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.”
See our previous blog post regarding this case.
Subsequently, in its en banc opinion filed on February 19, 2020, the Missouri Supreme Court vacated its previous December 10, 2019 opinion and stated: “The Tharps seek a second trial because they did not know what evidence this Court would require to make a submissible case of negligent credentialing. The Tharps admit they possessed additional evidence that this Court today holds was essential to their cause of action but declined to introduce at trial. They contend, however, they were justified in failing to introduce such evidence. Whether a plaintiff was justified in failing to introduce certain evidence during trial is not conducive to a hard and fast rule, but past cases shed light on situations in which an appellate court should not fault a plaintiff for failing to introduce evidence the plaintiffs had in their possession during trial.”
The Missouri Supreme Court stated “justice precludes outright reversal of a plaintiff’s verdict and instead requires remand if a plaintiff’s legal failure was caused not by some strategic decision, avoidable or invited error, or other intrinsic factor, but by some extrinsic factor outside the plaintiff’s control. One such extrinsic factor that may justify a plaintiff’s failure to introduce essential evidence is a plaintiff’s ignorance of the evidence necessary to support a cause of action when no statute or binding appellate precedent has ever recognized a cause of action and set forth the evidence required to support the claim. The Tharps’ confusion as to the evidence necessary to support a negligent credentialing claim was justifiable for this reason … 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 Missouri Supreme Court held: “This opinion now provides the Tharps and future plaintiffs with definitive guidance on the evidence they must present and elements they must prove to create a submissible case of negligent credentialing. The Tharps possess additional, relevant evidence that would enable them to make a submissible case upon retrial, and they were justified in not presenting that evidence during their trial. 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.
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