                    In the Missouri Court of Appeals
                            Eastern District
                                      DIVISION THREE

LINDSEY SETZER and                                    )       No. ED107369
MICHAEL SETZER,                                       )
                                                      )
          Respondents - Cross-Appellants,             )       Appeal from the Circuit Court
                                                      )       of St. Louis County
vs.                                                   )
                                                      )       Honorable Michael T. Jamison
SSM HEALTH CARE ST. LOUIS,                            )
                                                      )
           Appellant - Cross-Respondent.              )       Filed: December 24,2019

                                           OPINION



       In this medical-malpractice and wrongful-death action, SSM Health Care St. Louis

appeals from the trial court’s judgment entered on the jury verdicts in favor of plaintiff Lindsey

Setzer on her personal-injury claim, and in favor of Lindsey and her husband Michael Setzer on

their wrongful-death claim for the loss of their unborn baby. SSM alleges the trial court erred in

not reducing the judgment by the amount of the settlement between the Setzers and Dr. Joseph

G. Herrmann, a joint tort-feasor of SSM. SSM’s allegation is well-taken. Given SSM’s request,

the parties’ stipulations, and the statutory provisions of Section 537.060 governing contributions

among tort-feasors, we hold that the trial court should have applied the reduction. We thus

affirm the trial court’s judgment in all respects except as to reduction under Section 537.060.
We reverse the trial court’s judgment with respect to reduction, and remand the case to the trial

court for further proceedings. 1

                                   Factual and Procedural Background

        The Setzers’ case stems from care Mrs. Setzer received at SSM St. Clare Health Center. 2

Mrs. Setzer presented to St. Clare’s emergency department complaining of severe pain, nausea,

vomiting, heartburn, abdominal pain, and a loss of appetite. Mrs. Setzer was fourteen weeks

pregnant at the time. After a short admission of about sixteen hours, during which Mrs. Setzer’s

condition worsened, Mrs. Setzer was discharged with an undiagnosed and untreated urinary tract

infection.

        The infection developed into sepsis. Hours after discharge, Mrs. Setzer drove to Mercy

Hospital in St. Louis with additional pain. She was admitted to the ICU, where she lapsed into a

coma and was near death. Mrs. Setzer remained in the ICU for seven days, and was in the

hospital for a total of ten days. The Mercy doctors diagnosed Mrs. Setzer as having a urinary

tract infection, kidney stones, and sepsis. Thereafter, Mrs. Setzer lost her unborn baby.

        The Setzers sued SSM Health Care St. Louis and Dr. Herrmann, the on-call OB-GYN at

St. Clare’s who was consulted to undertake Mrs. Setzer’s care. Mrs. Setzer sued for personal

injuries she suffered as a result of the untreated infection. Mr. and Mrs. Setzer jointly brought a

wrongful-death suit for the death of their unborn baby boy.

        The Setzers settled with Dr. Herrmann, and then proceeded to trial against SSM. The

jury found in favor of the Setzers and against SSM, on both the personal-injury negligence claim

and the wrongful-death claim. The jury found SSM liable for the actions of both Dr. Herrmann

and Nurse Amy Farr. SSM has appealed, raising a host of alleged errors on the part of the trial

1
  We deny the Setzers’ pending motion to strike SSM’s brief and its motion to dismiss SSM’s appeal for violations
of Rule 84.04.
2
  Appellant SSM admitted in its answer that it owned and operated St. Clare’s.

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court. In this decision, we address the one allegation with merit regarding the requested and

stipulated-to reduction in the judgment.


                                                  Discussion

        SSM maintains it is entitled to a reduction in the judgment entered against it by the

amount of the settlement paid to the Setzers by Dr. Herrmann. The trial court entered judgment

consistent with the jury verdicts without reducing the amount of assessed damages by the amount

of the settlement between the Setzers and Dr. Herrmann, despite SSM’s requests and the parties’

stipulations regarding the reduction. SSM alleges the trial court erred in not applying the

reduction. SSM is correct.

        Section 537.060 RSMo directs that a defendant’s liability shall be reduced by the amount

of settlements entered between a plaintiff and other joint tort-feasors. Sanders v. Ahmed, 364

S.W.3d 195, 211 (Mo. banc 2012). 3 This statutory section implements the common-law rule that

a plaintiff is entitled to only one satisfaction for the same wrong. Stevenson v, Aquila Foreign

Qualifications Corp., 326 S.W.3d 920, 925 (Mo. App. E.D. 2013). “Under common law, when a

judgment for a wrong is rendered against one who is a joint tort-feasor, and the judgment is

satisfied, the plaintiff cannot recover another satisfaction for the same wrong.” Gibson v. City of

St. Louis, 349 S.W.3d 460, 466 (Mo. App. E.D. 2011)(internal quotation omitted). The receipt

of full satisfaction from either tort-feasor for the wrong for which both are liable would bar

plaintiff’s recovery from the other for the same injury.”                  Stevenson, 326 S.W.3d at 925.

