McCrary v. Truman Medical Center, Inc.

943 S.W.2d 695, 1997 Mo. App. LEXIS 259, 1997 WL 81104
CourtMissouri Court of Appeals
DecidedFebruary 25, 1997
DocketNo. WD 52598
StatusPublished
Cited by8 cases

This text of 943 S.W.2d 695 (McCrary v. Truman Medical Center, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCrary v. Truman Medical Center, Inc., 943 S.W.2d 695, 1997 Mo. App. LEXIS 259, 1997 WL 81104 (Mo. Ct. App. 1997).

Opinion

PER CURIAM.

This is an action for damages brought by Ms. Barbara McCrary against the Truman Medical Center (“TMC”) in the circuit court of Jackson County. Plaintiffs March 7,1995 petition asserts a 402A strict liability tort action against TMC and a claim for punitive damages. The hospital raised a number of arguments in support of its motion for summary judgment, which was sustained by the trial court.

This is the second trip to this court for the parties. Ms. McCrary initially filed a medical malpractice action (“McCrary I”) on March 10, 1993, against TMC. The petition was later amended to include Dr. Edward L. Mosby, who performed the surgical procedure on the plaintiff. M c Crary I was a malpractice claim arising out of the April 3, 1986 surgery, during which the plaintiff received an interpositional implant in her jaw at the hospital. The purpose of the implant was to replace the articulating surface of the temporomandibular joint, which is the joint connecting the upper and lower jaw. See In re TMJ Implants Prods. Liability Litigation, 872 F.Supp. 1019, 1021 (D.Minn.1995), summ. judgment granted, claim dismissed, 880 F.Supp. 1311 (D.Minn.1995), aff'd, 97 F.3d 1050 (8th Cir.1996). On December 22, 1994, the circuit court dismissed M c Crary I, holding that plaintiffs claims were barred by the two-year statute of limitations. Section 516.105, RSMo 1994. The plaintiffs appeal of the dismissal of her suit was affirmed by* this court. McCrary v. Truman Medical Ctr., 916 S.W.2d 831 (Mo.App.1995).

The underlying lawsuit in this appeal was filed March 7, 1995. In this case, the plain[697]*697tiff maintains a strict liability petition against TMC. As in M c Crary I, the claim arises out of the surgery and implant of April 3, 1986.

The factual background of Me Crary I is that the plaintiff was first examined for jaw pain complaints on January 27, 1986 by Dr. Mosby. The implant referred to was inserted on April 3, 1986. Ms. McCrary remained under Dr. Mosby’s care from that point until October 20, 1986. On March 8, 1988, Ms. McCrary sought Dr. Mosby’s care, and he advised her to have the implant removed. She declined. She had another appointment scheduled in April of 1988, but failed to keep it.

The implant was manufactured by Vitek, Inc. The Pood and Drug Administration issued a safety alert cautioning against damage that could result from the implant, and it urged dentists to contact their patients. On March 11, 1991, Dr. Mosby contacted his implant patients, including the plaintiff. On April 26, 1991, the plaintiff had her implant removed by Dr. Mosby at TMC.

The court of appeals will review a summary judgment ruling as it would any court-tried or equity proceeding and if it can affirm the judgment under any theory, it will do so. Irwin v. Wal-Mart Stores, Inc., 813 S.W.2d 99, 101 (Mo.App.1991).

When the trial court sustained TMC’s motion for summary judgment, it did not delineate the grounds upon which it granted the motion. If a grant of a summary judgment is sustainable on any theory, it must be sustained. Oetting v. Missouri Osteopathic Found., 806 S.W.2d 150, 153 (Mo.App.1991). The trial court is presumed to have based its decision on any or all of the grounds advanced by the movant in its motion for summary judgment. See Schwartz v. Lawson, 797 S.W.2d 828 (Mo.App.1990). The primary concern of this court is the correctness of the result reached. Richardson v. Collier Bldg. Cotp., 793 S.W.2d 366, 376 (Mo.App.1990).

The resolution of this case involves the closely related principles of splitting a cause of action and res judicata. They both involve a policy of the law to prevent multiplicity of suits. Dunn v. Pickard, 284 S.W.2d 6, 9-10 (Mo.App.1955). The defendant contends that the plaintiff has split her cause of action and attempted to try a single claim in a piecemeal fashion. Although a number of points are raised on appeal, this one is dispositive.

Generally, the test used to determine whether a cause of action is single and cannot be split is: (1) whether the separate actions brought arise out of the same act, contract or transaction, or (2) whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions. Eugene Alper Constr. Co. v. Joe Garavelli’s of West Port, Inc., 655 S.W.2d 132, 135 (Mo.App.1983). Missouri’s strong bias against the splitting of claims arises from the judicial desirability of litigating all claims in one suit rather than wasting the court’s time on separate lawsuits for separate claims between the same parties arising out of the same transaction. Long v. Walters, 833 S.W.2d 38, 39 (Mo.App.1992). The purpose of the general rule against the splitting of claims is to discourage a multiplicity of lawsuits. Id. Adjudication of the first ease, when the rule is applied, acts as a bar to the successful prosecution of the subsequent case. Id. The prohibition against splitting a cause of action is not applicable where the parties are different, Irwin v. Bertelsmeyer, 730 S.W.2d 302, 303 (Mo.App.1987), or where the claims arise from different acts or circumstances, Eugene Alper, 655 S.W.2d at 135, or where evidence needed to sustain the actions is different. Id.

In Me Crary I, the plaintiffs petition alleged:

[0]n the 3rd day of April, 1986, Dr. Mosby did perform surgery on Plaintiff wherein a medical device known as a temporoman-dibular joint interpositional implant was inserted into the mouth and jaw of the Plaintiff....

Likewise, in her petition in the underlying action, the plaintiff alleged that:

[0]n or about April 3,1986, Plaintiff underwent surgery at Truman Medical Center, Inc. wherein one (1) temporomandibular “Protoplast” interpositional implant (i.e. the “Product”) manufactured by Virtek, [698]*698Inc., was sold/ (sic) and or supplied for purposes of Mo.Rev.Stat. 537.760 by Defendant to Plaintiff and was implanted into Plaintiffs left temporomandibular joint.

Both petitions are grounded on the “defective” product, i.e. the interpositional implant, manufactured by Vitek, Inc. In the first petition, there are eight allegations of wrongdoing. The eight allegations may be summarized as that TMC either knew or should have known that the “implant device” was defective or TMC failed to inform plaintiff of the defective implant device.

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Bluebook (online)
943 S.W.2d 695, 1997 Mo. App. LEXIS 259, 1997 WL 81104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccrary-v-truman-medical-center-inc-moctapp-1997.