Supreme Court throws out negligent credentialing verdict

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The Missouri Supreme Court on Feb. 26 overturned a $2.3 million verdict against a Kansas City-area surgical center, citing a lack of proof that the facility was negligent in providing credentials to the surgeon who operated on the plaintiff.

Thomas Tharp and his wife, Paula, won the award in Jackson County in 2017 for injuries he alleged stemmed from a gall bladder removal in December 2011 at St. Luke’s Surgicenter in Lee’s Summit. The Tharps reached an out-of-court settlement with the surgeon but went to trial against St. Luke’s, alleging the surgicenter should not have granted the surgeon staff privileges at the facility.

The Tharps alleged that the surgeon failed to disclose some prior malpractice suits against him, and that under St. Luke’s bylaws, failure to provide complete information in the application should have meant his automatic removal from consideration for privileges.

In a 6-1 decision, however, the Supreme Court said that breach of the bylaws wasn’t enough. Judge W. Brent Powell wrote that the surgeon’s past lawsuits were evidence that he’d displayed ordinary negligence before, but not that he necessarily was incompetent.

“Accordingly, to establish incompetence, there must instead be evidence of the surgeon’s state of being, which shows the surgeon lacks the ‘knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others,’” Powell wrote, citing the Restatement (Second) of Torts.

Powell noted that the Tharps’ own expert said there was “no magical number” of malpractice suits that shows a surgeon is unqualified and cited a study showing that, depending on their specialties, physicians can face wildly different rates of malpractice claims on average.

Instead, Powell said, plaintiffs bringing a negligent credentialing claim must show that the improper admission of the doctor was the proximate cause of a patient’s injuries.

Gregory Forney of Shaffer Lombardo Shurin in Kansas City, who defended the hospital along with Dawn Parsons at trial in 2017, said he was glad the Supreme Court agreed with the points he tried to raise before the trial judge about the relevance of the prior lawsuits.

“That doesn’t mean they were negligently credentialed,” he said. “It just means they had a bad day.”

Forney said the ruling, a matter of first impression in Missouri, was one of just a handful in the country to address the requirements for a negligent credentialing claim. Teresa Young of Brown & James in St. Louis argued the case on appeal.

Tharp’s attorney, H. William McIntosh of The McIntosh Law Firm in Kansas City, couldn’t be reached for comment.

The ruling brought a solo dissent from Judge George W. Draper III, who argued that the jury verdict should be affirmed because the Tharps presented evidence that the surgical center and the surgeon fell below the standard of care.

“While the principal opinion would make a persuasive closing argument at trial on behalf of St. Luke’s . . . I believe the principal opinion reaches beyond the standard of review in order to overturn the jury’s verdict,” Draper wrote.

The Tharps’ case was argued last September alongside a separate case involving an appeal of a $28.9 million medical-malpractice verdict from Greene County. Both cases had challenged the constitutionality of a state law that allows portions of future medical damage awards to be paid out over long periods of time.

In January, the court ruled in Williams v. Mercy Clinic Springfield Communities that the interest rate required by the statute was “arbitrarily low” and ordered the judgment to be recalculated. But because the Tharps’ verdict was reversed, the court didn’t reach the constitutional question.

The case is Tharp v. St. Luke’s Surgicenter-Lee’s Summit LLC, SC96528.