Weltscheff v. Medical Center of Independence, Inc.

• Decision Date: 02 September 1980
• Docket Number: No. WD 30554.,WD 30554.
• Citation: 604 S.W.2d 796
• Parties: Christo A. WELTSCHEFF, M. D., Plaintiff-Respondent, v. MEDICAL CENTER OF INDEPENDENCE, INC., a general not-for-profit corporation a/k/a Medical Center of Independence, Defendant-Appellant.
• Court: Missouri Court of Appeals

604 S.W.2d 796

Christo A. WELTSCHEFF, M. D., Plaintiff-Respondent, v. MEDICAL CENTER OF INDEPENDENCE, INC., a general not-for-profit corporation a/k/a Medical Center of Independence, Defendant-Appellant.

No. WD 30554.

Missouri Court of Appeals, Western District.

September 2, 1980.

Kent Snapp, Richard L. Martin, Johnson, Lucas, Bush, Snapp & Burgess, Kansas City, for defendant-appellant.

Henry L. Graf, Kansas City, for plaintiff-respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

TURNAGE, Presiding Judge.

Christo Weltscheff, a medical doctor, filed suit against the Medical Center of Independence in two counts. After a separate trial on the first count, an appeal to this court resulted in the affirmance of the judgment in favor of Weltscheff. Weltscheff v. Medical Center of Independence, 597 S.W.2d 871 (Mo.App.1980). This appeal is from a judgment on Count II finding that Weltscheff was entitled to recover certain fees from MCI, and ordering MCI to account for such fees.

On this appeal MCI contends its motion to dismiss the petition and its after-trial motion for judgment should have been sustained and that the court erred in instructing the jury. Reversed and remanded.

The second count of the petition adopted the first count which simply alleged that Weltscheff and MCI entered into an agreement, a copy of which was attached to the petition, and that Weltscheff had performed all of his duties under such agreement, but that MCI had failed to pay him the agreed wages. The second count further alleged that MCI had been billing and collecting from patients treated in the emergency room for the medical fees of Weltscheff and that Weltscheff had demanded that MCI make an accounting to him showing the sums collected, but MCI had refused to do so. That count further alleged Weltscheff had demanded the money collected from the patients be paid to him, but this had been refused. The prayer was that MCI be required to account to Weltscheff for the money collected from patients treated in the emergency room and for judgment in the amount the court would find on such accounting.

In a conference with the court immediately prior to the commencement of trial, both counsel discussed the issues that would be tried by the jury. The court stated that it found the contract to be ambiguous and thus there was a basis for a jury determination concerning the construction of the contract and that evidence should be received pertaining to its proper construction. The court said it considered Count II to be for money had and received, and for an accounting. On this basis the court said the jury would determine whether or not Weltscheff was entitled to recover fees collected by MCI, and, if so, whether or not MCI would be entitled to a credit for money previously paid to Weltscheff on an hourly basis. The court said if the jury found that Weltscheff is entitled to recover it would later be for the court to determine whether or not an accounting should be made.

The contract in question stated that the purpose of the agreement was "to make prompt emergency treatment available to the community." The hospital agreed to make "available for use of Dr. C. A. Weltscheff" space for emergency treatment, an office, and a sleeping room. The hospital also agreed to provide all necessary and non-expendable equipment, drugs, supplies, furniture and fixtures for operation of the Emergency Department; to repair and maintain equipment; and to provide utilities, laundry and janitor service, painting and decorating. Nurses, other physicians, and non-physician assistance would be provided by the hospital as needed. Other pertinent provisions of the contract include:

7. Dr. C. A. Weltscheff agrees during the term of this agreement, to give prompt emergency treatment to persons who come or are brought to the hospital in need of emergency treatment, irrespective of ability to pay. Emergency treatment is defined in Section 1.

* * * * * *

All patients brought to the Emergency Room Department will be asked if they want their private physician to see them or Emergency Room doctor to see them, and their wish will be followed. If the patient is seen by Emergency Room doctor, then the patient will be referred accordingly to the nature of illness to a staff member specialist or a general practitioner. Dr. Weltscheff will see any patient for evaluation and treatment by request of any staff member but it should be understood that in such case the attending physician has the legal responsibility for the care of this patient. Dr. Weltscheff is working as an independent physician.

