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Redfield v. Beverly Health & Rehabilitation Services1/30/2001
contribution provided by Section 537.060.
Aequitron designed the ventilator at issue in this case. Appellant's cause of action against Aequitron sounded in strict products liability and negligent design. Sections 538.205 to 538.230 apply to actions against health care providers only. Stalcup v. Orthotic and Prosthetic Lab, Inc., 989 S.W.2d 654, 660 (Mo. App. E.D. 1999). There are public policy reasons behind the enactment of Chapter 538. In Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 507 (Mo. banc 1991), the Missouri Supreme Court stated: "It is readily understood from the history and text of Chapter 538 that the enactment is a legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services." To give effect to the legislative intent of Chapter 538, the protections of the chapter must be provided to the health care providers as listed under Section 538.205(4), as well as to "any other person or entity that provides health care services under the authority of a license or certificate." Section 538.220(4); P.S. v. Psychiatric Coverage, Ltd., 887 S.W.2d 622, 627 (Mo. App. E.D. 1994). Aequitron is, admittedly, not a health care provider as defined under the statute. See Section 538.205; Psychiatric Coverage, Ltd., 887 S.W.2d at 627. Neither does Aequitron provide health care services. See Psychiatric Coverage, Ltd., 887 S.W.2d at 627. Accordingly, the statutory provisions Aequitron cites in its fifth point do not apply to it. Point five is denied.
Beverly also presents a point on cross-appeal. Beverly contends the trial court erred in denying Beverly's motions for directed verdict and for judgment notwithstanding the verdict because: (1) Appellant was precluded from arguing res ipsa loquitur by her presenting evidence showing the actual cause of the event and arguing specific negligence with respect to Beverly; and (2) Appellant failed to present substantial evidence supporting the submission of res ipsa loquitur.
Normally, in a medical malpractice case, a plaintiff is required to establish: (1) an act or omission by the defendant that was not in keeping with the degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant's profession; and (2) that such negligence or omission caused the plaintiff's injury. Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo.banc 1995). However, the doctrine of res ipsa loquitur exists to obviate the need for direct proof of negligence, and allows cases submitted under the doctrine to proceed to the jury even in the absence of direct proof of negligence. Zumwalt v. Koreckij, 24 S.W.3d 166, 168 (Mo. App. E.D. 2000). In order to invoke the doctrine of res ipsa loquitur, a plaintiff must demonstrate: (1) the occurrence resulting in injury does not ordinarily happen if those in charge use due care; (2) the instrumentalities that caused the injury are under the care and management of the defendant; and (3) the defendant possesses either superior knowledge of or means of obtaining information about the cause of the occurrence. Id.; Bass v. Nooney, 646 S.W.2d 765, 768 (Mo.banc 1983).
Once a plaintiff establishes the three elements of res ipsa loquitur, an inference of the defendant's negligence arises. Zumwalt, 24 S.W.3d at 168. A jury can draw an inference of negligence without expert medical testimony. Id. In fact, the doctrine of res ipsa loquitur in a medical malpractice case requires that laypersons know, based upon their common knowledge or experience, that the cause of the plaintiff's injury does not ordinarily exist absent the doctor's negligence. Id. at 169. Once the inference
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