Mulligan v. Truman Medical Center

• Decision Date: 08 July 1997
• Docket Number: No. WD,WD
• Citation: 950 S.W.2d 576
• Parties: Patricia MULLIGAN, Appellant, v. TRUMAN MEDICAL CENTER, Respondent. 52265.
• Court: Missouri Court of Appeals

Page 576

950 S.W.2d 576

65 A.L.R.5th 731

Patricia MULLIGAN, Appellant, v. TRUMAN MEDICAL CENTER, Respondent.

No. WD 52265.

Missouri Court of Appeals Western District.

July 8, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 2, 1997.

Application to Transfer Denied

Sept. 30, 1997.

Stanley J. Goodkin, Clayton, for appellant.

Timothy S. Frets, Randall L. Rhodes, Douthit, Frets, Rouse & Gentile, L.L.C., Kansas City, for respondent.

Before ULRICH, C.J., P.J., and BRECKENRIDGE and SPINDEN, JJ.

BRECKENRIDGE, Judge.

Patricia Mulligan appeals from the trial court's order dismissing her strict products liability action against Truman Medical Center for failure to state a claim. Ms. Mulligan contends that the trial court erred by dismissing her petition upon its finding that hospitals, such as Truman Medical Center, cannot be held strictly liable for defective products. This court finds that Ms. Mulligan sufficiently pleaded a claim for strict products liability; Missouri law permits strict products liability claims to be asserted against hospitals; and the claim is not barred by the provisions of the medical malpractice statute of limitations, § 516.105, RSMo 1994. ¹ Therefore, the dismissal is reversed and the cause is remanded for further proceedings.

In 1986, Ms. Mulligan underwent surgery at Truman Medical Center to have two temporomandibular joint (TMJ) interpositional implants placed in her jaw. ² The TMJ implants contained Proplast, a material manufactured by Vitek, Inc. As a result of an alleged defect in the TMJ implants caused by the Proplast, Ms. Mulligan incurred significant harm to her person. Ms. Mulligan brought a strict products liability action against the hospital and Dr. E.L. Mosby. Ms. Mulligan voluntarily dismissed Dr. Mosby as a defendant. The trial court sustained Truman Medical Center's motion to dismiss for failure to state a claim upon which relief could be granted. Ms. Mulligan appeals the dismissal of her claims against Truman Medical Center.

On review of a trial court's dismissal of a petition for failure to state a claim upon which relief can be granted, "the facts averred in the pleading are assumed to be true and are construed liberally in favor of appellant." Johnson v. Kraft General Foods, Inc., 885 S.W.2d 334, 335 (Mo. banc 1994). "A petition is sufficient to withstand a motion to dismiss for failure to state a claim if it invokes substantive principles of law entitling plaintiff to relief and alleges ultimate facts informing defendant of that which the plaintiff will attempt to establish at trial." Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. banc 1990). A pleading states a claim if there is any basis for relief within the facts pleaded. Yoest v. Farm Credit Bank of St. Louis, 832 S.W.2d 325, 328 (Mo.App.1992).

In her petition, which was premised on both design defect and failure to warn theories of products liability, Ms. Mulligan claimed that, as a direct and proximate result of the TMJ implants, she sustained damages including scarring, adhesions, granulation of tissue, bone changes, bone and tissue destruction and immune system inflammatory responses. Ms. Mulligan also cited constant pain and muscle spasms in her face, head and ears, as well as permanent nerve damage in the lower portion of her face. Finally, Ms. Mulligan alleged that the TMJ implants caused permanent muscle damage making her walk with a limp and severe infections which shortened her life expectancy due to an irreversible heart deficiency.

According to her first-amended petition, Ms. Mulligan first became aware of the damage caused by the TMJ implants in November 1993 because "the destruction process was a gradual deterioration at the biological, pathological and microscopic levels." Ms. Mulligan alleged in count I that the implants were in a defective and unreasonably dangerous condition when sold or transferred to her and that they were put to their normal ordinary use. She asserted in count II that the implants were unreasonably dangerous when put to a reasonably anticipated use without knowledge of their characteristics and that there was not an adequate warning of the danger. Furthermore, according to the petition, Ms. Mulligan incurred hospital and medical bills in excess of $275,000 and suffered lost wages of more than $50,000.

