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Montgomery v. South County Radiologists12/19/2000
Appeal From: Circuit Court of the City of St. Louis, Hon. Michael B. Calvin
Opinion Vote: REVERSED AND REMANDED. Gaertner, Sr., P.J. concurs; Crahan, J., dissents in separate opinion.
Opinion:
This is a medical malpractice action brought by Evan and Judith Montgomery (hereinafter, collectively, "Montgomery") against South County Radiologists, Inc. (hereinafter, "SCR") and Edward Szoko, M.D. (hereinafter, "Dr. Szoko"). The trial court granted partial summary judgment in favor of SCR and summary judgment in favor of Dr. Szoko on the grounds that the action was barred by the statute of limitations in Section 516.105 RSMo (1994) and that the continuing care exception did not apply. Montgomery appeals. We reverse and remand.
In review of summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We accord the party against whom summary judgment was entered the benefit of every doubt. Green v. Washington University Medical Center, 761 S.W.2d 688, 689 (Mo. App. E.D. 1988). Summary judgment is intended to move the parties beyond the petition's allegations and determine if a material fact for trial exists. Martin v. City of Washington, 848 S.W.2d 487, 491 (Mo. banc 1993). Appellate review of the grant of summary judgment is purely a question of law and, hence, employs the same criteria as imposed by the trial court in its initial determination of the propriety of the motion. ITT Commercial Finance, 854 S.W.2d at 376.
Summary judgment will be granted as a matter of law to the moving party when there is no genuine issue as to any material fact. Rule 74.04(c)(3). The moving party bears the burden of establishing a right to judgment as a matter of law. Following the moving party's prima facie showing, summary judgment will be granted if the responding party fails to reply with specific facts showing a genuine issue of material fact exists for trial or with a demonstration that judgment as a matter of law is incorrect. Rule 74.04(e).
Once the moving party has established a right to judgment as a matter of law, the nonmoving party's only recourse is to show that there is a genuine dispute of a material fact by offering affidavits, depositions, answers to interrogatories, or admissions. ITT Commercial Finance, 854 S.W.2d at 381. Any evidence presented that demonstrates a genuine issue of material fact will defeat the moving party's prima facie showing. Landes v. State Farm Fire and Casualty Co., 907 S.W.2d 349, 353 (Mo. App. W.D. 1995). A "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. ITT Commercial Finance, 854 S.W.2d at 381. If a genuine issue of fact exists, summary judgment cannot be granted. Rule 74.04(c)(3).
When viewing the facts for the purpose of our summary judgment review, we find that: Montgomery suffered from lower back pain. During 1995, he sought treatment from a neurosurgeon at St. Anthony's Medical Center. In order to diagnose and alleviate Montgomery's distress, the surgeon sent him for radiological services. SCR performed the radiological services requested by the surgeon. SCR is the exclusive provider of radiological services for St. Anthony's Medical Center.
Montgomery underwent a series of three treatments of radiological services at SCR. It is SCR's practice to employ medical doctors specializing in radiology. When a patient is referred to SCR for radiology services, its services are provided on a random basis by one of its doctors, depending upon who is rev
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