By: Rachel Taylor
Rhoden v. Missouri Delta Med. Ctr., 621 S.W.3d 469 (Mo. . 2021) (en banc), reh’g denied (June 1, 2021).
I. INTRODUCTION
Roosevelt Rhoden went to the doctor for help when he began experiencing mild prostate issues.1 Due to his physicians’ negligent care, Rhoden died after complications following surgery.2 In a wrongful death action commenced by Rhoden’s family, a jury awarded Plaintiffs punitive damages.3 The Missouri Supreme Court ultimately upheld this award.4 However, if the same case were filed today, it is likely the punitive damages award would not stand.
Since 1986, the Missouri legislature has tried to limit health care provider’s liability in medical malpractice cases through tort reform efforts designed to solve a medical malpractice insurance crisis that has impacted the state in different waves since the 1980s.5
At the time Rhoden died, in Missouri, a patient could receive punitive damages for medical malpractice if a doctor’s negligence was severe enough that his or her actions could be considered “willful, wanton or malicious.”6 In 2020, the Missouri legislature revised that statute to require a plaintiff prove the healthcare provider “intentionally caused damage to the plaintiff or demonstrated malicious misconduct that caused damage to the plaintiff.”7 With the change in statutory standard for punitive damages in medical malpractice cases, the 2021 Rhoden holding is the final decision in a series of judicial opinions limiting the effect of tort reform efforts by the Missouri legislature.8 Although the amended statute means Rhoden will have limited effect, the decision marks an important switch in Missouri medical malpractice law.
Rhoden’s place in the history of Missouri medical malpractice reform and the subsequent amendment of the statute to require intentional conduct by healthcare providers to sustain a punitive damages award is in the best interest of Missouri healthcare—a state with a shortage of physicians and a history of medical malpractice insurance dilemmas.
II. FACTS AND HOLDING
In September 2012, Roosevelt Rhoden, who was in his late seventies, sought medical help after he noticed his urine force was not sufficiently strong and felt he could not fully empty his bladder.9 Before noticing these issues, Rhoden had been receiving continuing care for prostate issues from Missouri Delta Medical Center (“MDMC”) and two of its doctors, Dr. Linza Killion (“Dr. Killion) and Dr. Kevin Rankin (“Dr. Rankin”).10 Rhoden brought his new issues to Dr. Killion, who informed him his treatment options were either surgery or self-administering a catheter for the rest of his life.11 Rhoden chose to undergo surgery.12 Dr. Killion performed a transurethral resection of the prostate (“TURP”).13 During the TURP surgery, Dr. Killion resected too much of the prostate and conducted a transurethral incision of the bladder neck (“TUIBN”) to correct this error.14 Dr. Killion “knew” the additional TUIBN surgery would increase the risk of bladder perforation.15
Rhoden did not recover as anticipated.16 Two days after surgery, Rhoden’s health rapidly declined as he went into major organ failure and required dialysis along with a ventilator.17 Still, neither Dr. Killion nor Dr. Rankin investigated Rhoden’s post-operative pain, and they did not perform tests to see if Rhoden’s bladder was perforated or if the catheter was outside of the bladder.18
Another doctor warned Dr. Killion and Dr. Rankin that Rhoden had a urine leak caused by a perforated bladder.19 Dr. Killion knew immediately following the TURP surgery Rhoden suffered acute kidney failure and that acute kidney failure was consistent with a bladder perforation.20 However, Dr. Killion disregarded the possibility that he made an error during surgery, so he did not perform any diagnostic testing.21
Dr. Rankin believed the cause of the free air in Rhoden’s chest and abdomen, discovered by another doctor in an X-ray, was a perforated duodenal ulcer.22 Dr. Rankin performed an exploratory laparotomy despite knowing there were less invasive testing options.23 Rhoden’s records indicated he possibly had a urine leak, but Dr. Rankin did not read Rhoden’s records before conducting the laparotomy.24 If Dr. Rankin had been aware of the urine leak, he would have chosen a different treatment course for Rhoden.25
Rhoden was transferred to a different hospital.26 There, he received an abdominal and pelvic CT scan,27 which showed the catheter was outside of Rhoden’s bladder and revealed a large amount of fluid thought to be urine.28 The doctors removed the catheter and put in another properly placed catheter.29 Rhoden’s condition improved, but his treatment at MDMC caused significant trauma resulting in his death.30
Family representatives of Rhoden, (“Plaintiffs”) filed a wrongful death action against MDMC claiming MDMC and two doctors employed by MDMC’s negligence (“Defendants”) caused Rhoden’s death.31 Following a jury trial, the circuit court entered judgment in favor of Plaintiffs.32 Plaintiffs were awarded $269,780.80 for economic damages, $300,000 for non-economic damages, and $300,000 for aggravating circumstances damages.33 MDMC appealed, claiming that Plaintiffs’ award of aggravating circumstances damages was not supported by clear and convincing evidence that Dr. Killion and Dr. Rankin demonstrated willful, wanton, or malicious conduct.34 The court of appeals and the Missouri Supreme Court affirmed the decision.35 The Missouri Supreme Court upheld the punitive damages award under the 2017 statute, which controlled in this case.36 The court found this statute required a finding of negligence on behalf of the Defendants.37
III. LEGAL BACKGROUND
An understanding of the following is important in analyzing the significance of the court’s decision: (1) an overview of medical malpractice law generally in the United States, (2) the history of punitive damages in medical malpractice actions in Missouri, and (3) the statutory standard for punitive damages in Missouri today.
