|||THE SUPREME COURT OF THE STATE OF MISSOURI
|||Case Number: SC82214
|||May 30, 2000
|||DENISE BUDDING, APPELLANT, V. SSM HEALTHCARE SYSTEM, ET AL., RESPONDENTS.
|||Counsel for Appellant: Jeffrey J. Lowe Counsel for Respondent: Kenneth
W. Bean and Carl J. Geraci
|||The opinion of the court was delivered by: John C. Holstein, Judge
|||Appeal From: Circuit Court of the City of St. Louis, Hon. David C. Mason
|||Opinion Vote: AFFIRMED. Price, C.J., Limbaugh, White, Wolff and Benton,
|||JJ., concur; Covington, J., not participating.
|||Denise Budding sued SSM Healthcare System *fn1
(Hospital) for personal injuries arising from defectively designed Vitek
teflon temporomandibular joint implants. Budding had the implants inserted
at the Hospital and proceeded on a theory of strict product liability. The
jury rendered a verdict in favor of the Hospital, and the trial court entered
judgment accordingly. Budding appealed. Following opinion by the Missouri
Court of Appeals, Eastern District, the case was transferred here. This
Court has jurisdiction. Mo. Const. art. V, sec. 10. The judgment of the
trial court is affirmed.
|||This Court reviews facts in a light favorable to the verdict. Bell v.
May Dep't Stores Co., 6 S.W.3d 871, 873 (Mo. banc 1999). As a teenager,
Budding began to experience pain in her jaws. Eventually her condition worsened,
leading to headaches and difficulty eating. In 1983 Budding visited Dr.
Kenneth Rotskoff who diagnosed her with temporomandibular joint disease.
In order to treat her condition, Dr. Rotskoff scheduled Budding for surgery
in May 1984 at the Hospital. During the procedure, he concluded that it
would be impossible to rebuild Budding's joint and Vita teflon implants
would be necessary to correct her problem. At that point, Dr. Rotskoff obtained
the implants from the inventory the Hospital had ordered and provided at
his request. After selecting the implants, he sized and surgically inserted
them. The Hospital never billed Budding for the devices.
|||Following the surgery, Budding's condition improved. She was able to return
to work, perform household chores, eat solid food and lead a fairly normal
life. An occasional headache and minimal pain were the only symptoms that
persisted after she received the implants. However, in 1990, Budding again
started to suffer from severe pain. She again contacted Dr. Rotskoff. He
examined her and recommended x-rays be taken. Then, in March 1991, he sent
Budding a letter requesting her to come in for an examination and informing
her of an FDA warning about the safety hazards posed by the implants.
|||Finally, in April 1993 Budding decided to schedule surgery to remove the
implants. During the operation, Dr. Rotskoff discovered a giant cell tumor
and found one of the implants had fixated to the base of Budding's skull.
As he tried to remove this implant, part of the skull broke off leaving
a hole in the floor of Budding's temporomandibular joint. The hole resulted
in a cerebral spinal fluid leak which entered the joint through the new
hole. At that point, a neurosurgeon was called in to patch the leak. Due
to these unexpected complications, Dr. Rotskoff was only able to remove
one of the implants. Budding required additional surgery to have the other
|||Dr. Rotskoff scheduled Budding for the additional operation three weeks
later on April 30, 1993. Between the surgeries, she experienced severe pain,
suffered facial nerve weakness, facial numbness, bite-joint pain, hearing
impairment, pain in the side of her head, heat sensations on her face and
seizure-like episodes. The second operation proceeded relatively well, permitting
Dr. Rotskoff to remove the remaining implant without any additional complications.
While recovering from this procedure, Budding again suffered similar pain
and sensations to those experienced following the previous surgery.
|||In October 1995, Budding sued the Hospital on a theory of strict liability
for using what she alleged were defectively designed implants. She suggested
implants made of teflon were prone to excess fragmentation and wear. Since
teflon is extremely bioreactive, this increases the chance a giant cell
foreign body reaction will occur, similar to hers, causing the destruction
of bone and tissue. As noted above, this argument failed to persuade the
jury, which returned a verdict in favor of Hospital.
|||Budding's first claim on appeal asserts the trial court erred in requiring
the use of the word "sale" instead of "transfer" in
the verdict directing instruction relating to products liability. This claim
of error assumes that a health care provider is strictly liable for a products
liability claim where the health care provider "transfers" a defective
medical device to a patient. Because the Court concludes that chapter 538
*fn3 forecloses any such
claims for strict products liability, the Court need not reach the question
|||Section 538.205(5) defines "Health care services" to include
the "transfer to a patient of goods or services . . . in furtherance
of the purposes for which an institutional healthcare provider is organized."
