Ssm Health Care v. Radiologic Imaging

• Decision Date: 23 December 2003
• Docket Number: No. ED 82377.,ED 82377.
• Citation: 128 S.W.3d 534
• Parties: SSM HEALTH CARE ST. LOUIS, Plaintiff/Respondent, v. RADIOLOGIC IMAGING CONSULTANTS, LLP, et al., Defendants/Appellants.
• Court: Missouri Court of Appeals

128 S.W.3d 534

SSM HEALTH CARE ST. LOUIS, Plaintiff/Respondent, v. RADIOLOGIC IMAGING CONSULTANTS, LLP, et al., Defendants/Appellants.

No. ED 82377.

Missouri Court of Appeals, Eastern District, Division Three.

December 23, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 26, 2004.

James P. Leonard, St. Louis, MO, for appellant.

Timothy J. Gearin, Cynthia A. Sciuto, St. Louis, MO, for respondent.

Harvey M. Tettlebaum, Lowell D. Pearson, Joanne E. Joiner, Missouri Hospital Association, Jefferson City, MO, for Amici Curiae.

LAWRENCE E. MOONEY, Judge.

A hospital, SSM Health Care St. Louis, was found vicariously liable for the actions of Dr. Koch in a medical malpractice case. The hospital now seeks to recover, by way of indemnity from Radiologic Imaging Consultants, L.L.P. and the RIC partners (collectively the radiologists), the amount of damages assessed against the hospital based on the actions of Dr. Koch, who is an RIC partner. The trial court denied the radiologists' motion for summary judgment, and instead, entered summary judgment in favor of the hospital. The radiologists appeal.¹ Because we hold the hospital may not fairly invoke the use of offensive collateral estoppel to establish its claim for indemnity, we reverse and remand.

Factual and Procedural Background

The hospital's present claim stems from a medical malpractice action brought by Matthew Scott and his mother against St. Louis Health Care Network.² We begin by briefly summarizing that underlying action.

The Scott Lawsuit

Matthew Scott, at the age of seventeen, sustained serious injuries as a result of a sinus infection that spread to his brain. Two days after being treated and released from the hospital's emergency room following a car accident, Matthew returned to the emergency room complaining of a severe headache. At that time, Matthew was examined by Dr. Doumit, the emergency room physician, and underwent a CT scan of his head. The CT scan was read by Dr. Koch, who concluded the scan was normal. Matthew was diagnosed as having a mild concussion and was sent home. Two days later, Matthew collapsed. A spinal tap and CT scan performed at that time revealed an infection of his brain. Matthew underwent numerous surgical procedures, remained in a coma for several weeks, and sustained serious permanent injuries, including a significant degree of paralysis of the right side of his body.³

The Scotts⁴ sued the hospital, Dr. Koch, RIC, and the RIC partners for negligence. Dr. Koch was employed by, and a partner of RIC, which had contracted with the hospital to provide radiological services at the hospital. In their petition, the Scotts alleged, in part, that Dr. Koch was negligent in the manner in which he rendered medical care and evaluation to Matthew, particularly, that he negligently failed to interpret, diagnose and report an abnormality of Matthew's head as shown on the CT scan, and failed to obtain adequate CT studies. As a direct and proximate result of Dr. Koch's negligence, the Scotts alleged Matthew sustained injuries and damages, and his mother incurred an obligation to pay expenses. For their claims against the hospital, the Scotts alleged the hospital was vicariously liable for the alleged negligent conduct of its employee, Dr. Doumit, as well as for the actions of Dr. Koch, who the Scotts alleged was an agent of the hospital. Before trial, the Scotts settled with Dr. Koch and the other radiologists. The Scotts then dismissed the radiologists and proceeded to trial against the hospital.

The jury returned a verdict for the Scotts and against the hospital, assessing 25% of fault based on the negligence of Dr. Doumit and 75% based on the negligence of Dr. Koch, who the jury found was an agent of the hospital. After trial, the hospital requested, pursuant to section 538.230 RSMo. (2000),⁵ that the verdict against it be reduced by the 75% fault apportioned to Dr. Koch's conduct. The trial court denied the hospital's request, finding instead that section 537.060 was the applicable statute, and thus the hospital was liable for the full amount of the damages, reduced only by the amount of the Scotts' settlement with the radiologists.⁶ We affirmed. Scott v. SSM Healthcare St. Louis, 70 S.W.3d 560, 568-9 (Mo.App. E.D.2002). The total monetary judgment against the hospital was $4,945,000.00. Of this amount, $2,068,618.35 is the amount attributable to the actions of Dr. Koch.

