                    In the Missouri Court of Appeals
                            Eastern District

                                       DIVISION FOUR


COLLIN AND COURTNEY                          )      No. ED99895
JEFFERSON, BY AND THROUGH                    )
THEIR NATURAL FATHER AND                     )
NEXT FRIEND, ERIC JEFFERSON AND              )      Appeal from the Circuit Court
THE ESTATE OF GLORIA MITCHELL                )      of St. Louis County
MOSS, BY AND THROUGH ITS                     )
PERSONAL REPRESENTATIVE,                     )
WALTER MOSS,                                 )
                                             )
       Plaintiff/Appellant,                  )      Honorable Gloria C. Reno
                                             )
vs.                                          )
                                             )
MISSOURI BAPTIST MEDICAL                     )
CENTER AND AMY MOSHER, M.D.                  )
AND MIDWEST RADIOLOGICAL                     )      Filed: August 19, 2014
ASSOCIATES, P.C.,                            )
                                             )
       Defendants/Respondents.               )




                                     I. INTRODUCTION

       Plaintiffs Collin and Courtney Jefferson, by and through their natural father and next

friend, Eric Jefferson, (“the Jeffersons”) appeal the Circuit Court of St. Louis County’s grant of

summary judgment in favor of defendant Missouri Baptist Medical Center (“MBMC”). On

appeal, the Jeffersons argue that the trial court erred by granting summary judgment in favor of
MBMC on the basis of section 538.210.2(3), R.S.Mo. (Cum Supp 2007). Specifically, they argue

that the trial court incorrectly defined the term “employee” within the meaning of that section.

We agree. We reverse the trial court’s grant of summary judgment and remand for further

proceedings consistent with this opinion.

                                            II. FACTS

       Viewed in a light most favorable to the Jeffersons, the following facts led to the instant

suit. Decedent Crystal Jefferson delivered her first child at age 31 on October 27, 2005, via

caesarian section at MBMC. During her time in the hospital, she experienced abdominal pain and

underwent a CT scan of the abdomen and pelvis. The CT scan showed a soft tissue mass in the

abdomen as well as fluid collection in the pelvis. The attending radiologist recommended a

follow-up study.

       Ms. Jefferson underwent a follow-up CT scan at MBMC on December 9, 2005. This

second scan also showed a soft tissue mass in the abdomen and fluid collection in the pelvis.

Again, the attending radiologist recommended a follow-up study to address both the tissue mass

and the fluid.

       On January 19, 2006, Ms. Jefferson underwent a third CT scan at MBMC. Dr. Mosher, a

radiologist, read and interpreted the results of the study and posted remarks to Ms. Jefferson’s

medical chart. Dr. Mosher informed Ms. Jefferson that the fluid collection had resolved, but

failed to mention in her post-study report or to Ms. Jefferson that the soft tissue mass was still

present. Accordingly, Ms. Jefferson believed her medical problem had been resolved.

       In the spring of 2008, however, Ms. Jefferson began to notice an abnormal pressure in her

abdomen. Testing soon revealed that the soft tissue mass was not only still present, but was in




                                                2
fact stage-IV colon cancer. By this point, the tissue mass was inoperable. As a result, Ms.

Jefferson died of cancer in 2011.

        The Jeffersons filed the instant suit on December 15, 2011, alleging that Ms. Jefferson’s

cancer would have been treated two years earlier if Dr. Mosher had not negligently overlooked

the soft tissue mass during the 2006 CT scan. 1 In response, MBMC filed a motion for summary

judgment citing section 538.210.2(3), which bars the Jeffersons from recovering against MBMC

for the tortious actions of Dr. Mosher if Dr. Mosher is not MBMC’s “employee.” MBMC

asserted that Dr. Mosher was actually an employee of Midwest Radiological Associates, 2 which

directly contracted with and paid Dr. Mosher, rather than its own employee. After a hearing, the

trial court granted summary judgment in favor of MBMC. This appeal follows.

