Hammonds v. Jewish Hospital of St. Louis

DOWD, Judge.

Plaintiff appeals a summary judgment granted in favor of Defendant, Diane Ma-grane, M.D., in a wrongful death/medical malpractice suit against a hospital and several physicians. We reverse and remand.

Plaintiff went to Jewish Hospital’s emergency room with ruptured membranes after her water broke and she began premature labor. Plaintiff was then approximately eight months pregnant. She advised Jewish Hospital she had previously delivered several babies by cesarean section and had been warned by a physician she would have complications with this birth as well.

Jewish Hospital wanted to transfer Plaintiff to City Hospital because she was uninsured. A Jewish Hospital resident, Elihyu Wolfson, M.D., called City Hospital concerning the proposed transfer. Exactly how many people Dr. Wolfson spoke with at City Hospital is disputed; however, it is undisputed he spoke with Joyce Dube, M.D., a City Hospital junior resident. Dr. Dube advised Dr. Wolfson she would have to first check with City Hospital’s chief obstetrics “on call” resident, Defendant Magrane, about accepting the proposed transfer and would then call him back.

At the time of Dr. Wolfson’s phone call, Dr. Dube was involved with an emergency patient. She called Defendant at home to request that Defendant come in to assist with this patient. Dr. Dube also told Defendant about Plaintiffs medical condition and told her that Jewish Hospital wanted to transfer Plaintiff. Defendant told Dr. Dube that City Hospital was required to accept such uninsured transfer patients. Furthermore, Defendant said she would immediately come to the hospital to assist with the emergency patient. Defendant told Dr. Dube to call Jewish Hospital back and arrange Plaintiffs transfer and to have them give Plaintiff Ri-todrine to temporarily prevent active labor during transit between hospitals.

When Defendant arrived at City Hospital, she first assisted with the other patient. Defendant then inquired about Plaintiff. Dr. Dube said she had not yet been able to call Jewish Hospital back due to problems in the unit and a large number of patients.

Jewish Hospital, however, did not wait for Dr. Dube to return its phone call and had already transferred Plaintiff to City Hospital’s emergency room. Jewish Hospital advised neither the Emergency Department *529nor the Labor and Delivery Unit that it had transferred Plaintiff nor did it provide City Hospital with adequate medical information concerning Plaintiffs condition. Plaintiff was, therefore, processed at City Hospital as if she were merely a routine patient and not a high-risk patient. Jewish Hospital did not give Plaintiff any medication to suspend or inhibit labor during the transfer. While at Jewish Hospital, Plaintiffs fetus was still alive, and according to Plaintiffs expert, the fetus was likely still alive when Plaintiff arrived at City Hospital.

Plaintiff apparently arrived in the City Hospital emergency room at approximately 11:30 p.m. Since she was perceived to be a routine patient, she was placed in a room to await a physician. At approximately 12:30 a.m., a custodian noticed Plaintiff was badly bleeding. Plaintiff was then taken to the Labor and Delivery Unit and examined by Dr. Dube, who found no fetal heart tones, cardiac activity, or movement. Plaintiff had gone into shock. It was around this time that Defendant discovered Plaintiff had already been transferred. She examined Plaintiff, confirming Dr. Dube’s assessment that the fetus had died.

Plaintiff filed suit against Jewish Hospital, Dr. Wolfson, Dr. Dube and Defendant. Defendant filed a Motion for Summary Judgment in which she argued she was entitled to judgment as a matter of law because no physician-patient relationship existed between herself and Plaintiff. The trial court granted Defendant’s motion, stating Plaintiff could later seek to rejoin Defendant should further discovery provide a justiciable issue. Plaintiff later filed a Motion for Rehearing and Reconsideration in which she claimed new evidence supported a physician-patient relationship. The trial court overruled this motion. Plaintiff later settled with both Jewish Hospital and Dr. Wolfson and voluntarily dismissed Dr. Dube without prejudice. Plaintiff now appeals the trial court’s order granting Defendant summary judgment.