In its answer, Truman Medical Center moved to dismiss Ms. Mulligan's pleading on several grounds. First, it alleged that health care providers cannot be held strictly liable in tort under Missouri case law because health care providers are providers of a service rather than sellers of goods. Second, in the alternative, it claimed that even if Ms. Mulligan successfully stated a claim, she had failed to file her pleading within the applicable statute of limitations of § 516.105.

The trial court dismissed Ms. Mulligan's petition for failure to state a claim upon which relief could be granted. Its order was based on the statutory provisions of Chapter 538 concerning tort actions against health care providers for improper health care. The trial court reasoned that since § 538.300 provides that the strict liability provision of § 537.760 "shall not apply to actions" under Chapter 538, this language prohibits strict products liability claims against health care providers, such as Truman Medical Center.

As her only point on appeal, Ms. Mulligan claims that the trial court erred by dismissing her first-amended petition because it states a valid strict liability claim against Truman Medical Center since: (a) Missouri case law authorizes such suits; (b) Missouri's products liability statute, § 537.760, permits strict liability claims against a hospital; and (c) the statute of limitation provisions of § 516.105 which govern malpractice actions do not bar her strict liability claims.

A pleading alleging strict products liability based on an allegedly defective product must set forth ultimate facts establishing the following elements: (1) the product was sold in the course of the defendant's business; (2) at that time, the product was in a "defective condition unreasonably dangerous when put to a reasonably anticipated use"; (3) the product was put to use in a reasonably anticipated manner; and (4) the plaintiff was damaged as a direct result of a defective condition which existed at the time the product was sold. Fahy v. Dresser Industries, Inc., 740 S.W.2d 635, 637-38 (Mo. banc 1987).

As to the first element, Ms. Mulligan alleged in count I that, as part of its business practices, Truman Medical Center sold the TMJ implants to her in a course of treatment to correct her TMJ dysfunctions. Second, Ms. Mulligan alleged that the TMJ implants were in a defective condition unreasonably dangerous when put to their reasonably anticipated use at the time they were placed in her jaw. Third, Ms. Mulligan's petition contained ultimate facts indicating that the TMJ implants were used in a manner reasonably anticipated, that is to correct her temporomandibular joint dysfunction. Finally, the petition alleged that as a direct and proximate result of the defective condition of the TMJ implants, Ms. Mulligan was injured in numerous ways. These allegations are sufficient to state a claim for strict products liability based on a design defect under the Fahy standard.

A pleading alleging strict liability-failure to warn must contain elements similar to a design defect cause of action:

The elements of a cause of action for strict liability-failure to warn are: (1) defendant sold the product in question in the course of defendant's business; (2) the product was unreasonably dangerous at the time of sale when used as reasonably anticipated without knowledge of its characteristics; (3) the defendant did not give adequate warning of the danger; (4) the product was used in a reasonably anticipated manner; and (5) plaintiff was damaged as a direct result of the product being sold without an adequate warning.

Tune v. Synergy Gas Corp., 883 S.W.2d 10, 13 (Mo. banc 1994). With the exception of the second and third elements, we engage in the same analysis as described for design defect cases. In the second element, there is the additional requirement that the product be used as reasonably anticipated without knowledge of its unreasonably dangerous nature. Ms. Mulligan alleged such facts in her second count. As for the third element, the requirement that the defendant did not give adequate warning of the danger, Ms. Mulligan alleged in her pleading that Truman Medical Center did not give adequate warning of the possible dangers of the TMJ implants. Therefore, under Tune, Ms. Mulligan's petition is sufficient to state a strict liability-failure to warn claim.

Although Ms. Mulligan has successfully stated a strict products liability claim under both design defect and failure to warn theories against Truman Medical Center, this does not end this court's inquiry. Whether strict products liability is available against hospitals is at issue in this case. Both case law and statutory provisions are relevant to this court's determination of that question.

The trial court concluded that § 538.300 mandated a dismissal of Ms. Mulligan's petition. Section 538.300 states that:

The provisions of sections ... 537.760 to 537.765, RSMo, shall not apply to actions under sections 538.205 to 538.230.

Relying on this statute, the trial court dismissed Ms. Mulligan's petition for failure to state a claim based on its interpretation that the language of § 538.300 provides that strict products liability claims are not available against health care providers. In order to determine the validity of this interpretation of § 538.300, this court must consider not only the language of the statute, but also its relationship to the other provisions of the enacting legislation, including the products liability provisions of §§ 537.760 through 537.765 and to the state of the law which the legislature was...