by W. Dudley McCarter
Evan Montgomery suffered lower back pain and his neurologist referred him to St. Anthony's Medical Center. At St. Anthony's, South County Radiologists, the provider of radiological services for the hospital, performed an MRI on Montgomery's lumbar spine. On February 14, 1995, Dr. Szoko interpreted the films of Montgomery's spine; on July 31 and November 3 of 1995, two other doctors from South County also reviewed the films. None of the three radiologists noticed or diagnosed the cancerous tumor on his spine. After his last appointment with South County, Montgomery consulted another radiologist, who detected the tumor, subsequently diagnosed as osteosarcoma. On May 23, 1997, Montgomery filed suit against Szoko, South County and the other two radiologists who reviewed his films. The trial court granted summary judgment for both South County and Szoko on the grounds that the Montgomery suit was filed beyond the two-year statute of limitations. The Supreme Court of Missouri affirmed the judgment for Szoko, but reversed as to South County in Montgomery v. South County Radiologists, No. SC 83293 (Mo. banc 2001).
Section 516.105 RSMo. provides a two- year statute of limitations for medical negligence actions against health-care providers. Under the continuing care exception to the statute of limitations, the statute does not begin to run against a plaintiff-patient until treatment by the medical defendant ceases where the treatment is continuing and of such nature as to charge the medical provider with the duty of continuing care and treatment that is essential to recovery. This duty continues until the physician-patient relationship ends by (1) mutual consent of the parties, (2) the physician's withdrawal after reasonable notice, (3) the patient's dismissal of the physician, or (4) cessation of the necessity that gave rise to the relationship. A prerequisite for the continuing care exception is that a patient is under the doctor's continuing care. Here, Dr. Szoko's care was not continuing. Where a physician commits an act of neglect on one specific date, and has no other contact with the patient, the statute of limitations begins to run on that date.
On the other hand, South County provided continuing services to Montgomery. It provided three diagnostic reports over a nine-month period. As an entity providing continuing radiological services, it has a duty of continuing care until its relation with the patient ends. The doctor-patient relationship is, in most instances, a highly personal and close one, encompassing on the part of the patient a basic competence and reliance on the skills and judgment of the doctor with a reasonable expectation that such will be met by a deep sense of obligation and proper exercise by the doctor of superior knowledge and the dedicated use of his or her best talents and judgments. While South County's obligations to the patient are not as comprehensive as the treating physician's are, its services were of such a nature to charge it with accurately interpreting and comparing x-rays and MRIs for the same complaint by the same patient about the same part of his body, three times within a nine-month period. The trial court erred in granting summary judgment to South County on the basis that, as a health care entity, it did not have a duty of continuing care.
Courts Should Not Interfere With Procedural Aspects of Arbitration
Gail Hart signed an agreement with her employer, Kupper Parker, agreeing that all disputes between them would be resolved by arbitration. The agreement also outlined certain procedures to be followed by the arbitrator and stated that each party could take up to three depositions. After her termination, Hart filed charges of discrimination against Kupper Parker. After the dispute was referred to arbitration, Hart identified 22 witnesses. Kupper Parker sought subpoenas to depose all of Hart's witnesses but the arbitrator ruled that it could depose only three. KupperParker filed suit in the circuit court seeking authorization to take the depositions of all witnesses and a stay of the arbitration proceedings until the depositions were taken. The circuit court granted Kupper Parker's request, but the Court of Appeals reversed in Kupper Parker Communications v. Hart, No. ED 78661 (Mo. App. E.D. 2001).
Missouri has adopted the Uniform Arbitration Act, which is fashioned after the Federal Arbitration Act; the acts are substantially similar. Arbitration procedures are informal by design. In order to speed the process and to reduce expenses, certain rights afforded in litigation have been sacrificed. One of those is the right to depose every witness endorsed by one's opponent. In order to secure the advantages of arbitration and to preserve arbitration as a substitute for, and not as a mere prelude to, litigation, judicial oversight of arbitration is strictly limited. It is not the function of courts to supervise arbitrators.
There is nothing in either the UAA or the FAA to suggest that a court has any power to order or prohibit discovery in an arbitration proceeding. The scope of arbitration is defined by the contract between the parties. Once a court determines there is an agreement to arbitrate, it has no authority to stay the arbitration proceedings. Courts are obligated to refrain from interfering with the procedural aspects of arbitration. To permit Kupper Parker to appeal the arbitrator's decision denying deposition requests would frustrate the purpose of arbitration. Arbitration is designed to be a less expensive, less time-consuming way of settling disputes. If Missouri allowed every alleged misinterpretation of an arbitration agreement by an arbitrator to be litigated and appealed, arbitrations would be a mere prelude to litigation and would, in the end, prove more time-consuming and expensive than litigation. The order of the circuit court is quashed because it had no jurisdiction to reverse an arbitrator's denial of a request to take depositions.