We review this appeal in accord with the dictates of ITT Comm. Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). Summary judgments are “extreme and drastic remedies)” and “great care” must be used when considering them. Id. at 377. Skepticism towards the use of summary judgments has always existed due to a suspicion since one party will be denied his or her day in court, this “borders on denial of due process.” Id. Accordingly, we review the judgment in the light most favorable to the party against whom it was entered and will give that party the benefit of all reasonable inferences from the record. Id. at 376. We will allow a summary judgment to stand only if there are no factual issues which require a trial, thereby providing movant a right to summary judgment as a matter of law. Id. Summary judgment is not as feasible in negligence eases as it may be in other types of cases. Bruner v. City of St. Louis, 857 S.W.2d 329, 332 (Mo.App.E.D.1993). Contrary to Plaintiff’s brief on appeal, the “slightest doubt” standard has been abandoned and is no longer applicable. ITT Comm. Finance Corp., 854 S.W.2d. at 378.

Plaintiffs one point on appeal argues the trial court erred in granting Defendant summary judgment because there was a genuine issue of material fact concerning the existence of a physician-patient relationship at the time of the alleged negligence. In support of this contention, Plaintiff provides five sub-points of argument. We need only address one part of Plaintiff’s argument since it establishes disputed facts for which we reverse and remand. This, however, should not be construed as an opinion either for or against the validity of the other sub-points; we merely find it unnecessary to address them.

Plaintiffs Petition alleged Defendant and Dr. Dube were negligent in their failure to timely communicate with Jewish Hospital, eventually resulting in the death of Plaintiffs fetus due to their failure to ensure Plaintiffs timely and proper treatment. Additionally, Plaintiff contends Defendant was negligent in supervising Dr. Dube. We find genuine factual disputes exist regarding this assertion. Therefore, the trial court erred in granting summary judgment. Initially, we note the wording of Plaintiffs Petition may not have been as clear and specific as it could have been regarding negligent supervision. How*530ever, we believe the Petition, which clearly pleaded negligence as a cause of action, is adequate when viewed in the proper light. “Summary judgment is appropriate ... only when no theory within the scope of the pleadings, depositions, admissions and affidavits filed would permit recovery ...” Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984). See also, Golf Digest/Tennis, Inc. v. Diode, Inc., 849 S.W.2d 617, 618 (Mo.App. E.D.1993); Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 495 (Mo.App.1990).

The Petition alleged Defendant Dube needed to check with Defendant regarding Jewish Hospital’s proposed transfer of Plaintiff and that Defendant was the one who told Dr. Dube what medication to prescribe. This allegation, when viewed in the appropriate light, clearly implies Dr. Dube needed Defendant’s approval or instruction regarding the transfer. Furthermore, Plaintiffs Motion in Opposition to Defendant’s Motion for Summary Judgment referred to Defendant as the chief resident and more precisely stated Defendant was “negligent as supervisor of Dr. Dube.” Plaintiffs Motion for Rehearing stated Dr. Dube telephoned Defendant that evening for advice, and that Defendant was going to the hospital to “take care of’ Dr. Dube’s problems in the unit.

Depositions of Plaintiffs experts, which were before the trial court, also support a theory of negligent supervision. Plaintiffs experts stated Defendant “was Dr. Dube’s supervisor, and ultimately responsible for any actions that Dr. Dube did or didn’t do.” Plaintiff also presented expert testimony that Defendant’s conduct fell below the appropriate standard of care and that there was a “major problem for malpractice” regarding the delay in treatment.

Viewing all that was before the trial court in the appropriate light, we believe it erred in granting summary judgment. When looking at the judgment in the light most favorable to Plaintiff and giving Plaintiff the benefit of all reasonable inferences from the record, we believe the trial court erred in its judgment. ITT Comm. Finance Corp., 854 S.W.2d at 376. The theory of negligent supervision can be discerned when reviewing the pleadings, depositions and affidavit before the trial court. Zafft, 676 S.W.2d at 244.