A. Medical Malpractice
In the United States, medical malpractice is traditionally governed by state law rather than federal law.38 Therefore, there are several approaches states take regarding punitive damages in medical malpractice cases.39 Many states permit plaintiffs to recover punitive damages.40 However, some states require different standards of conduct for an award of punitive damages to be proper, 41 and others do not allow plaintiffs to recover any punitive damages in medical malpractice cases.42
To establish a prima facie case of medical malpractice in Missouri, a plaintiff must prove, “the health care provider failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession and that such failure directly caused or contributed to cause the plaintiff’s injury or death.”43 In a medical malpractice case, plaintiffs in Missouri can be awarded three types of damages: economic damages, non-economic damages, and punitive damages.44
Missouri law defines punitive damages as “damages intended to punish or deter malicious misconduct or conduct that intentionally caused damage to the plaintiff.”45 Punitive damages are generally not available in negligence actions because negligence is the omission of the duty to exercise care and thus is “the antithesis of willful or intentional conduct.”46 However, an act or omission, though properly characterized as negligent, may manifest such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted.47
B. Missouri Tort Reform and the Punitive Damages Saga
In the 1970s and 1980s, many states adopted statutes governing medical malpractice following high insurance and medical costs.48 In Missouri, insurance premiums were rising and the number of medical malpractice lawsuits filed increased.49 As part of a national tort reform effort to limit certain types of liability in tort, the Missouri legislature passed a package of tort reforms in 1986.50 The reform, among other provisions, limited punitive damages to situations involving “willful, wanton or malicious” conduct.51 Before 1986, the standard governing punitive damages in medical malpractice cases was conduct that demonstrated “complete indifference to or conscious disregard for the safety of others.”52 No monetary cap was placed on punitive damages in medical malpractice cases in the 1986 reform.53
At first, the 1986 reform had its intended impact, and liability insurance premiums stabilized.54 However, by the late 1990s and early 2000s, the number of medical malpractice lawsuits increased again.55 At the same time, Missouri insurance companies were losing money regardless of the rising cost of premiums.56 This left insurance companies with two options: (1) increase premiums; or (2) leave Missouri.57 Insurance providers pursued both options, and physicians began to leave the state due to lack of access to affordable malpractice insurance.58
In 2012 when Rhoden sought care for his prostate issues from MDMC and its doctors, a plaintiff had to prove “the health care provider demonstrated willful, wanton, or malicious misconduct with respect to his [or her] actions.”59 By the time the case was brought in the fall of 2016, the punitive damages cap had been struck down by the Missouri Supreme Court.60 At this time, the standard governing punitive damages in medical malpractice claims was still willful, wanton, or malicious conduct.61 In 2020, while the Rhoden case was pending appeal, the Missouri legislature passed Senate Bill 591, which amended the punitive damages standard to require intentional conduct rather than willful, wanton, or malicious conduct.62 The amended statute provides:
“In order to be awarded punitive damages, the jury must find by clear and convincing evidence that the health care provider intentionally caused damage or demonstrated malicious misconduct. Evidence of negligence, including indifference or conscious disregard for the safety of others, does not constitute intentional conduct or malicious misconduct.”63
The amended statute applies to all cases filed on or after August 28, 2020.64
IV. INSTANT DECISION
The main issue in Rhoden is whether Plaintiffs’ malpractice claim was supported by clear and convincing evidence that the Defendants’ conduct demonstrated willful, wanton, or malicious conduct.65
A. The Principal Opinion
On appeal, MDMC contended Plaintiffs’ claim for additional damages was not supported by clear and convincing evidence that Dr. Rankin and Dr. Killion demonstrated willful, wanton, or malicious conduct.66 Whether there was sufficient evidence to support an award of aggravating circumstances damages is a question of law.67 Thus, the court reviewed the issue de novo.68 The court found the facts of the case rose to the statutory standard of willful, wanton, or malicious conduct.69 Notable facts that led to this conclusion were that Dr. Killion “knowingly and incorrectly” told Rhoden his only two treatment options were surgery or to self-catheterize for the rest of his life and Dr. Killion “knew” there were alternative, less invasive treatment options.70 Thus, the court concluded Dr. Killion’s misplacement of the catheter and failure to acknowledge his error fell below the standard of care.71 After this breach of the standard of care by Dr. Killion, the court found the events that followed formed the basis of evidence that supported the award of aggravated circumstances damages.72 The court reasoned Rhoden’s severe abdominal pain following his TURP and TUIBN surgery indicated something was very wrong and needed investigation, but neither doctor did.73 Within two days after the surgery, Rhoden was experiencing major organ failure and needed dialysis and a ventilator.74 Neither Dr. Killion nor Dr. Rankin performed tests promptly to see what was wrong.75 The court found these missteps by Dr. Killion and Dr. Rankin were sufficient to support the submission of aggravating circumstances damages to the jury.76