                                    III. STANDARD OF REVIEW

        Our review of summary judgment is de novo. Manner v. Schiermeier, 393 S.W.3d 58, 61-

62 (Mo. banc 2013). “The criteria on appeal for testing the propriety of summary judgment are

no different from those which should be employed by the trial court to determine the propriety of

sustaining the motion initially.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,

854 S.W.2d 371, 376 (Mo. banc 1993). We “review[] the record in a light most favorable to the

party against whom judgment was entered, without deference to the trial court’s findings, and

accord[] the non-movant ‘the benefit of all reasonable inferences from the record.’” Manner, 393

S.W.3d at 61-62 (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 376). “Summary judgment

is appropriate where the moving party has demonstrated, on the basis of facts as to which there is

no genuine dispute, a right to judgment as a matter of law.” Daugherty v. City of Maryland

        1
           The Jeffersons also named as defendants Midwest Radiological Associates and Dr. Mosher herself. These
claims were resolved separately from the claim against MBMC now on appeal.
         2
           Midwest Radiological Associates is a partnership of doctors affiliated with MBMC. According to the
Jeffersons’ reply to MBMC’s motion for summary judgment, a radiologist is not permitted to practice at MBMC
unless she is also a member of Midwest Radiological Associates.

                                                       3
Heights, 231 S.W.3d 814, 818 (Mo. banc 2007). “As the trial court’s judgment is founded on the

record submitted and the law, an appellate court need not defer to the trial court’s order granting

summary judgment.” 3 ITT Commercial Fin. Corp., 854 S.W.2d at 376. Additionally, “[s]tatutory

interpretation is an issue of law that this Court reviews de novo.” Finnegan v. Old Republic Title

Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. banc 2008).

                                              IV. DISCUSSION

        Section 538.210(3) bars the Jeffersons from recovering against MBMC for the tortious

actions of Dr. Mosher, if Dr. Mosher is not MBMC’s “employee.” 4 The Jeffersons argue that the

trial court’s determination that Dr. Mosher was not MBMC’s employee was based on an

erroneous interpretation of the term “employee.” Specifically, the Jeffersons contend that the

term “employee,” within the meaning of section 538.210.2(3), should be defined according to its

dictionary definition and common-law principles of agency, which focus primarily on the level

of control the employer exercises over the purported employee’s work performance. Because

MBMC exercised a significant degree of control over Dr. Mosher’s work performance, the

Jeffersons argue that the trial court erred by concluding as a matter of law that Dr. Mosher was

not MBMC’s employee, and that section 538.210.2(3) therefore barred their claim.

        In response, MBMC argues that the trial court correctly defined the term “employee” in

section 538.210.2(3) in accordance with the definition of “physician employee” provided in the

definitions section of Chapter 538. Specifically, the legislature in section 538.205(9), R.S.Mo.

(Cum. Supp. 2007), defines a “physician employee” as “any person or entity who works for

hospitals for a salary or under contract and who is covered by a policy of insurance or self-

        3
           The trial court failed to explain why it granted summary judgment. Therefore, we presume that the trial
court did so based on the theory raised by MBMC in MBMC’s motion for summary judgment. See Cent. Mo. Elec.
Co-op. v. Balke, 119 S.W.3d 627, 635 (Mo. App. W.D. 2003).
         4
           The parties agree that MBMC is not liable for Dr. Mosher’s allegedly negligent acts if Dr. Mosher is not
an “employee” of MBMC.

                                                        4
insurance by a hospital for acts performed at the direction or under control of the hospital.”

Because the undisputed facts show that Dr. Mosher does not meet this definition, MBMC

contends that section 538.210.2(3) bars the Jeffersons’ claim as a matter of law.

        To resolve the foregoing dispute, we first address the reasons that the legislature’s

definition in section 538.205(9) of “physician employee” does not apply to section 538.210.2(3).

