Punitive Damages in a Medical Malpractice Case

I. Specific Claim for Punitive – See Attached Article

A. R.S. Mo. § 538.210 sets the standard for punitive damages in medical malpractice cases. A plaintiff must prove that the healthcare provider “demonstrated willful, wanton or malicious misconduct with respect to his actions which are found to have injured or caused or contributed to cause the damages claimed in the petition.” Id.

B. The Missouri Supreme has upheld the constitutionality of the medical malpractice statutes, even though the Missouri Legislature set out a different and unequal system for health care providers as compared to every other defendant in the civil justice system. See Adams By and Through Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo banc. 1992).

C. There must be “clear and convincing” evidence for a jury to award punitive damages, a higher standard than a simple negligence case. Hoskins v. Business Men’s Assurance, 116 S.W.3d 557 ( Mo. App. W.D. 2003). Obviously, there must be a wealth of discovery to prove by “clear and convincing evidence” that a doctor “demonstrated willful, wanton or malicious misconduct.” Id.

II. Negligent Credentialing – See Attached Article

III Peer Review Privilege

“ Where the party opposing a discovery . . . is asserting a privilege or immunity from the discovery request, the burden of proof must necessarily shift from the proponent of discovery to the opponent of discovery.” Dixon v. Darnold, 939 S.W.2d 66, 70 (Mo. App. S.D. 1997)(citations omitted). “ Where a privilege is asserted and then challenged, the burden rests upon the party claiming the privilege to establish that the material is, in fact, not discoverable. The party claiming the privilege must supply the court with sufficient information to enable the court to determine that each element of the privilege is satisfied. A failure of proof as to any element of the privilege causes the claim of privilege to fail.” Id. at 70 (citations omitted). “[B]lanket assertions of privilege pursuant to the Peer Review Statute are insufficient to invoke its protection. This is because the statute does not provide for total immunity from discovery of all records concerning the health care provided any patient. Rather, ‘the public policy of this state [is] that peer review committee proceedings, to the extent they address the health care provided any patient, are immune from discovery.’” Id. at 70-71 (citing to State ex rel. Faith Hospital v. Enright, 706 S.W.2d 852, 855-56 ( Mo. banc 1986)). “ Therefore, a party opposing a request for discovery on the basis of the Peer Review Statute, must make a showing as to how the requested discovery violates the statute’s provisions.” Id. at 71.

Missouri law on the peer review privilege is clear. “As the Missouri Supreme Court said, the purpose of the peer review privilege is ‘to encourage health care professionals to engage in candid, critical analysis of their peers’ performance by shielding participants from liability for their comments during peer review and by ensuring that their disclosure cannot be compelled.’” State ex rel. Tennill v. Roper, 965 S.W.2d 945, 947-48 (Mo. App. W.D. 1998)(citing to State ex rel. Lester E. Cox Medical Centers v. Darnold, 944 S.W.2d 213, 215 ( Mo. banc 1997)). In State ex rel. Chandra v. Sprinkle, 678 S.W.2d 804 ( Mo. banc 1984), the Missouri Supreme Court “determined that no peer review privilege exists under Missouri law for factual statements.” State ex rel. Faith Hospital v. Enright, 706 S.W.2d 852, 854 ( Mo. banc 1986)(discussing history of peer review privilege). “Following Chandra, the General Assembly amended § 537.035, in pertinent part as follows:

4. Except as otherwise provided in this section, the proceedings, findings, deliberations, reports, and minutes of peer review committees concerning the health care provided any patient are privileged and shall not be subject to discovery, subpoena, or other means of legal compulsion for their release to any person or entity or be admissible into evidence in any judicial or administrative action for failure to provide appropriate care….”

State ex rel. Faith Hospital v. Enright, 706 S.W.2d 852, 854 ( Mo. banc 1986)(citing R.S.Mo. §537.035).

The Eastern Distict has held that Chandra stood for the proposition that “no peer review privilege” existed in Missouri and the General Assembly enacted § 537.035 to reverse that ruling. St. Anthony’s Medical Center v. Provaznik, 863 S.W.2d 21, 23 (Mo. App. E.D. 1993). Nothing in the new version of § 537.035 addresses the discovery of factual statements prepared prior to a peer review committee meeting. To that extent, Chandra remains good law.

Defendant is asserting peer review privilege not over “ proceedings, findings, deliberations, reports, and minutes of peer review committees,” but the facts of the underlying complaint. See § 537.035. In viewing defendant’s assertion of privilege, it is important to keep in mind the purpose of the peer review privilege. “[T]he purpose of the peer review privilege is ‘to encourage health care professionals to engage in candid, critical analysis of their peers’ performance by shielding participants from liability for their comments during peer review and by ensuring that their disclosure cannot be compelled.’” State ex rel. Tennill v. Roper, 965 S.W.2d 945, 947-48 (Mo. App. W.D. 1998)(citing to State ex rel. Lester E. Cox Medical Centers v. Darnold, 944 S.W.2d 213, 215 ( Mo. banc 1997)).

IV. Suggested Discovery

A. Any complaints made against defendant by doctors, nurses, or patients from January 1, 2000 to present.

B. All documents constituting the personnel or credentials files of defendant.

C. Produce all materials in the possession of defendant hospital regarding complaints against defendant for physical touching of nurses, complaints by patients or any other document related to substandard care by defendant doctor.

D. Produce all hospital manuals referencing the use of Incident Reports and Quality Assurance Reports.

E. Produce a blank Incident Report as used by defendant hospital in the years from January 1, 2000 to present.

F. Produce a blank Quality Assurance Report as used by defendant hospital in the years from January 1, 2000 to present.

G. Produce all Incident Reports or Quality Assurance Reports that make reference to either plaintiff or any incident involving either plaintiff.

I. Produce all documents having to do with any investigation that defendant hospital did into infections on patients treated by defendant doctor.

J. Produce a report prepared by the Risk Manager or Employee Health and Infection Control Nurses, regarding the patients of defendant doctor and the incidents of infection.

K. Produce all documents referencing the measures to be taken at defendant hospital by physician and staff to avoid spreading infection to patients.

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