|||Section 538.225.1 mandates:
|||In any action against a health care provider for damages for personal
injury or death on account of the rendering of or failure to render health
care services, the plaintiff or his attorney shall file an affidavit with
the court stating that he has obtained the written opinion of a legally
qualified health care provider which states that the defendant health care
provider failed to use such care as a reasonably prudent and careful health
care provider would have under similar circumstances and that such failure
to use such reasonable care directly caused or directly contributed to cause
the damages claimed in the petition.
|||The affidavit must be filed within ninety days after the filing of the
petition unless extended for good cause. Sec. 538.225.4. If a plaintiff
fails to file such affidavit, the trial court may dismiss the petition.
|||The Court's role in interpreting these statutes is to "ascertain
the intent of the legislature from the language used, to give effect to
that intent if possible, and to consider the words used in their plain and
ordinary meaning." State ex rel. Riordan v. Dierker, 956 S.W.2d 258,
260 (Mo. banc 1997). In determining the legislature's intent in adopting
the various provisions of chapter 538, several conclusions are obvious.
First, by using the words "any action" in sec. 538.225.1, the
legislature clearly demonstrated its intent that the statute not only apply
to a negligence action but to a products liability action as well. Second,
the legislature intended the provisions of the chapter to apply not only
to services but to transfers of goods to a patient in furtherance of a health
care institution's purpose. Third, the legislature intended to impose specific
limitations on the traditional tort causes of action available against a
health care provider. Included in these limitations is not only a cap on
non-economic damages, sec. 538.210, and structured settlements of future
damages, sec. 538.220, but the requirement that the cause of action be dependent
upon an affidavit by a "legally qualified health care provider"
of failure to exercise reasonable care attributable to the defendant health
care provider, sec. 538.225. *fn4
|||It is true that nothing in the statute specifically requires the plaintiff
to prove negligence or other level of culpability in order to recover. However,
in construing the statute, the Court is not to assume the legislature intended
an absurd result. Akers v. Warson Garden Apartments, 961 S.W.2d 50 (Mo.
banc 1998). It would be an obvious absurdity to require an affidavit of
negligence as a condition of proceeding with the cause of action even though
negligence need not be proved in order to submit the case to a jury or to
obtain a judgment. On that basis alone, it is reasonable to conclude that
the legislature intended to eliminate liability of health care providers
for strict liability.
|||Further buttressing the conclusion that strict liability is not applicable
to health care providers is sec. 538.300. That section provides that the
provisions of sec. 537.760 to sec. 537.765, relating to products liability
actions, are not applicable to actions against health care providers. Section
537.760 codifies sec. 402A of the Restatement (Second) of Torts. Rodriguez
v. Suzuki Motor Co., 996 S.W.2d 47, 65 (Mo. banc 1999). *fn5
The exception of health care providers from the provisions codifying strict
products liability is yet another clear indication that the general assembly
intended to abrogate such liability for health care providers. Just as enactment
of sec. 537.760 codified strict products liability, the exception provided
for in sec. 538.300 was intended to eliminate such statutory liability for
health care providers.
|||Perhaps the best explanation for the statutory silence regarding strict
liability for providing a defective medical device is found in the state
of the common law regarding products liability claims against health care
providers in this state prior to the enactment of chapter 538 in 1986. At
that time, the only case in which the courts of this state had considered
strict liability against a health care provider was that of Hershley v.
Brown, 655 S.W.2d 671 (Mo. App. 1983). There the court of appeals held that
products liability was not applicable to a physician who implanted a medical
device in a patient. Id. at 675. It found persuasive a Wisconsin case refusing
to impose strict liability upon a surgeon for injuries arising from a lung
biopsy. Hoven v. Kelble, 256 N.W.2d 379 (Wis. 1977). In addition, the court
cited a California case holding strict liability inapplicable to a physician
for injuries resulting from a prescribed medication. Carmichael v. Reitz,
95 Cal. Rptr. 381, 17 Cal. App.3d 958 (1971). Relying on Carmichael, the
California courts that same year considered whether products liability was
applicable to a hospital in Silverhart v. Mount Zion Hosp., 98 Cal. Rptr.