Second, we define the term “employee” in section 538.210.2(3). Lastly, we remand to the trial

court to apply the correct definition of the term “employee” in the context of section

538.210.2(3)

        A. Section 538.210.2(3)’s Statutory Bar and 538.205(9)’s Definition of “Physician

        Employee”

        In 2005, the legislature amended Chapter 538, entitled “Tort Actions Based on Improper

Healthcare,” by enacting the current section 538.210, entitled “Limitation on noneconomic

damages—jury not to be informed of limit—limit—punitive damages, requirements.” The basic

purpose of section 538.210 is to limit wrongful-death claims against healthcare providers and

their employees. 5 Section 538.210 accomplishes this purpose by two primary means. First,

section 538.210.1 provides in pertinent part that in claims “arising out of the rendering of or the

failure to render health care services, no plaintiff shall recover more than three hundred fifty

thousand dollars for noneconomic damages.” Second, section 538.210.2(3), the provision at issue

        5
           Until recently, section 538.210.1 limited non-economic damages claims against healthcare providers and
their employees for personal injury. However, in Watts v. Lester Cox Medical Center, 376 S.W.3d 633 (Mo. banc
2013), the Missouri Supreme Court held that section 538.210.1’s cap on non-economic damages was
unconstitutional as applied to personal-injury claims. The Jeffersons summarily argue that Watts also invalidates
section 538.210.2(3), which is a statutory bar on healthcare providers’ liability in wrongful-death claims based on
the actions of non-employees. However, as MBMC correctly observes, Watts did not render section 538.210.2(3)
unconstitutional. The Jeffersons fail to recognize that Watts only dealt with section 538.210.1’s cap on non-
economic damages. Additionally, only four months before Watts was decided, the Missouri Supreme Court in
Sanders v. Ahmed, 364 S.W.3d 195, 204 (Mo. banc 2012), specifically upheld the constitutionality of section
538.210.1’s cap on non-economic damages in regard to wrongful-death claims. Cf. Mo. Roundtable for Life, Inc. v.
State, 396 S.W.3d 348, 353 (Mo. banc 2013) (explaining unconstitutional portion of statute may be severed to leave
constitutional portion in effect).

                                                        5
here, instructs that “[n]o individual or entity whose liability is limited by the provisions of

[Chapter 538] shall be liable to any plaintiff based on the actions or omissions of any other entity

or person who is not an employee of such individual or entity.” (emphasis added).

         The legislature did not provide a specific definition for the term “employee” for the

purposes of section 538.210.2(3). Therefore, MBMC directs our attention to Chapter 538’s

definitions section, which contains a definition for a different term: “physician employee.”

Section 538.205(9). Although section 538.205 is prefaced with, “[a]s used in sections 538.205 to

538.230, the following terms shall mean,” the term “physician employee” appears nowhere in

Chapter 538 besides the definitions section. But see section 538.210.1(1), R.S.Mo. (2000)

(providing, prior to legislature’s 2005 amendment of Chapter 538, that one category of defendant

protected by the cap on non-economic damages is “[a] hospital . . . and its employees and

physician employees who are insured under the hospital’s professional liability insurance policy”

(emphasis added)). 6

         Citing the principle of statutory construction that courts interpret statutes with the same

or similar subject matter in pari materia, or by reference to one another, see, e.g., Lane v.

Lensmeyer, 158 S.W.3d 218, 226 (Mo. banc 2005), MBMC contends that we should look to

section 538.205(9)’s definition of “physician employee” for the meaning of the term “employee”

in section 538.210.2(3). Because the legislature’s use of the term “employee” in section

538.210.2(3) is unambiguous, however, we decline to do so.

         MBMC fails to acknowledge the basic rule that we “give effect to legislative intent as

reflected in the plain language of the statute.” Gash v. Lafayette Cnty., 245 S.W.3d 229, 232

(Mo. 2008) (quoting State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007)).


         6
         Prior to 2005, Chapter 538 did not contain a statutory bar to healthcare provider liability for the actions of
employees akin to the present section 538.210.2(3).

