Millard v. Corrado

• Decision Date: 14 December 1999
• Citation: Millard v. Corrado, 14 S.W.3d 42 (Mo. App. 1999)
• Parties: (Mo.App. E.D. 1999) William Millard and Marjorie Millard, Plaintiffs/Appellants, v. Joseph A. Corrado, M.D., Defendant/Respondent. Case Number: ED75420 Missouri Court of Appeals Eastern District Handdown Date:
• Court: Missouri Court of Appeals

14 S.W.3d 42 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

William Millard and Marjorie Millard, Plaintiffs/Appellants, v. Joseph A. Corrado, M.D., Defendant/Respondent.

Case Number: ED75420

Missouri Court of Appeals Eastern District

Handdown Date: 12/14/99

Appeal From: Circuit Court of the City of St. Louis, Hon. Robert Dierker

Counsel for Appellant: Stephen Meyerkord, Mark A. Stephens, Evan A. Douthit, Timothy S. Frets, and R. Douglas Gentile

Counsel for Respondent: Robert A. Wulff

Opinion Summary: Plaintiffs William and Marjorie Millard appeal from the trial court's summary judgment in favor of defendant Dr. Joseph Corrado in their negligence action. Plaintiffs claim the trial court erred in concluding that they could not maintain a general negligence claim against Dr. Corrado absent a physician-patient relationship.

REVERSED AND REMANDED

Division Two holds: (1) The Millards pleaded a general negligence claim against Dr. Corrado, even in the absence of a physician-patient relationship. Public policy and the foreseeability of harm to certain patients support the recognition of a duty from Dr. Corrado to Mrs. Millard. Accordingly, "on call" physicians owe a duty to reasonably foreseeable emergency patients to provide reasonable notice to appropriate hospital personnel when they will be unavailable to respond to calls.(2) Material questions of fact exist as to whether there existed a physician-patient relationship between Mrs. Millard and Dr. Corrado.

Opinion Author: REVERSED AND REMANDED. James R. Dowd, Presiding Judge

Opinion Vote: Teitelman, J., concurs; Crahan, J., concurs in result in separate opinion,

Opinion:

Plaintiffs William and Marjorie Millard appeal from the trial court's grant of summary judgment in favor of defendant Dr. Joseph Corrado in their negligence action. Plaintiffs claim the trial court erred in concluding that plaintiffs could not maintain a general negligence claim against Dr. Corrado absent a physician-patient relationship. We reverse and remand.

FACTS

Dr. Joseph Corrado is a general surgeon with active staff privileges at Audrain Medical Center ("AMC") in Mexico, Missouri. On the morning of November 5, 1994, Dr. Corrado was preparing to attend a meeting of the Missouri chapter of the American College of Surgeons in Columbia, Missouri. Several days earlier, Dr. Corrado had filled out the "Surgeon On Call Schedule" for November. Although aware of the upcoming American College of Surgeons meeting, Dr. Corrado scheduled himself as "on call" for that day, presumably because the other two general surgeons on AMC's staff would be on vacation that day. Before leaving AMC for his meeting, Dr. Corrado asked Dr. Ben Jolly if he would cover for Dr. Corrado's calls during the four-hour period he would be out of town. Dr. Jolly agreed to "fill in" for Dr. Corrado even though his training was in orthopedic surgery and he did not have privileges to perform general surgery. Dr. Corrado then left the hospital and drove to Columbia. Dr. Corrado notified no one else at AMC that he would be out of town and would therefore be unable to provide hands-on care to emergency room patients requiring a general surgeon.

Later that morning, Marjorie Millard was involved in an automobile accident in Callaway County, Missouri, near the intersection of Highway 54 and Interstate 70. Mrs. Millard suffered serious trauma, including broken ribs, a ruptured diaphragm, and injuries to her renal vein and artery and her adrenal artery. These injuries produced severe internal bleeding, and she quickly developed hypovolemic shock. At the time of the accident, Mrs. Millard was sixty-three years old.

