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The Flag, March - April 2022

Vol. 78, No. 2 / March - April 2022

Journal - W. Dudley McCarterW. Dudley McCarter
W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.


State ex rel. Lutman v. Baker, 635 S.W.3d 548 (Mo. banc 2021).

Darin Lutman petitioned the Supreme Court of Missouri for a writ of prohibition to prevent the release of his medical records related to a vehicle accident. The Court found Lutman’s statements to police at the scene of an accident and his apology letter to the family of the other driver who was killed in the accident constituted implied waiver of physician-patient privilege.[2] Because Lutman "neither placed his medical conditions at issue nor (took) any action sufficient to waive the physician-patient privilege,” the Court’s preliminary writ was made permanent.[3]

Information a patient gives to a physician while he or she is being seen by that physician and that is “necessary to enable the physician to provide treatment is privileged.”[4] Additionally, the physician-patient privilege applies to medical records.[5] “The privilege is for the benefit of the patient and belongs to the patient, not the physician.”[6] A patient can waive the privilege by either express or implied waiver.[7] The most common waiver cases “involve plaintiffs who voluntarily place their medical condition in issue by filing a petition alleging that they suffered physical or mental injuries.”[8] To constitute an implied waiver, the patient’s act must show “a clear, unequivocal purpose to divulge confidential information.”[9]

The Court ruled Lutman’s statement to the investigating police officers, which did not contain privileged information, does not indicate a clear, unequivocal purpose to divulge his confidential medical information.[10] “In the same way Dubis’ mention of drinking wine did not constitute a waiver in Rodriguez … Lutman’s admission of a medical condition does not constitute a waiver here.”[11]

The plaintiff also claimed Lutman’s apology letter to them constituted a waiver of the physician-patient privilege because Lutman stated in the letter that he was an addict who felt like he was having a heart attack or blacking out right before the crash. “Again, however, without more, Lutman’s statements in the letter do not clearly and unequivocally indicate an intent to waive the physician-patient privilege.”[12]


Boothe v. DISH Network, Inc., 2021 WL 6057372 (Mo. banc 2021).

In July 2017, Gary Boothe Jr., was driving to a work appointment and stopped at a convenience store, where he bought, among other things, a breakfast sandwich. While driving to his appointment, Boothe, running slightly behind, continued on his route. Within a mile, he choked on the sandwich, attempted to slow down, and blacked out. He was injured when his vehicle collided with a pillar on the side of the road. He attempted to claim workers’ compensation benefits, but the Labor and Industrial Relations Commission’s denied his request. The commission found Boothe was not entitled to an award because his injury did not arise out of and in the course of his employment. The Supreme Court of Missouri affirmed the commission’s decision in Boothe v. DISH Network, Inc.[13]

To be eligible for workers’ compensation benefits, an injury must “arise out of and in the course of employment.”[14] “An injury will not be deemed to arise out of employment if it merely happened to occur while working but was not a prevailing factor and the risk involved … is one to which the worker would have been exposed equally in normal non-employment life.”[15] More generally, an employee – who bears the burden of proof – must show there was a “causal connection between an injury and a work activity other than mere occurrence” at work.[16]

Boothe’s injury’s risk source was eating while driving, which created a risk of choking and led to the accident resulting in injury. Eating while driving was not related to Boothe’s employment since DISH did not require him to eat breakfast after starting work, the Court found.[17]

“In accordance with section 287.020.3(2)(b), [Boothe] did not establish the risk source – eating while driving – was related to his employment or that he was not equally exposed to that risk in nonemployment life. Boothe, therefore, failed to establish his injury arose out of and in the course of employment,” the Court ruled.[18]


Allen v. State of Missouri, No SC 98929 (Mo. banc 2022).

Missouri’s 32nd Judicial Circuit appealed from a judgment entered in favor of Pamela and Kelly Allen who sued the state, Cape Girardeau County, and the City of Cape Girardeau after Pamela Allen fell down a flight of stairs in the Common Pleas Courthouse in Cape Girardeau. The state asserted the circuit court misapplied the law regarding the waiver of sovereign immunity. In Allen v. State of Missouri,[19] the Supreme Court of Missouri found that the Allens presented a “submissible case that the stairway was dangerous condition of which the State was sufficiently aware to waive sovereign immunity.”[20]