Correspondingly, “when the injured plaintiff settles with one of the tort-feasors for a portion of
3
 Section 537.060 governs contribution between tort-feasors, and states in relevant part that:
        When an agreement by release, covenant not to sue or not to enforce a judgment is given in good
        faith to one of two or more persons liable in tort for the same injury or wrongful death, such
        agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the
        agreement so provide; however such agreement shall reduce the claim by the stipulated amount
        of the agreement, or in the amount of consideration paid, whichever is greater.
(Emphasis added).

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the wrong for which each is liable, the injured person still retains her cause of action against the

other tort-feasors and recovery may be had for the balance of the injury.” Stevenson, 326 S.W.3d

at 925 (internal quotation omitted).

       SSM timely and repeatedly raised this issue at each stage of litigation. SSM pleaded the

request as an affirmative defense in its answer. Sanders, 364 S.W.3d at 211 (noting that a

reduction under Section 537.060 is a satisfaction of an amount owed, and must be pleaded and

proved as an affirmative defense). SSM specifically mentioned the settlement between the

Setzers and Dr. Herrmann, and specifically requested a credit under Section 537.060 for the

settlement payment made by or on behalf of Dr. Herrmann.

       The Setzers clearly stipulated to the reduction on at least two occasions. On the first day

of trial, in open court, before voir dire began, and out of the presence of the venire panel, SSM

again raised the issue of the settlement between the Setzers and Dr. Herrmann. At SSM’s

request, counsel for the Setzers expressly and clearly stipulated that should there be an adverse

verdict and judgment entered against SSM, that SSM would be entitled to a credit on that

judgment in the amount of the settlement between the Setzers and Dr. Herrmann. The Setzers

also stipulated that SSM did not need to plead or prove that there was, in fact, a payment.

       The Setzers’ counsel again stipulated to the reduction after trial, in chambers, at

arguments on SSM’s post-trial motion. In fact, it was the Setzers’ counsel who first brought the

matter to the court’s attention during that conference, informing the trial court that, although the

Setzers believed that SSM’s post-trial motion should be denied, “[w]e do believe that the

judgment needs to be amended because they’re entitled to a credit….”            Counsel for SSM

recounted the stipulation for the court, stating that by stipulation, the amount of the settlement

between the Setzers and Dr. Herrmann had to be applied to the judgment. The Setzers’ counsel



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expressly agreed with counsel’s recitation that the judgment had to be reduced. It appears the

trial court was well-aware of the request, as it clarified during that conference how much credit

should be applied.

       When, as here, the issues relating to prior settlement payments are undisputed, the proper

procedure is as follows:

       The parties should make a record out of the hearing of the jury regarding
       undisputed prior settlement payments made either as an advancement by the
       defendant or as a partial settlement payment by a joint tort-feasor. The trial judge,
       as a matter of law, then will take any prior payments into consideration and will
       credit them on the damages assessed by the jury’s verdict as required by law.

Gibson, 349 S.W.3d at 465 (quoting MAI 1.06 Committee Comment [1983 New]). The trial

court, however, did not apply a reduction. Given the parties’ stipulations, and the provisions of

Section 537.060, the trial court should have applied the reduction.

       Two claims and verdicts exist in this case, each with different parties. A confidential

amount of settlement also exists. We thus remand the cause to the trial court to appropriately

apply the reduction as agreed to by the parties.

       SSM raised thirteen other points on appeal. The Setzers raised one point on cross-appeal.

We deny those points. Rule 84.16(b)(5). An opinion discussing those points would have no

precedential value. We have, however, furnished the parties with a memorandum, for their

information only, setting forth the reasons for our decision.

                                            Conclusion

       We affirm the trial court’s judgment in all respects except as to reduction under Section

537.060. We reverse the trial court’s judgment with respect to reduction under Section 537.060,

and remand the case to the trial court for further proceedings.




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                                      ___________________________________
                                      Angela T. Quigless, J.

Mary K. Hoff, P.J., and Sherri B. Sullivan, J.,concur.




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