From the facts presented, it appears Dr. Dube owed a duty of care to Plaintiff, and hence, liability could be imposed on Dr. Dube for any negligence involved. Snelling v. Middleton, 706 S.W.2d 891, 892 (Mo.App.1986). Plaintiff claims a physician is responsible for the negligence of those he or she supervises, citing to Burns v. Owens, 459 S.W.2d 303, 305 (Mo.1970). The Bums court stated:

As a general rule a physician is not liable for the negligence of hospital nurses, attendants, or interns who are not his employees unless they perform work or duties for him under his supervision and control, ... or unless the negligent acts were performed under conditions where, in the exercise of ordinary care, he could or should have been able to prevent their injurious effects and did not do so. Id.

We agree with Defendant that normally physicians are absolved of liability for the negligence of other hospital employees. Burns, 459 S.W.2d at 305. However, we believe a factual dispute remains concerning whether Plaintiff’s situation falls within an exception to this general rule. Defendant may be liable for any negligence of Dr. Dube if Dr. Dube were working or performing duties for Defendant and were under Defendant’s supervision and control or if Defendant could have prevented the death of Plaintiffs fetus by exercising ordinary care. Id. In fact, Dr. Dube stated in her deposition that Defendant was her immediate supervisor that evening. Dr. Dube called Defendant to ask if City Hospital were required to accept Plaintiff’s transfer. Defendant instructed Dr. Dube to call Jewish Hospital and arrange the transfer. Defendant further told Dr. Dube what medication to have Jewish Hospital administer prior to Plaintiff’s transfer. Dr. Dube failed to do either of these things. Defendant did not follow up until after seeing to another patient. When Defendant did ask about Plaintiff, she apparently did nothing after being told Dr. Dube never called Jewish Hospital back.

There are sufficient facts from which we may infer Dr. Dube was performing duties *531for Defendant. If Dr. Dube had called Jewish Hospital as Defendant instructed, she would have been told Plaintiff had already been sent to City Hospital. Then, regardless of any negligence on the part of Jewish Hospital, City Hospital’s Emergency Department would have been expecting Plaintiff and would have known to send her immediately to Labor and Delivery.

In Plaintiff’s Motion for Rehearing, she enclosed a portion of her expert’s deposition in which he stated since Defendant prescribed Ritodrine, she should have known Plaintiff would have needed to get to the Labor and Delivery Unit as quickly as possible. Therefore, Defendant should have either instructed Dr. Dube to immediately notify the emergency room at City Hospital of Plaintiff’s impending transfer or done so herself. Defendant knew City Hospital had to accept uninsured transfer patients such as Plaintiff, so she knew Plaintiff would be transferred at some point. Plaintiff claims since Defendant knew the gravity of her medical condition, Defendant should have checked sooner with Dr. Dube and then done something when she discovered Dr. Dube had not placed the call as instructed. We assume Plaintiff is arguing Defendant should have again ordered Dr. Dube to place the call to Jewish Hospital, called the City Hospital emergency department to warn about Plaintiff’s high-risk condition and impending transfer, or called Jewish Hospital herself.

As we have explained, viewing all that was before the trial court in the appropriate procedural light,1 we feel it erred in granting summary judgment in favor of Defendant. The facts and inferences viewed favorably to Plaintiff disclose an existing factual dispute whether Defendant was negligent in supervising Dr. Dube by not following up her orders in a more timely fashion. Therefore, we reverse the summary judgment granted in favor of Defendant and remand for further proceedings.

CRANE, P.J., dissents in dissenting opinion. CRANDALL, J., concurs in opinion of DOWD, J.

. The case cited by the dissent regarding negligent supervision (Dine v. Williams, 830 S.W.2d 453 (Mo.App.W.D.1992)) involved a review of alleged trial court evidentiary error, not at the summary judgment stage as in the present case, but after a trial. Appellate review of a trial court’s action excluding evidence during trial is very deferential, Brown v. Hamid, 856 S.W.2d 51, 56 (Mo. banc 1993), for such rulings are presumed correct. Anglim v. Missouri Pacific R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992), cert. denied,-U.S.-, 113 S.Ct. 831, 121 L.Ed.2d 701.