                                                          6
We may look beyond the plain language of section 538.210.2(3)—and resort to extrinsic aids

such as the principle that statutes should be read in pari materia—only if the statute is

ambiguous. See Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 668-69 (Mo. banc 2010)

(“[T]there is no need to refer to other . . . statutes where a statute’s own language is clear.”); 2B

Norman Singer & Shambie Singer, Sutherland Statutes and Statutory Construction section 51.1

(7th ed. 2008). “A statute is ambiguous when its plain language does not answer the current

dispute as to its meaning.” Derousse v. State Farm Mut. Auto. Ins. Co., 298 S.W.3d 891, 895

(Mo. banc 2009).

         Here, section 538.210.2(3)’s plain language is clear. It provides that MBMC is not liable

to the Jeffersons for the actions of Dr. Mosher if Dr. Mosher is not MBMC’s “employee.”

Section 538.210.2(3). It is not ambiguous simply because MBMC has identified a different

term—“physician employee”—within the definitions section of Chapter 538. 7 See J.B. Vending

Co., Inc. v. Dir. of Revenue, 54 S.W.3d 183, 188 (Mo. banc. 2001) (“[T]he mere fact that the

litigants disagree over the meaning of [“employee”] does not render the statute ambiguous.”).

“Indeed, the legislature’s use of different terms . . . is presumed to be intentional and for a

particular purpose,” Armco Steel v. Kansas City, 883 S.W.2d 3, 7 (Mo. banc 1994), and we

“cannot simply insert terms that the legislature has omitted” under the pretense of statutory

construction, Loren Cook Co. v. Dir. of Revenue, 414 S.W.3d 451, 454 (Mo. banc 2013). 8


         7
           We of course recognize, however, that had the legislature specifically defined the term “employee,” rather
than “physician employee,” in the definitions section of Chapter 538, we would be bound to apply that definition of
“employee” to 538.210.2(3). See State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 479 (Mo. banc 2013) (“[T]he
lawmaking body’s own construction of its language by means of definition of the terms employed should be
followed in the interpretation of the statute to which it relates . . . .” (first alteration in original) (quoting In re
Hough’s Estate, 457 S.W.2d 687, 691 (Mo.1970))).
         8
           Though not exactly on point, in Cook v. Newman, 142 S.W.3d 880, 892 (Mo. App. W.D. 2004) (en banc),
the court was asked to determine whether the legislature’s use of the term “employee” was intended to include
“physicians” or “physician employees” within the meaning of a prior (and markedly different) version of section
538.210.2. The court observed that the legislature had specifically used the terms “physician employee” and
“physician” in subsections 538.210.2(1) and 538.210.2(2), R.S.Mo. (2000), respectively, to describe two categories

                                                           7
Rather, we must presume that if the legislature had meant to use the term “physician employee”

in section 538.210.2(3) in order to reference that term’s definition in section 538.205(9), it would

have done so. See Aquila Foreign Qualifications Corp. v. Dir. of Revenue, 362 S.W.3d 1, 5 (Mo.

banc 2012) (explaining legislature would have used term “restaurants” in statute on food

processing if it had meant to include restaurants); Nelson v. Crane, 187 S.W.3d 868, 870 (Mo.

banc 2006) (“If the legislature intended for the terms ‘committed’ and ‘detention’ to have the

same meaning, it could have utilized consistent terminology by using one term or the other.”);

see also section 104.010.1(21), R.S.Mo. (Cum. Supp. 2013) (providing special definition for

term “employee” in statutes regarding state employee benefits); accord section 287.020.1,

R.S.Mo. (Cum. Supp. 2013) (workers’ compensation); section 36.152(2), R.S.Mo. (2000) (state

executive branch personnel); section 56.805.8, R.S.Mo. (2000) (prosecuting and circuit

attorneys’ retirement system); section 50.1000(8), R.S.Mo. (Cum. Supp. 2007) (county

employees’ retirement system).