Present Action for Indemnity

Following trial, the hospital filed a claim against the radiologists pursuant to section 537.060, alleging it was entitled to recover by way of indemnity the total amount of the damages assessed against the hospital based upon the actions of Dr. Koch. In pleading its claim, the hospital made no allegations of Dr. Koch's negligence or of such negligence causing damages to the Scotts, nor did the hospital allege that the radiologists were acting as the agents of the hospital at the time Dr. Koch rendered care and treatment to Matthew Scott; rather, the petition only referenced that such allegations were made in the Scotts' pleadings. The hospital alleged it was entitled to indemnity for the full amount of damages assessed against it based upon the actions of Dr. Koch because the Scotts had obtained a judgment against the hospital, with 75% of that liability based on the apportionment of fault and the determination that Dr. Koch was an agent of the hospital. In arguments supporting its motion for summary judgment, the hospital contended the radiologists were collaterally estopped from relitigating the issues of Dr. Koch's negligence and the adjudged agency.

The radiologists countered with a motion to dismiss, a response to the hospital's motion for summary judgment, as well as their own motion for summary judgment. Following a hearing on all pending motions, the court denied the radiologists' motion to dismiss, denied their motion for summary judgment, and granted summary judgment in favor of the hospital and against the radiologists, in the amount of $2,068,618.35, plus interest. The radiologists now appeal.

Discussion

First we shall examine the nature and viability of the hospital's claim. The radiologists contend they and the hospital are joint tortfeasors and stand in pari delicto, and thus, indemnity is not an allowable remedy in this case. Rather, the radiologists contend the hospital's claim is really one for contribution, which, the radiologists argue, would be barred by section 537.060 due to their settlement with the Scotts. The radiologists further argue that regardless of how the hospital's claim is characterized, it is barred by section 538.230.

Contribution and indemnity are separate and distinct concepts. Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727, 729 n. 3 (Mo.1982); see generally 18 Am Jur 2d, Contribution § 2; 18 C.J.S. Contribution § 2. Contribution distributes the loss among the tortfeasors by requiring each to pay his proportionate share. Safeway Stores, 633 S.W.2d at 727 n. 3. It is the right of one who has discharged a common liability or burden to recover of another, also liable, the portion he ought to pay or bear. See generally 18 Am Jur 2d, Contribution § 1; 18 C.J.S. Contribution § 2; see also Rowland v. Skaggs Companies, Inc., 666 S.W.2d 770, 773 (Mo.1984). The two primary requisites of the right to contribution are that first, the party seeking contribution and the party from whom it is being sought share a common liability or burden, and second, that the party seeking contribution has discharged more than his fair share of that common liability or burden. See generally 18 C.J.S. Contribution § 5; 18 Am Jur 2d, Contribution § 9; see also McNeill Trucking Co., Inc. v. Missouri State Highway and Transp. Com'n, 35 S.W.3d 846, 847 (Mo.2001)(joint liability is a prerequisite to contribution); Commercial Union Ins. Co. of New York v. Farmers Mut. Fire Ins. Co. of St. Louis County, 457 S.W.2d 224, 226 (Mo.App.1970); Automobile Club Inter-Insurance Exchange, By and Through Club Exchange Corp. v. Farmers Ins. Co., Inc., 646 S.W.2d 838, 840 (Mo.App. E.D.1982)(common liability required). The right to contribution "serves to rectify the unjust enrichment that occurs when one tortfeasor `discharges a burden which both in law and conscience was equally the liability of another.' "Rowland, 666 S.W.2d at 773 quoting Lefar, "Contribution and Indemnity Between Tortfeasors," 81 U.Pa.L.Rev. 130, 138 (1932).

Indemnity, on the other hand, is the shifting of responsibility from the shoulders of one person to another. Safeway Stores, 633 S.W.2d at 727 n. 3; see generally W. Keeton, Prosser and Keeton on The Law of Torts, § 51 (5th edition, 1984). Indemnity is a right that inures to the person who has discharged a duty that is owed by him, but which, as between himself and another, should have been discharged by the other, so that if the other does not reimburse the person, the other is unjustly enriched to extent that his liability has been discharged. Koeller By and Through Koeller v. Unival, Inc., 906 S.W.2d 744, 746 (Mo.App. E.D.1995); 42 C.J.S. Indemnity § 2; 41 Am Jur 2d, Indemnity § 1. This right of indemnity is based on the principle that every one is responsible for the consequences of his own wrongdoing, and if another person has been compelled to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him. 42 C.J.S. Indemnity § 3; 41 Am Jur 2d, Indemnity § 2.

As a general rule, indemnification is allowed in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer. Campbell v. Preston, 379 S.W.2d 557, 559 (Mo.1964); McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788, 793 (Mo.1959). In contrast, when joint tortfeasors are in pari delicto—when each is chargeable with active or affirmative negligence contributing to the injury for which recovery was had—...