Missischia v. St. John's Mercy Medical Center

• Decision Date: 26 September 2000
• Citation: 30 S.W.3d 848
• Parties: (Mo.App. E.D. 2000) . Arthur J. Misischia, D.M.D., Plaintiff/Appellant/Cross-Respondent, v. St. John's Mercy Medical Center, John J. Delfino, D.M.D., and John J. Delfino, D.M.D., P.C., a/k/a St. John's O&MS, TLD., Defendants/Respondents/Cross-Appellants. Case Number: ED74687-01 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

30 S.W.3d 848 (Mo.App. E.D. 2000)

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

Arthur J. Misischia, D.M.D., Plaintiff/Appellant/Cross-Respondent, v. St. John's Mercy Medical Center, John J. Delfino, D.M.D., and John J. Delfino, D.M.D., P.C., a/k/a St. John's O&MS, TLD., Defendants/Respondents/Cross-Appellants.

Case Number: ED74687-01

Missouri Court of Appeals Eastern District

Handdown Date: 09/26/2000

Appeal From: Circuit Court of City of St. Louis, Hon. Jimmie M. Edwards, Judge

Counsel for Appellant: P. Terence Crebs and Matthew P. Brookman

Counsel for Respondent: Allen S. Boston, Ronald A. Norwood, Richard A. Wunderlich

Opinion Summary: Plaintiff Arthur J. Misischia appeals from the circuit court judgment in favor of respondents St. John's Mercy Medical Center, John J. Delfino, D.M.D., (Dr. Delfino), and John J. Delfino, D.M.D., P.C., a/k/a St. Louis Oral & Maxillofacial Surgeons, Ltd., (O&MS) on plaintiff's common-law claims for tortious interference with business relations, malicious prosecution, abuse of process, retaliation, conspiracy, and slander. St. John's cross-appeals on a denial of attorney's fees. Dr. Delfino and O&MS' cross-appeal on a judgment in favor of plaintiff on his claim for fraudulent misrepresentation against Dr. Delfino.

AFFIRMED.

Division One holds: 1) The trial court did not err in granting summary judgment for St. John's as it is entitled to immunity under the Health Care Quality Improvement Act of 1986. 2) The trial court did not err in dismissing plaintiff's claim for malicious prosecution in that the peer review proceeding did not constitute an administrative proceeding for malicious prosecution purposes. 3) The trial court did not err in dismissing plaintiff's claim for abuse of process in that we decline to extend Missouri law to include the peer review proceeding as administrative proceedings for purposes of an abuse of process claim. 4) The trial court did not err in dismissing plaintiff's claim for retaliation in that his petition failed to state a specific legal provision was violated. 5) & 6) The trial court did not err in dismissing plaintiff's claims for tortious interference against St. John's and O&MS in that St. John's had a legal right to summarily suspend plaintiff's privileges, and plaintiff has no claim against O&MS alone. 7) The trial court did not err in dismissing plaintiff's claims for conspiracy in that the underlying tort claims were either dismissed or there was a defendant's verdict as to one or all defendants, resulting in the lack of a conspiracy. 8) The trial court did not err in limiting plaintiff's discovery as plaintiff was not prejudiced, and there was no abuse of discretion on the part of the trial court. 9) The trial court did not err in refusing to admit into evidence a portion of plaintiff's evidence in that there was no abuse of discretion on the part of the trial court. 10) The trial court did not err in granting defendants' motion for directed verdict and/or refusing to vacate its ruling finding no punitive damages as plaintiff failed to present clear and convincing evidence of evil motive and reckless indifference on the part of defendants. 11) The trial did not err in failing to grant plaintiff's motion for additur in that plaintiff failed to demonstrate that the amount of the verdict was less than fair and reasonable compensation for his injuries and damages. 12) Regarding St. John's cross-appeal, the trial court did not err in denying St. John's motion for attorney's fees under 42 U.S.C. Section 11113 in that plaintiff's claims or litigation conduct was not unreasonable or clearly precluded nor was his litigation conduct vexatious and harassing. 13) Regarding Delfino and O&MS' cross-appeal, the trial court did not err in denying their motion for directed verdict and motion for JNOV on plaintiff's fraud claim in that plaintiff's claim was not barred by the statute of limitations and, alternatively, plaintiff established all the requisite elements of fraud.

Opinion Author: Gary M. Gaertner, Presiding Judge

Opinion Vote: AFFIRMED. Simon and Russell, JJ., concur.