         Because section 538.210.2(3) is unambiguous, we need not go beyond the plain and

ordinary meaning of its language. See Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo.

banc 1998). However, even if there was ambiguity, we note that the legislative history of section

538.210 reveals that the legislature deleted the term “physician employee” from section 538.210

when it amended the statute in 2005. Compare section 538.210, R.S.Mo. (2000), with section

538.210, R.S.Mo. (Cum. Supp. 2007). “[W]e are not to conclude that the legislature’s deleting

[this] significant term[] from [section 538.210] is meaningless.” Pettis v. Mo. Dep’t of Corr., 275

S.W.3d 313, 319 (Mo. App. W.D. 2008). Rather, “[w]hen the legislature amends a statute, that


of defendants protected by the statute’s cap on non-economic damages, but used only the term “employee” to
describe a third category of defendants in the subsection at issue, section 538.210.2(3), R.S.Mo. (2000). Cook, 142
S.W.3d at 892. Therefore, the Court concluded that “[t]o construe the term ‘employees’ [in subsection 538.210.2(3)]
. . . to include [physician employees or] physicians . . . would render as superfluous the use of the term ‘employees’
[in subsection 539.210.2(3)].” Cook, 142 S.W.3d at 892.

                                                          8
amendment is presumed to change the existing law.” Cox v. Dir. of Revenue, 98 S.W.3d 548, 550

(Mo. banc 2003). “[P]rovisions retained are regarded as a continuation of the former law, while

those omitted are treated as repealed.” State ex rel. Klein v. Hughes, 173 S.W.2d 877, 880 (Mo.

1943); Peters v. Treasurer of Mo., 404 S.W.3d 322, 325 (Mo. App. E.D. 2012). Thus, we cannot

simply “add [the] words [“physician employee”] to [the] statute under the auspice of statutory

construction.” Sw. Bell Yellow Pages, Inc. v. Dir. Of Revenue, 94 S.W.3d 388, 390 (Mo. banc

2002); see Comm. for Educ. Equal. v. State, 294 S.W.3d 477, 488 (Mo. banc 2009) (“Legislative

acts are entitled to deference, and this Court must give these acts any reasonable construction to

avoid nullifying them.”).

       Rather, we adhere to the plain language of section 538.210.2(3), because “[t]he

legislature is presumed to have intended what the law states directly,” Metro Auto Auction, 707

S.W.2d at 404, and courts should “give effect to statutes as they are written,” McDermott, 934

S.W.2d at 287. The plain language of section 538.210.2(3) provides that the Jeffersons’ suit is

barred only if Dr. Mosher is not MBMC’s “employee.” Therefore, we do not interpret the term

“employee” in section 538.210.2(3) to mean a “physician employee” as defined in section

538.205(9).

       B. The Definition of the Term “Employee” in Section 538.210.2(3)

       As we have explained, section 538.210.2(3) bars the Jeffersons’ claim if Dr. Mosher is

not MBMC’s “employee.” Because the legislature provided no definition of the term “employee”

for the purposes of section 538.210.2(3), we must define that term here. We first address why the

Jeffersons are correct that the term “employee” should be defined according to common-law

principles of agency and discuss how those principles are applied. Second, we address MBMC’s




                                                9
misapprehension that the legislature’s use of the term “employee” precludes reference to the law

of agency.

       It is a familiar rule of construction that “[w]here a statute uses words that have a definite

and well-known meaning at common law, it will be presumed that the terms are used in the sense

in which they were understood at common law . . . .” State ex rel. Auto Owners Ins. Co. v.

Messina, 331 S.W.3d 662, 665 (Mo. banc 2011) (quoting Belcher v. State, 299 S.W.3d 294, 296

(Mo. banc 2009)). The Restatement (Third) of Agency defines the term “employee” as “an agent

whose principal controls or has the right to control the manner and means of the agent’s

performance of work.” Restatement (Third) of Agency section 7.07(3)(a) (emphasis added)

(referencing respondeat superior); accord Restatement (Second) of Agency section 220(1)

(1958) (“A servant is a person employed to perform services in the affairs of another and who

with respect to the physical conduct in the performance of the services is subject to the other’s

control or right to control.” (emphasis added)); cf. Restatement (Third) of Agency: Intro. (2006)

(“The subject matter of this Restatement [is] the common law of agency . . . .”).