Fraudulent Conveyance May Be Proven By Badges of Fraud
The Buenemans obtained a judgment against the Zykans in the amount of $642,782 for damage caused to their farm as a result of improper disposal of waste by Zykan in violation of state environmental laws. While that suit was pending, Zykan transferred property he owned at the Lake of the Ozarks to his wife's parents, the Frankenbergs. After obtaining their judgment against the Zykans, the Buenemans then filed suit against the Zykans and the Frankenbergs, alleging that they transferred the lake property for the purpose of defrauding creditors. The trial court granted summary judgment to the Frankenbergs, but the Court of Appeals reversed in Bueneman v. Zykan, No. E.D. 78615.
A fraudulent conveyance is the transfer of property with the intent to hinder, delay or defraud creditors. The burden of proof is on the creditor, and must be proven by clear and convincing evidence. Since, however, fraudulent intent is difficult to establish by direct proof, it may be demonstrated by the surrounding circumstances. The courts have recognized “badges of fraud” that include (1) a conveyance to a relative, (2) inadequacy of consideration, (3) transactions different from the usual method of transacting business, (4) transfers in anticipation of suit, (5) retention of possession by the debtor, (6) the transfer of nearly all of the debtor's property, (7) insolvency caused by the transfer, and (8) failure to produce rebutting evidence when circumstances surrounding the transfer are suspicious. While none of the badges of fraud existing alone establish fraud, a concurrence of several of them raises a presumption of fraud. Here, evidence was offered that the Frankenbergs made sporadic payments on the lake property, that there was no deadline for payment of the full purchase price, and that the Zykans did not charge the Frankenbergs any interest. Thus, there were genuine issues of material fact as to whether or not the Frankenbergs paid the Zykans fair market value for the lake property, making summary judgment improper.
In Medical Negligence Case, Causation Must Be Shown to a Reasonable Degree of Medical Certainty
The family of Dale Mueller filed a medical negligence action against his physician, alleging that the physician was negligent in prescribing an anti-arrhythmic drug that caused Mueller's death. On deposition, the plaintiff's expert testified that Mueller died because his heart stopped beating due to profound bradycardia. He further testified that because the patient's preexisting condition of mitral valve prolapse and ventricular fibrillation leading to asystole was also a possible cause of death, it would be speculative to say with reasonable certainty what caused the patient's death. Based on these admissions in the expert's affidavit, the trial court granted summary judgment to the physician and the Court of Appeals affirmed in Mueller v. Bauer, No. ED 78504 (Mo. App. E.D. 2001).
In a medical negligence case, the plaintiff must offer facts that would support finding a causal connection between the physician's actions and the patient's death. In other words, the plaintiff must establish that, but for the physician's actions or inactions, the patient would not have died. Expert testimony is required to establish causation in a medical negligence case where proof of causation requires a certain degree of expertise. If the death may have resulted from either of two causes, for one of which the physician would be liable and for the other he or she would not be liable, the plaintiff must show with reasonable certainty that the cause for which the physician is liable produced the death. When a party relies on expert testimony to provide evidence of causation when there are two or more possible causes, that testimony must be given to a reasonable degree of medical certainty. When an expert merely testifies that a given action or failure to act “might” or “could have” yielded a given result, though other causes are possible, such testimony is devoid of evidentiary value.
Here, the plaintiff's expert, who testified on the issues of standard of care and causation, testified that he was unable to determine the cause of patient's death with reasonable probability, and that it was a matter of speculation whether patient's death was caused by the anti-arrhythmic drug or by a preexisting condition. Where an expert's testimony is mere conjecture and speculation, it does not constitute substantive, probative evidence on which a jury could find ultimate facts and liability. The expert's opinion must be based upon facts, not conjecture or speculation.
Hancock Vote Not Required for Municipal Permit and Inspection Fee
The City of Moberly adopted an ordinance establishing a “permit and inspection fee” for residential rental properties located within the city. The ordinance required the fee to be paid by the owner of rental properties on an annual basis or on a change of ownership. The fee varied from $10 to $35 depending upon the dwelling. The fees in the ordinance were not submitted to the voters of the city for approval under the “Hancock Amendment” and several property owners challenged the ordinance on that basis. The city filed a motion for summary judgment stating, among other things, that the money collected from the fees totaled $64,810, but that the cost of administering the permit and inspection program during the same period was $92,535. The circuit court granted summary judgment to the city and the Court of Appeals affirmed in Ashworth v. City of Moberly, No. W.D. 58716 (Mo. App. W.D. 2001).
To determine whether a fee is a “user fee” and not subject to the Hancock Amendment or a “tax” and subject to the amendment, the five-factor test of Keller v. Marion County Ambulance Dist. case is applied. (1) When the fee is paid. Here, since the fee might be assessed annually, it is more like a periodic payment than a payment in exchange for services and this factor favors the property owner. (2) Who pays the fee? Since this fee is specific and not blanket in nature, this factor favors the city. (3) Amount of fee. Since the amount of the fee depended upon the size or type of the dwelling, this factor favors the city. (4) Is the government providing a service? Here, the city is providing a service by inspecting the properties. Moreover, it was undisputed that because the cost of the program exceeded the fees generated, the program was a drain on the general fund of the city. This factor favors the city. (5) Is it an historically governmental activity? Since the regulation of public health and general welfare of the residents is historically a governmental function, this factor favors the property owner. Because three of the five Keller factors favored the city, the permit and inspection fee imposed by the ordinance was a user fee and not subject to a vote under Hancock.
