In its opinion dated December 10, 2019, the Supreme Court of Missouri (“Missouri Supreme Court”) held: “Without evidence showing a reasonable investigation into the surgeon’s background and qualifications would have revealed he was unqualified to perform laparoscopic cholecystectomies, there is no evidence St. Luke’s breached its duty to the Tharps [the plaintiffs] to credential competent and careful physicians.” However, “It was not until the instant case that this Court recognized negligent credentialing as a cause of action, set out the elements of a negligent credentialing claim, and explained the evidence necessary to support that claim … The Tharps should not be punished for failing to introduce evidence when they did not have the benefit of this Court’s guidance as to the evidence necessary to make a submissible case of negligent credentialing. Because the Tharps lacked clear guidance on the elements they needed to prove and the evidence they needed to present to make a submissible case of negligent credentialing, their failure to introduce evidence that would have allowed them to make a submissible case during their trial was justifiable.”
Plaintiffs’ Negligent Credentialing Claim
The Tharps contended that St. Luke’s breached its duty by credentialing Mr. Tharps’ surgeon because the surgeon did not list all the lawsuits he had defended over his career in his application for staff privileges as required by St. Luke’s bylaws. The Tharps’ evidence supporting their negligence theory focuses on St. Luke’s failure to follow its bylaws, but their evidence fails to address the surgeon’s qualifications. “It is true, had St. Luke’s followed its bylaws by rejecting the surgeon’s application for failing to list his entire litigation history, Mr. Tharps’ surgeon would not have received staff privileges at St. Luke’s. However, St. Luke’s failure to follow its bylaws, alone, is insufficient to show St. Luke’s breached its duty to credential a competent and careful surgeon. Even though the surgeon did not list every lawsuit he had defended in his career, there was no evidence showing he was unqualified due to the number of lawsuits the surgeon had defended. In fact, the Tharps’ own expert admitted there was “no magical number” of lawsuits that denotes a surgeon is unqualified to practice medicine. Indeed, a physician’s specialty can have a dramatic impact on how frequently the physician is sued over the course of his or her career … The Tharps presented evidence St. Luke’s deviated from its bylaws, but there was no evidence showing St. Luke’s credentialed an unqualified surgeon. The record is devoid of any evidence Mr. Tharp’s surgeon lacked the knowledge, skill, and experience necessary to operate on patients like Mr. Tharp “without creating unreasonable risk of injury.””
Missouri Supreme Court Opinion
The Missouri Supreme Court stated: “To prove causation under the negligent credentialing theory, a plaintiff must show: (1) but for the hospital’s breach of its duty to credential a competent and careful physician, the plaintiff would not have been injured; and (2) the plaintiff’s injuries were a natural and probable consequence of the breach of this duty. Otherwise, there is nothing to link a hospital’s act of credentialing a physician to the patient’s injuries.”
In the case it was deciding, the Missouri Supreme Court stated, “The hospital, however, cannot be liable for the physician’s negligence under a theory of negligent credentialing unless the patient’s injuries were the result of the hospital’s breach of a duty it owes to the patient. Because a hospital’s duty to its patients is to credential competent and careful physicians, a hospital’s act of credentialing a physician is not the proximate cause of a patient’s injuries unless the injuries are a consequence of receiving treatment from an unqualified physician. If a surgeon injures a patient while operating, not because he or she lacks the general competence or care necessary to perform the procedure, but rather because the surgeon simply was negligent in that particular instance, the patient’s injuries are not the natural and probable consequence of credentialing the surgeon … In this circumstance, recovery against the physician may be appropriate because the physician is the one at fault, but recovery against the hospital is not appropriate because the hospital bears no fault if it credentialed a competent and generally careful physician. Accordingly, a plaintiff cannot establish the causation element of a negligent credentialing claim unless there is evidence showing the patient’s injuries were the natural and probable consequence of the surgeon’s general incompetence or carelessness.”
The Supreme Court of Missouri held: “Here, the Tharps’ evidence supports a finding of actual cause because but for St. Luke’s credentialing the surgeon in violation of its bylaws, Mr. Tharp’s surgeon would not have operated on him. The evidence, however, does not support a finding of proximate cause because Mr. Tharp’s injuries were not within “the scope of foreseeable risk” created by St. Luke’s act of credentialing Mr. Tharp’s surgeon … The Tharps failed to offer any evidence showing Mr. Tharp’s surgeon was unqualified to perform laparoscopic cholecystectomies and the surgeon’s incompetency or general carelessness was the proximate cause of Mr. Tharp’s injuries. Because there was no evidence showing Mr. Tharp’s surgeon was unqualified in this manner and, therefore, likely to injure any patient, there was insufficient evidence to support a finding St. Luke’s act of credentialing the surgeon caused Mr. Tharp’s injuries. Accordingly, there was insufficient evidence to support their negligent credentialing claim.”
Nonetheless, the Missouri Supreme Court further held in the case in was deciding, “It would be manifestly unfair to deny the Tharps an opportunity to attempt to correct the deficiency this Court finds in their evidence when they were unaware exactly what the law required to make a submissible case of negligent credentialing. The Tharps’ possession of evidence to create a submissible case upon retrial, combined with their justifiable failure to introduce such evidence during their trial, supports a finding that justice requires remand in this case.”
Source Tharp v. St. Luke’s Surgicenter-Lee’s Summit, LLC, No. SC96528.
If you or a loved one may have been injured (or worse) as a result of medical negligence in Missouri or in another U.S. state, you should promptly find a Missouri medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.