       Missouri courts also frequently observe that “[a]bsent a statutory definition, words used

in statutes are given their plain and ordinary meaning with help, as needed, from the dictionary.”

Balloons Over the Rainbow, Inc. v. Dir. of Revenue, 427 S.W.3d 815, 825 (Mo. banc 2014)

(quoting Am. Healthcare Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999)).

Black’s Law Dictionary defines the term “employee” as “[a] person who works in the service of

another person (the employer) under an express or implied contract of hire, under which the

employer has the right to control the details of work performance.” Black’s Law Dictionary 602

(9th ed. 2009). Thus, the dictionary definition of “employee” is consistent with the Restatement

in its emphasis on the employer’s right to control.



                                                10
       This focus on the principal’s right to control is consistent with other areas of Missouri

law where a test for the presence of an employment relationship is germane. Regarding

employment security for instance, the legislature provided in section 288.034(5), R.S.Mo. (Cum.

Supp. 2011), that the question of whether an individual is an employee, as opposed to a non-

employee independent contractor, should be determined according to “the common law of

agency right to control.” Likewise, in the context of common-law tort liability, Missouri courts

have continually used the extent of the principal’s control over the agent’s work performance as

a measure of whether an employment relationship exists. See Sakabu v. Regency Constr. Co.,

392 S.W.3d 494, 498 (Mo. App. E.D. 2012) (“Employees and independent contractors are

distinguished primarily on the basis of the amount of control the alleged employer has over

them.”); Bargfrede v. Am. Income Life Ins. Co., 21 S.W.3d 157, 162 (Mo. App. W.D. 2000)

(distinguishing independent contractor from employee based on the employer’s “right or power

to control and direct the physical conduct of the [employee or agent] in the performance of the

act”); Scott v. SSM Healthcare St. Louis, 70 S.W.3d 560, 566-67 (Mo. App. E.D. 2002) (“In the

context of a hospital-physician relationship, the primary focus is on whether the hospital

generally controlled, or had the right to control, the conduct of the doctor in his work performed

at the hospital.”); Sloan v. Bankers Life & Cas. Co., 1 S.W.3d 555, 562 (Mo. App. W.D. 1999)

(same); Carter v. Wright, 949 S.W.2d 157, 158 (Mo. App. W.D. 1997) (same).

       Both the Restatement and Missouri case law provide guidelines for determining whether

a sufficient degree of control exists for the establishment of an employment relationship. The

Restatement (Third) of Agency counsels that numerous “factual indicia” are relevant to

determining whether an agent who does work at the behest of a principal is an “employee,”

including:



                                               11
        [1] the extent of control that the agent and the principal have agreed the principal
        may exercise over details of the work [and the extent of control exercised in
        practice]; [2] whether the agent is engaged in a distinct occupation or business;
        [3] whether the type of work done by the agent is customarily done under a
        principal’s direction or without supervision; [4] the skill required in the agent’s
        occupation; [5] whether the agent or the principal supplies the tools and other
        instrumentalities required for the work and the place in which to perform it; [6]
        the length of time during which the agent is engaged by a principal; [7] whether
        the agent is paid by the job or by the time worked; [8] whether the agent’s work is
        part of the principal’s regular business; [9] whether the principal and the agent
        believe that they are creating an employment relationship; [10] and whether the
        principal is or is not in business.

Restatement (Third) of Agency section 7.07 cmt. f; cf. Restatement (Third) of Agency section

7.07 rep. n. f (“[Some s]tatutes . . . explicitly adopt the common-law test articulated in this

section to determine whether a person should be characterized as an employee for purposes of

the statute . . . . Many cases apply the specific criteria mentioned in the Comment . . . .”).