The accident occurred approximately fourteen miles from Audrain Medical Center and twenty-five miles from the University of Missouri Medical Center located in Columbia, Missouri. A Callaway County ambulance arrived at the scene at 10:28 a.m. When the EMTs commenced treatment, Mrs. Millard had no measurable blood pressure or radial pulse. Her skin was pale, cold and moist. At the time of the accident, AMC held itself out as maintaining a twenty-four hour emergency room with an emergency physician "in house" and a general surgeon "on call" and with equipment to handle surgical trauma patients on an emergency basis. The EMTs elected to transport Mrs. Millard to AMC based on its proximity to the accident and on the belief that AMC operated a twenty-four hour emergency department and therefore would have a general surgeon "on call." The ambulance left the accident scene at 10:49 a.m.. The EMTs radioed AMC's emergency department that they would be arriving with a "Class 1" patient -- a patient in a critical or life-threatening condition -- who was involved in an automobile accident. AMC did not respond to this message.

The ambulance arrived at AMC at 11:07 a.m. where Mrs. Millard received the following treatment: IV fluids were administered and a chest x-ray was done which indicated a reduced lung volume and an increased density of the left hemithorax. This was apparently caused by layering fluid collection. At 11:45 a.m., EMT Gregory Weaver paged Dr. Corrado because he was the general surgeon listed on the call roster, but the page went unanswered. Nine minutes later, Dr. Steve Taylor, the emergency room physician, examined Mrs. Millard and diagnosed her as having an intra-abdominal bleed. Dr. Corrado was paged a second time at 11:55 a.m. Again, Dr. Corrado did not respond.

At approximately 12:00 p.m., AMC personnel attempted to arrange for air transport of Mrs. Millard to the University of Missouri Medical Center, but it was soon learned that the EMS helicopter was grounded due to inclement weather. At 12:08 p.m., Dr. Thomas Welsh and Dr. Jolly entered the emergency department at AMC after completing their rounds. Dr. Welsh and Dr. Jolly evaluated Mrs. Millard and concurred with Dr. Taylor's diagnosis that Mrs. Millard was bleeding internally and needed surgery. Dr. Welsh and Dr. Jolly were not qualified as general surgeons and could not perform this type of surgery. In addition, neither Dr. Welsh or Dr. Jolly had hospital privileges which would permit them to perform this type of surgery.

At 12:23 p.m., Dr. Corrado called the emergency department in response to the pages and spoke with Dr. Welsh. The patient history report prepared by Dr. Welsh provides the following relevant account of the conversation:

We did contact Dr. Corrado by phone. The situation was discussed and the options addressed. It was felt that in view of the extent and nature of the patient's injury, [Mrs. Millard] would be best served by transfer to the University of Missouri Medical Center, where a trauma team was available. It was not felt to be prudent to attempt to care for her at Audrain Medical Center.

Dr. Corrado testified that he was told that AMC had a patient with some intra-abdominal injuries and that the patient was going to be transferred to the University of Missouri Medical Center. After the conversation, Dr. Taylor arranged for Mrs. Millard to be transferred to the University of Missouri Medical Center where a general surgeon would be available to care for her. Her ambulance arrived at the University of Missouri Medical Center at 1:45 p.m. Dr. Roger Huckfeldt, a general surgeon on staff at the University of Missouri Medical Center, performed emergency surgery on Mrs. Millard at 2:15 p.m., some four hours after the accident.

Plaintiffs brought suit against Dr. Corrado alleging negligence and seeking damages for injuries suffered by Mrs. Millard, including the loss of her left kidney, gallbladder, colon and part of her small intestine. Mr. Millard also filed suit for loss of consortium and medical expenses. The Third Amended Petition alleges that as a direct and proximate result of the delay in treatment caused by Dr. Corrado's absence, Mrs. Millard suffered aggravation of the injuries she sustained in the accident and additional serious injuries. Dr. Corrado filed a Motion for Summary Judgment in which he argued that he was entitled to judgment as a matter of law because plaintiffs failed to establish a physician-patient relationship, a necessary component of a medical negligence claim. The trial court granted the motion and entered judgment in favor of Dr. Corrado. Plaintiffs appeal from the judgment.

STANDARD OF REVIEW

To establish a right to summary judgment, a "defending party" must show either: (1) facts that negate any one of the claimant's elements; (2) that the non-movant, after an adequate period of discovery, has not been able to produce and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993). Only if the movant has made a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law as provided in Rule 74.04, does the burden shift to the non-movant. Id. To preclude the entry of summary judgment, the non-movant must set forth specific facts, by affidavits, depositions, or otherwise, showing that there is a genuine issue for trial. Id. A "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id.

When reviewing a grant of summary judgment, we view the evidence in the light most favorable to the party against whom judgment was entered. Id. at 382. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion and the non-movant is...