B. Judge Wilson’s Dissent
Judge Wilson disagreed with the majority’s holding that Plaintiffs’ claim was supported by clear and convincing evidence that the healthcare providers demonstrated willful, wanton, or malicious conduct.77 Judge Wilson characterized the willful, wanton, or malicious standard as being practically equivalent to intentional conduct.78 Judge Wilson emphasized the purpose of punitive damages—to punish and deter conduct.79 Therefore, if the Defendants’ conduct could not be described as “tantamount to intentional wrongdoing,” punitive damages were inappropriate and did not further the goals of punishment and deterrence.80 Although Judge Wilson thought it was possible the doctors’ actions were “grossly” negligent, he thought negligence was insufficient to support the punitive damages award.81
V. COMMENT
In Rhoden, the Missouri Supreme Court correctly upheld the jury’s award of punitive damages based on the willful, wanton, or malicious misconduct standard. The majority concluded the legislature’s subsequent amendment of the statute indicated an intent to change the existing law.82 Thus, because the new standard requires a finding of intentional conduct, it follows that the preceding statute required a different level of culpability.83 Judge Wilson’s argument that the standard was not met because the Defendants’ conduct was not effectively one of intentional wrongdoing is misplaced under this reasoning because negligence was sufficient under the statute at the time.
The line between these positions is hazy given the complicated history of the punitive damages standard.84 However, the determination of the appropriate construction of the statute has a limited impact beyond this case given the clear intentional standard set out in the 2020 statute. The majority noted under the current intentional standard for punitive damages in medical malpractice cases, punitive damages would not be appropriate in Rhoden.85 This case does have precedential value, however, for cases filed before August 28, 2020 that are still making their way through the court system under the former standard. Additionally, the main premise Rhoden represents is a final battle in the war that ensued between the Missouri Supreme Court and Missouri Legislature in expanding and contracting the scope of liability of health care professionals since the 1980s.
The push to limit health care providers’ liability was motivated by prohibitively high insurance costs that caused physicians and insurance providers to leave the state.86 The Department of Health and Human Services has estimated there is a shortage of at least 16,000 doctors nationwide, and this shortage impacts Missouri.87 In Missouri, thirty-seven percent of people live in rural communities, however, only eighteen percent of Missouri doctors practice in rural areas.88 Missouri has already seen the domino effect that high damages awards in medical malpractice suits can have.89 In the early 2000s when lawsuits increased, insurance payouts from liability companies rose, which caused insurance premiums to soar.90 However, insurance companies were losing money despite the high premiums and began to leave the state.91 This induced physicians to leave Missouri, and hospitals and physicians limited their services.92 Forty-nine percent of physician respondents in a 2004 survey said the cost of insurance led them to cut staff positions, and twenty-seven percent of respondents to a 2002 survey said they had limited the scope of their practice in an effort to avoid high-risk patients and procedures.93 This caused some Missourians to lose access to healthcare.94 In 2003, a survey of Missouri neurosurgeons found fifty-three percent would decline accepting Medicaid patients, and twenty-three percent said they would not accept Medicare patients.95
With expansion of Medicaid in Missouri following the 2020 election and the Missouri Supreme Court affirming the constitutionality of that decision, the demand for health care providers might increase in Missouri as more people have access to health care.96 The risk of deterring individuals from entering the profession or causing physicians to leave Missouri at a time when health care providers are needed more than ever is not a risk Missourians should incur. Therefore, limiting physician’s potential liability through requiring a higher degree of culpability in malpractice cases was in the best interest of healthcare access in the state.