Likewise, prior Missouri courts have adopted the equivalent list of criteria from the 1958 version

of the Restatement of Agency to help identify an employer-employee or master-servant

relationship. 9 These factors include:

        (a) the extent of control which, by the agreement, the master may exercise over
        the details of the work; (b) whether or not the one employed is engaged in a
        distinct occupation or business; (c) the kind of occupation with reference to
        whether, in the locality, the work is usually done under the direction of the
        employer or by a specialist without supervision; (d) the skill required in the
        particular occupation; (e) whether the employer or the workman supplies the
        instrumentalities, tools, and the place of work for the person doing the work; (f)
        the length of time for which the person is employed; (g) the method of payment,
        whether by the time or by the job; (h) whether or not the work is a part of the
        regular business of the employer; (i) whether or not the parties believe they are
        creating the relationship of master and servant; and (j) whether the principal is or
        is not in business.10

        9
            In this context, the master-servant relationship is synonymous with the employer-employee relationship.
See Restatement (Second) of Agency section 220 cmt. g (1958) (“[I]n statutes dealing with various aspects of the
relation between the [master and servant], the word ‘employee’ has largely displaced ‘servant.’ In general, this word
is synonymous with servant.”); Bargfrede, 21 S.W.3d at 161 n.5 (noting interchangeable use of terms “servant” and
“employee”).
          10
             Because the factors stated in the Restatement (Third) and the Restatement (Second) are substantially
consistent, we need not endorse one over the other. Rather, we view the list in the Restatement (Third) simply as a
more recent iteration of the same basic principle explained in the earlier version.

                                                        12
Lee v. Pulitzer Publ’g Co., 81 S.W.3d 625, 631 (Mo. App. E.D. 2002) (quoting Restatement

(Second) of Agency section 220(2) (1958)); Sakabu, 392 S.W.3d at 498 (same); Keller v. Mo.

Baptist Hosp., 800 S.W.2d 35, 38 (Mo. App. E.D. 1990) (same). No single Restatement factor is

dispositive. Restatement (Second) of Agency section 220 cmt. c (1958).

          In applying the foregoing Restatement factors, the central rule is that the more control the

principal may exercise over the agent, the more likely the agent is an employee. Bargfrede, 21

S.W.3d at 162; see also Scott, 70 S.W.3d at 566-67 (“In the context of a hospital-physician

relationship, the primary focus is on whether the hospital generally controlled, or had the right to

control, the conduct of the doctor in his work performed at the hospital.”). However, it is not a

matter of “whether [the principal] actually exercised control over the work . . . [but a matter of]

whether [the principal] had the right to exercise that control.” Bargfrede, 21 S.W.3d at 162

(second alteration in original) (quoting Carter v. Wright, 949 S.W.2d 157, 160 (Mo. App. W.D.

1997)).

          As to each of the individual Restatement factors, we observe that the following facts

would indicate that an employment relationship does exist:

          [1] an agreement for close supervision or de facto close supervision of the
          [agent’s] work; [2] work which does not require the services of one highly
          educated or skilled; [3] the supplying of tools by the [principal]; [4] payment by
          hour or month; [5] [working] over a considerable period of time with regular
          hours; [6] full time [work for one principal]; [7] [work] in a specific area or over a
          fixed route; [8] the fact that the work is part of the regular business of the
          [principal]; [9] the fact that the community regards those doing such work as
          [employees]; [10] the belief by the parties that there is a [employer] and
          [employee] relation; [11] an agreement that the work cannot be delegated.

Restatement (Second) of Agency section 220 cmt. h (1958).




                                                   13
        Furthermore, an employer’s right to control may be attenuated, and an employee may

have a significant degree of discretion in her work. 11 Restatement (Third) of Agency section 7.07

cmt. f. Importantly here, “Missouri courts have long recognized that physicians must be free to

exercise independent medical judgment.” Scott, 70 S.W.3d at 568. “The mere fact that a

physician retains such independent judgment will not preclude a court, in an otherwise proper

case, from finding the existence of an employer-employee . . . relationship between a hospital

and physician.” Id. A physician should not be deemed a non-employee agent “merely because

the hospital does not have the right to stand over the [physician’s] shoulder and dictate to him or

her how to diagnose and treat patients.” Id.

