of the hospital. The contention, generally stated, was: (a) the cause of action against Park Lane relied on its derivative responsibility for the negligent acts and omissions of Drs. Hubbard and Little as agents of Park Lane; (b) the only persons alleged to have been negligent in caring for the plaintiff have been released by settlement; (c) as a matter of law, in the case of a claim based on the doctrine of respondeat superior, a release of the agent releases the principal. This contention is arguable only if it be assumed that the physicians were agents, servants or employees of the hospital, a proposition which Park Lane otherwise denies vigorously in the alternative contentions. If, however, Park Lane is to claim the benefit of the release, it can only do so by accepting the agency status of Drs. Hubbard and Little. Review of the point therefore indulges the assumption that Park Lane was vicariously liable for the acts or omissions of doctors admitted to staff privileges and for similar conduct by clinical department chairmen responsible to supervise the quality of patient care provided by staff members.

Appellant contends that summary judgment was not properly entered based on the release of the named individuals, even if the asserted ground for liability was that of Park Lane as employer or principal of those actively negligent, because the entitlement of a claimant to make a partial settlement is protected by statute. She says § 537.060, RSMo 1986, operates to preclude the unintended release of a non-settling defendant and prevents Park Lane from relying on the release given the other defendants as a ground for summary judgment.

Under the common law, the release of one tort-feasor released others claimed to be responsible for the same injury. Dulaney v. Buffum, 173 Mo. 1, 73 S.W. 125 (1903). The present statute, § 537.060, RSMo 1986, and its predecessor, § 537.060, RSMo 1978, were intended to overcome the common law rule and to permit a claimant to settle with and to release one or more of several joint tort-feasors without impairing the right to collect the balance of the claim from the other joint tort-feasors. The distinction between the 1978 and 1986 versions of the statute is that under the former, claims against non-settling joint tort-feasors were not preserved unless such claims were expressly reserved or the settlement was for less than full satisfaction of the claim. New Amsterdam Casualty Co. v. O'Brien, 330 S.W.2d 859, 864 (Mo.1960); Liberty v. J.A. Tobin Construction Co., 512 S.W.2d 886, 890 (Mo.App.1974). Under the 1986 statute, settling claimants are relieved from the obligation of expressly reserving claims against non-settling defendants. A release given under the 1986 law and silent as to surviving claims against other tort-feasors does not discharge those claims.

In the present case, if Park Lane and the named individuals are deemed to have been joint tort-feasors, the claim against Park Lane was not released, first because it was expressly reserved in compliance with § 537.060, RSMo 1978, and second because § 537.060, RSMo 1986, directs that a release of other tort-feasors must be specifically recited, otherwise the unreleased claims survive.

The question remains, however, as to whether § 537.060 is applicable to a case of vicarious liability of the master for the acts of his servant or agent. In McGinnis v. Chicago, R.I. & P. Railway, 200 Mo. 347, 98 S.W. 590 (1906), the court announced the rule that where the cause of action against the employer is based on the doctrine of respondeat superior and the wrongful act of the employee, exoneration of the employee operates to exonerate the...