City Ordinance Must Have a Clear Title and a Single Subject
The City of Cape Girardeau adopted Ordinance No. 2403 that increased the license tax on hotels from 3% to 4% of gross receipts and extended the license tax from 2004 to 2030. The proceeds of the taxes were to be used by the city to pay for bonds to be issued for the construction of a performing arts center, museum and other facilities for the city and Southeast Missouri State University. The ordinance called for a special election on the license tax to be held on November 3, 1998; on that date, 53% of the voters voted in favor of it. James Drury filed suit against the City alleging that the ordinance violated the single subject and clear title requirements of the city's charter and Article III, Section 23 of the Missouri Constitution. The trial court found that the ordinance was invalid and the Court of Appeals agreed in Drury v. City of Cape Girardeau, No. E.D. 78614 (Mo. App. E.D. 2001).
The city charter requires ordinances to contain no more than one subject, which shall be clearly expressed in the title. The “clear title” provision, like the “single subject” restriction, was designed to prevent fraudulent, misleading and improper legislation by providing that the title indicate in a general way the kind of legislation that is being enacted. The title may omit particular details of a bill so long as neither the legislature nor the public is misled. One purpose of requiring that a bill's title clearly express the subject of the bill is to keep individual members of the legislature and the public fairly apprised of the subject matter of pending laws. A title may be unclear if the subject is too broad or amorphous, or if so restrictive and under inclusive that certain provisions fall outside it.
Here, the title of the ordinance stated that it was to increase and extend the hotel license tax. The title did not identify other subjects of the ordinance, including the agreement between the city and the university, the use of the proceeds for a performing arts center, museum, and cultural facilities, the use of proceeds by the Convention and Visitors Bureau or the reduction of the city's indebtedness on the Show-Me Center bonds. The title of the ordinance was underinclusive because provisions of the ordinance fell outside it. Thus, the subject of the ordinance was not clearly expressed in its title, as required by the city charter. The court also rejected the city's contention that Drury was estopped from challenging the ordinance because he had sent a letter expressing support for it. An individual's support of an ordinance is political in nature and subject to change. An invalid ordinance cannot be made proper by raising the affirmative defense of estoppel.
Due Process Not Violated Where Property Owner Had Actual Notice of Demolition Hearing on Building, But Board Required to Make Findings and Conclusions
The building inspector for the City of Joplin sent a certified letter to American Investment, notifying it of a hearing before the Building Board of Appeals concerning the demolition of its building. At the hearing, the building inspector advised the board that other individuals claimed to own the building. The board continued the hearing to a later date and published notice of the hearing in the newspaper. On the hearing date that was published in the newspaper, Mr. Graves appeared and claimed ownership of the building. He told the board that he intended to renovate the building and the board continued the demolition hearing to a later date. Notice of the continuance was mailed to both Mr. Graves and American Investment. At the next hearing, Graves was late and arrived after the building inspector testified regarding the dangerous condition of the building. When Graves arrived, he was told the board had decided to demolish the building. At the request of Graves, the board stayed its order to demolish the building until the next meeting. At the following meeting, Graves asked for additional time for his architect to prepare plans, but the board refused and ordered the building demolished. Graves filed suit challenging the board's decision for lack of notice and absence of written findings. The trial court affirmed the board's demolition order. In Graves v. City of Joplin, No. 23915 (Mo. App. S.D. 2001), the Court of Appeals affirmed on the notice issue, but remanded because there were no written findings or conclusions.
The court rejected Graves' argument that he received insufficient notice from the city in violation of his due process rights. Due process is provided by affording parties to an administrative proceeding the opportunity to be heard at a meaningful time and in a meaningful manner. It requires that a litigant have knowledge of the claims, have a full opportunity to be heard and to defend, enforce and protect his or her rights. A party who has actual notice is not prejudiced by and may not complain of the failure to receive statutory notice. Statutes that impose technical requirements for notice should not be strictly enforced where the parties seeking enforcement had actual notice and cannot show prejudice as a result of the alleged failure to follow the technical requirements. Here, notice of the hearing on the dangerous building was published in the newspaper. Graves appeared several times before the board, was given the opportunity to be heard and was informed that the building was the subject of a demolition hearing. He was fully aware that the building could be ordered demolished and had actual notice of the hearing and his right to be heard; he cannot now claim prejudice.
The case was remanded, however, because the board failed to make findings of fact and conclusions of law. Section 536.090 RSMo. requires a final administrative decision in a contested case to include written findings of fact and conclusions of law; this may not be waived. Here, the board failed to make such findings and conclusions. Judicial review is inappropriate unless a full, written opinion, including findings of fact and conclusions of law, explains the basis for the board's order. The failure to include such findings and conclusions in an administrative decision following a contested case hearing is a non-waivable error and requires reversal. The case was remanded to the board for the making of findings of fact and conclusions of law.