VI. CONCLUSION
Rhoden likely represents the final judicial decision in the back-and-forth the Missouri Supreme Court and Missouri legislature engaged in as the legislature worked to limit physician’s liability in tort. In Rhoden, the Missouri Supreme Court correctly applied the 1986 punitive damages standard against Dr. Killion and Dr. Rankin’s conduct. The legislature’s subsequent amendment of the punitive damages statute to require intentional conduct is a good decision for the future of Missouri medical malpractice law as the state grapples with a shortage of physicians and increased population of those eligible for health care.
FOOTNOTES
[1] Rhoden v. Missouri Delta Med. Ctr., 621 S.W.3d 469, 475 (Mo. 2021) (en banc).
[2] Id. at 476.
[3] Id.
[4] Id.
[5] Paul J. Passanante & Dawn Mefford, The Effect of Tort Reform on Medical Malpractice, 61 J. Mo. B. 236, 241 (2005).
[6] Mo. Rev. Stat. § 538.210.8 (2017).
[7] Mo. Rev. Stat. § 538.210.8 (2020).
[8] See Rhoden, 621 S.W.3d at 475.
[9] Id.
[10] Id. (Rhoden had underlying health issues including obesity, hypertension, insulin-dependent diabetes, chronic kidney disease, and respiratory issues.)
[11] Id.
[12] Id.
[13] Id. at 475–76. A TURP surgery is performed to treat urinary issues caused by an enlarged prostate. Generally, the procedure is recognized as an option for men with moderate to severe urinary problems that haven’t responded to medication. Transurethral resection of the prostate (TURP), Mayo Clinic, https://www.mayoclinic.org/tests-procedures/turp/about/pac-20384880 (last visited Mar. 24, 2022).
[14] Rhoden, 621 S.W.3d at 478. A TUIBN surgery is performed to relieve bladder outflow obstruction. Incision of the bladder neck, Nat’l Libr. of Med., https://pubmed.ncbi.nlm.nih.gov/7538396/ (last visited Mar. 24, 2022).
[15] Rhoden, 621 S.W.3d at 478.
[16] Id. at 476. Immediately after surgery, Rhoden experienced severe abdominal pain, had trouble breathing, was in kidney failure, and was showing signs of sepsis. Id. at 478.
[17] Id.
[18] Id.
[19] Id. at 479.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id. at 475.
[32] Id.
[33] Id.
[34] Id. at 479. Aggravating circumstances damages are a form of punitive damages. Mo. Rev. Stat. § 538.205.11 (2020).
[35] Rhoden, 621 S.W.3d at 479.
[36] Id.
[37] Id.
[38] B. Sonny Bal, An Introduction to Medical Malpractice in the United States, Clinical Orthopedics and Related Rsch. (Nov. 26, 2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/#CR18.
[39] § 24:3. Physician-patient relationship, 3 Mod. Tort L.: Liab. and Litig. § 24:3 (2d ed.); § 24:15. Duty of physician—In general, 3 Mod. Tort L.: Liab. and Litig. § 24:15 (2d ed.); § 24:16. Duty of physician—Basis of duty—Negligence, 3 Mod. Tort L.: Liab. and Litig. § 24:16 (2d ed.).
[40] Heather Morton, Medical Liability/Medical Malpractice Laws, Nat’l Conf. of State Legislatures (July 13, 2021), https://www.ncsl.org/research/financial-services-and-commerce/medical-liability-medical-malpractice-laws.aspx.
[41] Fla. Stat. § 768.73; Idaho Code § 6-1604; Me. Rev. Stat. Ann. tit. 18-C, § 2-807; Miss. Code Ann. § 11-1-65; Mont. Code Ann. § 27-1-220; Nev. Rev. Stat. § 42.005 (Nevada); N.J. Rev. Stat. § 2A:15-5.14 (New Jersey); N.C. Gen. Stat. § 1D-25 (North Carolina); Ohio Rev. Code Ann. § 2315.21 (Ohio); Okla. Stat. tit. 23, § 9.1 (Oklahoma); Pa. Stat. tit. 40, §1303.505 (Pennsylvania); S.C. Code Ann. § 15-32-530 (South Carolina); Va. Code § 8.01-38.1 (Virginia); W. Va. Code § 55-7-29 (West Virginia); Wis. Stat. § 895.043 (Wisconsin). § 24:111. Damages—Punitive damages, 3 Mod. Tort L.: Liab. and Litig. § 24:111 (2d ed.).