187, 20 Cal. App.3d 1022 (1971). In that case, the court refused to extend
products liability to a hospital for injuries caused by a broken surgical
needle. Against that backdrop, the only additional safeguards to assure
against strict products liability claims were the requirements of an affidavit
of negligence and to make clear that the codification of strict liability
for defective products was inapplicable to health care providers. *fn6
Thus, the general assembly intended that liability of health care providers
be rooted in a culpable state of mind that gives rise to traditional tort
liability and not in strict liability relating to the transfer of products
under the Restatement (Second) of Torts sec. 402A, as codified in sec. 537.760.
|||The Court is mindful that since adoption of chapter 538, a number of cases
have been decided by the court of appeals of this state allowing a plaintiff
to bring a strict products liability action against a hospital where the
hospital transferred a defective medical device to a patient. In Bell v.
Poplar Bluff Physicians Group, 879 S.W.2d 618 (Mo. App. 1994), the court
adopted the reasoning of the dissent in State ex rel. American Medical Int'l,
Inc. v. Sweeney, 845 S.W.2d 648 (Mo. App. 1992) (Maus, J., dissenting).
The dissent in Sweeney agreed that sec. 538.225, requiring an affidavit
of fault attributable to the defendant health care provider, applied to
a hospital that sells or transfers a surgical implant to a patient but construed
that section to require only an affidavit that the health care provider
sold a defective product. Id. at 652-53. Bell, by its reliance on Sweeney,
would eliminate the clear legislative requirement of an affidavit that a
health care provider "failed to use such care as a reasonably prudent
and careful health care provider would have under similar circumstances"
and that such failure caused injury to the plaintiff. To accept an affidavit
of a lower standard of care than negligence or a different cause of injury
than the defendant health care provider's fault is to rewrite the statute,
not construe it. Bell has been followed in Brandon v. Southeast Missouri
Hospital, Inc., 926 S.W.2d 113 (Mo. App. 1996), and Pinkerton v. Southeast
Missouri Hosp. Ass'n, 926 S.W.2d 137 (Mo. App. 1996).
|||More recently, Bell was taken a step further in Mulligan v. Truman Medical
Ctr., 950 S.W.2d 576 (Mo. App. 1997). Like Bell, the Mulligan court would
permit a strict liability case to proceed against a health care provider
without the affidavit of fault mandated by sec. 538.225. In addition, the
Mulligan court construed sec. 538.300 as intended to retain common law strict
products liability against health care providers, even though such liability
had been specifically rejected in the single Missouri case in which such
claim was raised prior to enactment of sec. 538.300. To the extent Bell,
Brandon, Pinkerton and Mulligan are inconsistent with the text and history
of chapter 538, they are overruled.
|||The legislature has spoken with reasonable clarity expressing an intent
to eliminate liability of health care providers for strict products liability.
All canons of statutory construction are subordinate to the requirement
that the Court ascertain and apply the statute in a manner consistent with
that legislative intent. Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15,
19 (Mo. banc 1995). As the briefs of the parties point out, appealing public
policy arguments can be made both for and against imposing strict liability
where a health care provider transfers a defective product to a patient.
However, when the legislature has spoken on the subject, the courts must
defer to its determinations of public policy.
|||The Court concludes that because plaintiff did not make a submissible
case against the Hospital based on negligently providing a defective implant,
any error in the instruction on the subject is not prejudicial. The judgment
of the trial court is affirmed.
|||*fn1 . Two defendants
were involved in the lawsuit, SSM Healthcare System and SSM Healthcare System
II. Each owned St. Mary's Health Center at different times. For simplicity's
sake, both are referred to in the singular as was the case at trial.
|||*fn2 . Vitek, the manufacturer,
filed for bankruptcy, and Budding's claim was discharged therein.
|||*fn3 . All statutory
references are to RSMo 1994.
|||*fn4 . Contrary to
dicta in Mahoney v. Doerhoff Surgical Servs., Inc. 807 S.W.2d 503, 508 (Mo.
banc 1991), nothing in sec. 538.225 exempts a plaintiff from filing an affidavit
who shows "that the medical malpractice . . . is of that untypical
kind that does not require proof of standard of care by expert opinion."
|||*fn5 . Budding cites
Connelly v. Iolab Corp., 927 S.W.2d 848 (Mo. banc 1996), to argue that secs.
537.760 to 537.765 did not codify common law products liability. That case
merely stated that "plaintiffs have asserted common law causes of action
under Missouri law." Id. at 851. In context, that statement does not
contradict the fact that the common law cause of action has now been codified.
|||*fn6 . Section 538.300
was enacted as part of the same bill as sec. 537.760 to sec. 537.765 in
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