8. Patients without a private physician after being examined by the doctor in the Emergency Room shall be referred for follow-up care to the staff members in their respective specialties. Dr. Weltscheff's private patient services will be billed by himself.

The Emergency Room physicians, including Dr. Weltscheff, should use a fee schedule confirmed (sic) generally with the customary charges comparable in the locality. The basic fee schedule should be approved by the Administration and the Executive Committee of the Medical Staff.

Dr. Weltscheff shall receive a basic fee of $15.00 per hour. Two weeks of paid vacation at the current hourly rate of pay.

It is understood that it is necessary that other doctors be employed for the Emergency Department service for total coverage. Dr. Weltscheff will volunteer to put forth his best effort to recruit such physicians who will be paid by agreement between the individual physician and the hospital.

In case Dr. Weltscheff is unable to carry on his duties, he may send a substitute physician who is qualified to treat medical and surgical conditions commonly seen in the Emergency Room. The substitute physician will be compensated by the Hospital at the prevailing salary schedule.

The Hospital will provide clinical services to assist Dr. Weltscheff and in billing and completing third party claim forms and provide routine collection and accounting service.

The guaranteed minimum annual fees will be negotiated with administration of the hospital annually.

9. In addition to the fees charged by the Emergency Room doctor for professional services, the patient may be charged by the hospital for the use of the facilities and supplies of the Emergency Room depending on their demand and need.

10. The Emergency Room doctor shall maintain adequate medical records for patients treated in the Emergency Room on a current basis on a form provided by the hospital.

11. In performing under this agreement, Dr. Weltscheff shall at all times be acting and performing as an independent contractor. The hospital or the medical staff shall neither have nor exercise any control or direction over any other member of the medical staff. The sole interest of the hospital is to assure that medical service in the Emergency Room shall be performed in a competent, efficient, and satisfactory manner. The hospital reserves the right to bring to the attention of Dr. Weltscheff any reported incidence of complaints reflecting on the possibility of improper patient care.

12. Dr. Weltscheff may maintain an office for the practice of medicine outside the hospital, however, his primary interest is to cover the Emergency Room Department, minimum 40 to 50 hours weekly. Dr. Weltscheff is permitted to see his own private patients with emergency conditions in the Emergency Room while he is on duty.

13. Dr. Weltscheff is required to carry malpractice insurance with limits to $100,000.00 to $300,000.00.

14. Dr. Weltscheff is to be engaged in practicing medicine in accordance with the ethical and professional standards of the AMA, the Missouri State Medical Association and the Joint Commission on Accreditation of Hospitals.

15. Disagreement (sic) may be amended at any time by mutual agreement of the parties involved.

The trial proceeded as an ordinary jury trial. After the voir dire and the strikes of the jury panel were made, the court gave MAI 2.01. Counsel made their opening statements and the introduction of evidence followed. The evidence was directed largely, if not entirely, at the question of whether or not the physician fees entered on the patient's record by Weltscheff and later collected by the hospital, belonged to Weltscheff or whether the entire compensation to be received by Weltscheff was the $15.00 per hour mentioned in the contract.¹

Weltscheff's contention that he was entitled to the physician fees collected by MCI was summed up in the following answer given by him during his testimony before the jury:

The basic fee was paid for the services that I did, establishing, organizing, conducting the emergency room, following the employment health, following in conjunction and coordination with the infectious committee department that the nurses' health-in other words, they were routine monthly or bi-weekly examinations, cultures, nose, ears and throat done. Those are the things I did. That is why I was paid the basic fee, sir, and I was called director of the emergency room. That is what I was paid the basic fee (Para. 8) for. That is why it was accepted. If I see patients I will charge them and that is the way we did it. That is why it's written down there. They will provide the billing (Para. 8). If I was not supposed to charge those patients for, why the hospital should agree with me to establishing and collecting system or a billing system or accounting system.

MCI's position was simply that the contract did not specifically say that Weltscheff was to receive any money in addition to the $15.00 per hour plus vacation pay, and, therefore, he was not entitled to any additional...