[42] Ill. Rev. Stat. ch. 735, § 5/2-1115; Or. Rev. Stat. §31.740 (Punitive damages may not be awarded against a health practitioner, as defined, if the health practitioner was engaged in conduct regulated by the license, registration or certificate issued by the appropriate governing body and was acting within the scope of practice for which the license, registration or certificate was issued and without malice.).
[43] Mo. Rev. Stat. § 538.210.1 (2020).
[44] Paul J. Passanante & Dawn Mefford, The Effect of Tort Reform on Medical Malpractice, 61 J. Mo. B. 236, 241 (2005).
[45] § 538.205.11.
[46] Hoover’s Dairy, Inc. v. Mid-Am. Dairymen, Inc./Spec. Products, Inc., 700 S.W.2d 426, 435 (Mo. 1985) (en banc) (quoting Sharp v. Robberson, 495 S.W.2d 394, 397 (Mo. 1973) (en banc)).
[47] Id.
[48] § 24:2. Elements of medical malpractice claim—Statutory limitations, 3 Mod. Tort Law: Liab. and Litig. § 24:2 (2d ed.).
[49] Daniel Sheffner, Fatal Medical Negligence and Missouri’s Perverse Incentive, 7 St. Louis U. J. of Health L. & Pol’y 147, 151.
[50] Tom Holloway, Missouri Health Care Headed for Catastrophe Without Tort Reform, The J. of Mo State Med. Ass’n, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6179607/.
[51] Paul J. Passanante & Dawn Mefford, The Effect of Tort Reform on Medical Malpractice, 61 J. Mo. B. 236, 243 (2005).
[52] Nicolas P. Terry, Missouri’s Malpractice Concord, 51 Mo. L. Rev. 457, 472 (1986).
[53] Passanante & Mefford, supra note 50, at 243.
[54] Holloway, supra note 49.
[55] Id. Surveys administered by the Missouri State Medical Association found individual premiums increased 61.2 percent on average between 2001 and 2002, 78 percent between 2002 and 2003, and 38 percent between 2003 and 2004. Id.
[56] Id.
[57] Id.
[58] Id.
[59] Rhoden v. Missouri Delta Med. Ctr., 621 S.W.3d 469, 477 (Mo. 2021) (en banc).
[60] Pl.’s’ First Amended Petition – Medical Malpractice-Wrongful Death, Rhoden v. Missouri Delta Med. Ctr., 621 S.W.3d 469 (Mo.Cir.) 2016 WL 11547911.
[61] Rhoden, 621 S.W.3d at 477.
[62] S.B. 591, 100th Gen. Assemb., Reg. Sess. (Mo. 2020).
[63] Id.
[64] Id.
[65] Rhoden, 621 S.W.3d at 481.
[66] Id. at 476.
[67] Id. at 477 (quoting Gilliland v. Mo. Athletic Club, 273 S.W.3d 516, 520 (Mo. banc 2009)).
[68] Id. at 477.
[69] Id.
[70] Id. at 478.
[71] Id.
[72] Id.
[73] Id.
[74] Id.
[75] Id.
[76] Id. at 479.
[77] Id. at 487 (Wilson, J., dissenting).
[78] Id. (Wilson, J., dissenting).
[79] Id. (Wilson, J., dissenting).
[80] Id. at 488 (Wilson, J., dissenting).
[81] Id. at 487 (Wilson, J., dissenting).
[82] Id. at 478, n.4.
[83] Id.
[84] See supra Section III.
[85] Rhoden, 621 S.W.3d at 478, n.4.
[86] Tom Holloway, Missouri Health Care Headed for Catastrophe Without Tort Reform, The J. of Mo State Med. Ass’n, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6179607/.
[87] Id.; MU Expands Efforts to Address State’s Physician Shortage (Jan. 3, 2020), Univ. of Mo. School of Medicine https://medicine.missouri.edu/news/mu-expands-efforts-address-states-physician-shortage.
[88] Id.
[89] Holloway, supra note 84.
[90] Id.
[91] Id.
[92] Id.
[93] Id.
[94] Id.
[95] Id.
[96] Doyle v. Tidball, 625 S.W.3d 459, 460 (Mo. 2021).