Opinion:

Appellant, Arthur J. Misischia, ("plaintiff"), appeals from the judgment of the Circuit Court of the City of St. Louis, in favor of respondents¹, St. John's Mercy Medical Center, ("St. John's"), John J. Delfino, D.M.D., ("Delfino"), and John J. Delfino, D.M.D., P.C., a/k/a St. Louis Oral & Maxillofacial Surgeons, Ltd., ("O&MS"), on plaintiff's common-law claims for tortious interference with business relations, malicious prosecution, abuse of process, retaliation, conspiracy, and slander. St. John's cross-appeals on a denial of attorney's fees. Delfino and O&MS' cross-appeal on a judgment in favor of plaintiff on his claim for fraudulent misrepresentation against Delfino. We affirm.

Plaintiff brought this suit against St. John's, Delfino and O&MS, for damages in connection with the suspension of his medical and dental staff privileges at St. John's and the termination of his contracts with St. John's and O&MS. After several amendments to plaintiff's original petition and a series of motions to dismiss and for summary judgment, the remaining issues for trial were plaintiff's claims for slander against Dr. Delfino and O&MS (Count IV), tortious interference against Dr. Delfino (Counts V and VIII), and fraud against Dr. Delfino and O&MS (Count VII).

I. FACTS

In 1985, plaintiff became an associate active member of St. John's Medical and Dental Staff in oral and maxillofacial surgery. From November 1987 until July 25, 1994, plaintiff was an active member of St. John's Medical and Dental staff, with his staff privileges renewed bi-annually during this period. Further, from July 1, 1986 through July 25, 1994, plaintiff was employed by St. John's under written contract as associate director of the Department of Oral and Maxillofacial Surgery Residency Program at St. John's.

On July 1, 1987, in addition to above, plaintiff and O&MS entered into a written contract whereby plaintiff agreed to conduct his private practice at the offices of O&MS, for a consideration of fifty percent of plaintiff's receipts up to $300,000, and a declining percentage of his receipts in excess thereof. Delfino was and is the sole director, sole shareholder and President of O&MS.

From February 1993 through the time of plaintiff's summary suspension on October 27, 1993, concerns regarding the training being provided in the Oral and Maxillofacial Surgery Residency Program at St. John's and concerns about unnecessary and excessive surgery performed by Delfino and poor results obtained by Delfino were discussed during regularly scheduled meetings of St. John's Oral & Maxillofacial Surgery Department.

In late June 1993, plaintiff questioned the qualifications of an oral and maxillofacial surgeon who was being recruited to do cleft palate repairs.

On August 13, 1993, Dr. Delfino presented plaintiff with a proposed written employment agreement that was unacceptable to plaintiff.

In late August, 1993, plaintiff met with John Farrell, ("Farrell"), St. John's C.E.O. at the time, regarding the proposed written agreement. At that time, Farrell questioned why 50% of the revenue generated by plaintiff went to O&MS for overhead and office staff, because St. John's provided that to Dr. Delfino and his corporation without charge.

On September 27, 1993, an incident occurred in which, according to an eye-witness report, plaintiff punched a patient in the face when the patient became combative while emerging from anesthesia. The incident was witnessed by Sandra End, ("End"), a surgical assistant, who then notified her supervisor, Judy Toscano, ("Toscano"), a few days later. Toscano, after checking with St. John's Risk Management Department, instructed End to draft a narrative describing the incident. End drafted a narrative and then gave it to Toscano who prepared an incident report and filed it with the Risk Management Office. The report is dated October 14, 1993. End also advised Toscano of a separate earlier episode involving plaintiff, wherein he forcibly shook a patient while calling her "a f---ing adult baby" during a procedure, and then administered a medically unnecessary bolus of versed which typically renders a patient amnesic to recent events. Toscano instructed End to draft a second narrative. End complied and this narrative was attached to a second incident report, dated October 19, 1993.

On October 5, 1993, Farrell spoke with Delfino in an effort to learn the nature of the contract dispute between plaintiff and Delfino. Delfino told Farrell he was dissatisfied with plaintiff's contributions to the private practice and recommended St. John's either not renew or terminate plaintiff's separate contract with St. John's because plaintiff was not fulfilling his teaching obligations as Associate Director of the Oral and Maxillofacial Department of Surgery, ("OMFDS"), Residency Program under the contract. Under the contract, plaintiff could be terminated from the above position for any reason, upon ninety (90) days' written notice. The contract further provided that if it was terminated, plaintiff would automatically lose his medical staff privileges. During this meeting, Delfino allegedly mentioned to Farrell that "[plaintiff] had to take a month off last year.... because of a problem ...."

On October 6, 1993, Toscano informed plaintiff she was about to file the incident reports and alert St. John's about his punching of a patient. Plaintiff did not deny the punching, rather he began surreptitiously compiling confidential medical records of Delfino's patients. Plaintiff eventually took these records to Farrell and accused Delfino of providing improper dental care and treatment and other professional improprieties.

Delfino and John P. Marbarger, M.D., ("Marbarger"), Chief of St. John's Department of Surgery, met regarding plaintiff....