Missouri Injury Law Blog

We filed a Missouri medical malpractice and wrongful death case against a defendant doctor and hospital prior to the new tort reform statutes that went in to effect on August 28, 2005. After August 28, 2005 we added a third medical malpractice and wrongful death defendant after discovery revealed the doctor was an employee of a Medical Group. Thus the Medical Group is responsible under agency theories. We settled the case with the doctor and the hospital recently and are still pursuing the employer. The employer is trying to claim that since we added them after the tort reform provision went into effect and the other parties have been dismissed venue needs to be redetermined, mainly because they want the case out of St Louis City and moved to St Louis County.

This case or "cause of action" arises from one set of operative facts that the doctor failed to timely diagnose and treat post operative complications of the decedent which lead to his untimely death. The original suit was filed prior to August 28, 2005. Discovery revealed that the defendant doctor was an employee of defendant Medical Group at the time of the medical negligence and that he was working within the course and scope of his employment with the group.

Section §538.305 provides that the new medical negligence Tort Reform Statutes "apply to all causes of action filed after August 28, 2005." The issue is, whether the amended Petition adding the Medical Group is the same cause of action as the original cause of action. Therefore, the term "cause of action" becomes critical to the analysis. This term has been given different meanings by different courts in varied contexts. See lA C.J.S. Actions §14 (2005).

In Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W 3d 315, 318 (Mo. banc 2002), the Supreme Court defined cause of action using the definition given in Blacks Law Dictionary, as a "group of operative facts giving rise to one or more bases for suing." Under this definition, it is apparent that Plaintiffs’ Amended Petition adding the Medical Group raises the same facts for suing under the same theories. The Court continued to state that “ a cause of action remains the same even tough additional or different theories of evidence or law might be advanced to support it. Id. The term “cause of action” refers to the negligent act or omission. State ex. rel. Burns Rowe v. The Honorable Carolyn C. Wittington, case # SC87962 (Mo 2007).

In Collins v. Burg, 996 S.W. 2d 512 (Mo. App. E.D. 1999), the Court noted that the test whether a cause of action is the same involves not only whether the nucleus of operative facts is essentially the same, but also whether the parties necessary to sustain the claim are the same. Id at 515.

In our case, the operative facts are the level of care rendered by the doctor while in the course and scope of his employment. In the original Petition, it is alleged that the doctor acted negligently and now the actual employment of doctor by Medical Group is undisputed, the only dispute is course and scope, not actual employment.

The Medical Group was not "necessary to sustain the claim." Causes of action have long proceeded and juries have long been instructed on the liability of the principal for the conduct of the agent without the agent being a party. Therefore, the new laws do not apply because this cause of action was previously filed. The addition of the Medical Group as a Defendant was not necessary and no theory of liability is raised in the amended Petition, which was not raised in the original petition.