Under § 537.600, a “physical defect in the sovereign’s property and injuries directly stemming from that defect will subject the sovereign to tort liability.”[21] A sovereign may also be subject to liability if the plaintiff was harmed by a “physical deficiency in the state’s property which constituted a ‘dangerous condition.’”[22] While the state contended the stairs didn’t constitute a dangerous condition because they were an “open and obvious condition” of which Pamela Allen knew and appreciated, the Court disagreed with this argument. “[W]hen the dangerous condition is so open and obvious that the invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not breach the standard of care owed to invitees ‘unless the possessor should anticipate the harm despite such knowledge or obviousness.”’[23]

“While the condition of the stairway may have been open and obvious, the State should have anticipated the harm that befell [Pamela] Allen,” the Court stated.[24] Since there wasn’t evidence to indicate Pamela Allen had an alternative way to access the files at the courthouse, the Court noted, the state should have anticipated the stairs could lead to Pamela Allen being injured.[25] The Supreme Court of Missouri found that even if the state had lacked actual notice of the staircase’s condition, the Court “has previously found similar facts sufficient to establish constructive notice.”[26] “The State had sufficient time and opportunity to become aware of the condition of the stairs, and it is reasonable to charge the State with constructive notice.”[27]


Payne v. Rehabilitation Institute of St. Louis, LLC, 2022 WL 211962 (Mo. App. E.D. 2022).

Nancy Payne appealed the Circuit Court of St. Charles County’s decision granting summary judgment in favor of Rehabilitation Institute of St. Louis, LLC, after the court concluded that Payne filed her medical malpractice claim beyond the period allowed under the statute of limitations. The Missouri Court of Appeals, Eastern District, affirmed the circuit court’s ruling in Payne v. Rehabilitation Institute of St. Louis, LLC.[28]

While the institute provided health care services to Payne, she was left unattended and fell out of her bed, allegedly sustaining a head injury. Thirty months later, she filed a three-count petition in St. Charles County circuit court, alleging improper medical care, negligence, and negligence per se. The trial court granted summary judgment in favor of the rehabilitation institute because Payne’s claim was rooted in a medical malpractice claim, requiring her to file the suit within two years of the alleged incident. “[C]ourts do not rely on the label a plaintiff applies to a claim in the pleading to decide whether § 516.105 applies. Rather, what matters is whether or not the claim is in fact against a health care provider and related to health care.”[29]

Payne argued § 516.105 was inapplicable to her negligence claims because she was not receiving medical services at the time she fell, which occurred after staff left her unattended in a bed without an alarm. However, the court ruled Payne’s injury was connected to her medical care since the damages occurred while she was under the care and custody of the rehabilitation institution, who was providing health care services to address Payne’s health care needs. “Applying the statute and the most relevant Missouri case law, [Payne’s] claims are rooted in the provision of health care and medical negligence covered by § 516.105, not ordinary negligence,” the Court of Appeals ruled.[30]


1 W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.

2 State ex rel. Lutman v. Baker, 635 S.W.3d 548 (Mo. banc 2021).

3 Id. at 550.

4 State ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997).

5 State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 566 (Mo. banc 2006).

6 Id.

7 Dean, 182 S.W.3d at 567.

8 Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 63 (Mo. banc 1999).

9 Id.

10 Lutman, 635 S.W.3d at 552.

11 Id. at 553. See also State v. Ermatinger, 752 S.W.2d 344, 350 (Mo. App. 1988).

12 Id.

13 2021 WL 6057372 (Mo. banc 2021).

14 RSMo § 287.020.3(2).

15 Miller v. Mo. Hwy. & Transp. Comm’n, 287 S.W.3d 671, 672 (Mo. banc 2009).

16 Id. See also Johme v. St. John’s Mercy Healthcare, 366 S.W.3d 504, 510 (Mo. banc 2012).

17 Boothe, 2021 WL 6057372 at 3.

18 Id.

19 No SC 98929 (Mo. banc 2022).

20 Id. at 2.

21 State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002); see also Maune ex rel. Maune v. City of Rolla, 203 S.W.3d 802, 805 (Mo. App. 2006).

22 Alexander v. State, 756 S.W.2d 539, 542 (Mo. banc 1988).

23 Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo. banc 1993) (quoting Restatement (Second) of Torts, § 343A(1)(1965)).

24 Allen, No. SC 98929 at 12.

25 Id.

26 Id. at 13. See also e.g., Hensley v. Jackson Cnty., 227 S.W.3d 491 (Mo. banc 2007).

27 Id.

28 2022 WL 211962 (Mo. App. E.D. 2022).

29 Id. at 3.

30 Id. at 4.