        Despite the foregoing authority, MBMC contends that we may not reference “the

common law of agency,” because the terms “agent” and “employee” are not synonymous. While

it is true that these terms are not synonymous, MBMC misapprehends the import of this fact.

        An employee is a subset of agent distinguished by the principal’s right to control the

details of the employee’s work performance. See Restatement (Third) of Agency section 7.07

cmt. f (2006) (An “agent[ is] . . . not [an] employee[] [if she] retain[s] the right to control how

[she] perform[s her] work.”). In particular, this distinction gains significance in light of the

different theories of principal-agent liability, e.g., direct or vicarious, applicable to non-employee

agents and employee agents respectively. See Restatement (Third) of Agency section 703, 703


        11
            The Restatement (Third) of Agency provides the following example of an attenuated employment
relationship:
         A, the CEO of P Corporation, exercises general managerial authority over its operations. P
         Corporation’s directors, concerned that A’s impaired vision makes it unsafe for A to drive, direct
         A to use a driver and car to be furnished by P Corporation when A travels by car on business. P
         Corporation’s directors have the right so to direct A. A is an employee of P Corporation for this
         purpose.
Restatement (Third) of Agency § 7.07 cmt. f, illus. 15 (2006); see also Keller v. Mo. Baptist Hosp. of Sullivan, 800
S.W.2d 35, 38 (Mo. App. E.D. 1990) (“In some types of cases which involve persons customarily considered as
servants, there may even be an understanding that the employer shall not exercise control.” (quoting Restatement
(Second) of Agency section 220 cmt. d (1958))).

                                                        14
cmt b. (2006) (noting generally that “direct liability [for, inter alia, a non-employee agent’s

conduct] requires fault on the part of the principal whereas vicarious liability [for, inter alia, an

employee agent’s conduct] does not require that the principal be at fault”). Therefore, as MBMC

suggests, it is reasonable to conclude that when the legislature used the term “employee” in

section 538.210.2(3), it did not mean to include all individuals who might be classified as

“agents” in the broadest sense of that term.

       Contrary to MBMC’s contention, however, the legislature’s failure to use the terms

“agent” or “agency” in section 538.210.2(3) does not indicate that it intended to ban all reference

to “the common law of agency” in determining whether an employment relationship exists.

Missouri courts have long referred to the Restatement of Agency when asked to determine

whether an employment relationship exists. See, e.g., Barnes v. Real Silk Hosiery Mills, 108

S.W.2d 58, 61-62 (Mo. 1937). In fact, they often use the words “agent” and “employee”

interchangeably in that context. See, e.g., Scott, 70 S.W.3d 560, 566-67 (using term “agent” in

place of “employee” or “servant” in context of respondeat superior, but affirming that “the

primary focus is on whether the hospital generally controlled, or had the right to control, the

conduct of the doctor in his work performed at the hospital.”); see also Parshall v. Buetzer, 195

S.W.3d 515, 519 n.5 (Mo. App. W.D. 2006) (discussing “potentially misleading assertion in

Missouri case law” regarding use of term “agent”). Thus, the technical distinction between an

“agent” and an “employee” is of relatively minor significance here, and the question of whether

Dr. Mosher is MBMC’s “employee” within the meaning of section 538.210.2(3) should be

determined by reference to common-law principles of agency.




                                                 15
                                      V. CONCLUSION

       The trial court erred as a matter of law when it determined section 538.210.2(3) barred

the Jeffersons’ claim because Dr. Mosher did not meet section 538.205(9)’s definition of

“physician employee.” We reverse the trial court’s grant of summary judgment. We remand to

the trial court with instructions to apply, in further proceedings, the definition of the term

“employee” in section 538.210.2(3) in a manner consistent with this opinion.



                                            ______________________________
                                            Lisa S. Van Amburg, Presiding Judge

Patricia L. Cohen.J., and
Philip M. Hess, J., concur.




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