author: MICHAEL A. WOLFF, Judge. RICHARD B. TEITELMAN, Judge,

text:
    Mark M. TENDAI, M.D., Appellant, v. MISSOURI STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Respondent.
    No. SC 86110.
    Supreme Court of Missouri, En Banc.
    April 5, 2005.

      Johnny K. Richardson, Jefferson City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jane A. Rackers, Asst. Atty. Gen., Jefferson City, Glenn E. Bradford, Edward F. Walsh, IV, Kansas City, MO, for Respondent.
   MICHAEL A. WOLFF, Judge.

This physician disciplinary action arose from Dr. Mark Tendai’s care of S.G., an 18-year-old woman pregnant with her second child in 1992. The tragic outcome of her pregnancy was the delivery of a stillborn child with the umbilical cord wrapped around the baby’s neck.

The Missouri State Board of Registration for the Healing Arts filed two complaints with the Administrative Hearing Commission seeking to discipline Dr. Ten-dai, a Springfield physician specializing in obstetrics and gynecology, based on his treatment of S.G. and another obstetrical patient, J.W. The commission determined that Dr. Tendai was not subject to discipline for his treatment of J.W. As to S.G., the commission concluded that there was cause for discipline under section 334.100.2(5) for “gross negligence,” “repeated negligence,” “incompetency,” and “conduct harmful to a patient.”

After the commission’s decision, the board imposed discipline that included a 60-day suspension from medical practice, a ban from the practice of obstetrics and a requirement that Dr. Tendai attend a eourse on medical documentation. Dr. Tendai appealed to the circuit court of Cole County, which entered judgment upholding the commission’s decision and the board’s discipline.

On appeal to this Court, Dr. Tendai raises numerous challenges to the statute under which he was disciplined, to the healing arts board’s procedures and to the alleged disparity of treatment in the disciplinary process. Resolution of this appeal, however, involves principally the task of applying the disciplinary statute, in its plain and ordinary meaning, to the facts of this case and determining whether there was substantial evidence to support the commission’s decision.

This Court concludes that the commission’s decision under the disciplinary statute is not supported by substantial evidence in the record as a whole. The judgment is reversed.

Facts and Procedural History

S.G., 18 years old and pregnant with her second child in 1992, made 13 visits to Dr. Tendai’s office between April and November 1992. During S.G.’s first visit, Dr. Tendai determined that S.G.’s due date was approximately November 27, 1992. During her periodic visits with Dr. Tendai, her pregnancy appeared to be normal until October 1992.

On October 16, 1992, Dr. Tendai first became concerned that S.G.’s unborn baby was not growing adequately. Dr. Tendai suspected that the fetus had developed intrauterine growth retardation (IUGR), which would cause the fetus to stop growing. He testified that he discussed IUGR with S.G. and recommended that S.G. see a perinatologist, a physician specializing in late pregnancy complications. Dr. Tendai testified that S.G. “panicked” and refused to see a perinatologist. He also testified that he was unsure whether he observed a normal three-vessel umbilical cord or an abnormal two-vessel cord. A two-vessel cord is associated with birth defects. Dr. Tendai produced a “sticky note” dated October 16 that reflected that he was aware that S.G.’s fetus might have a two-vessel cord; however, the flow chart completed by the doctor’s office nurse after the October 16 visit indicates a three-vessel cord.

When the healing arts board’s investigator obtained Dr. Tendai’s office records for S.G., there was no reference to the doctor having referred S.G. to a perinatologist. Later, however, Dr. Tendai produced a “sticky note” dated October 16 that states that S.G. refused his advice to consult with a perinatologist.

S.G. testified that Dr. Tendai never told her she had IUGR, but that his nurse told her that she did and that the doctor probably would discuss it with her. S.G. testified that Dr. Tendai told her the fetus was smaller than it should have been and that he was adjusting S.G.’s due date to early December 1992 for that reason. S.G. felt that Dr. Tendai would have discussed this in more detail with her if he had thought it was a serious problem. S.G. testified that Dr. Tendai never referred S.G. to a perina-tologist or suggested that S.G. have any additional testing.

When Dr. Tendai saw S.G. again on November 2,1992, the fetus had not grown since the prior visit. This strengthened his belief that the fetus had IUGR. At the doctor’s request, S.G. went to the hospital for an ultrasound. The ultrasound confirmed Dr. Tendai’s diagnosis of IUGR and also confirmed a two-vessel umbilical cord. During the ultrasound, S.G. was told that her fetus weighed approximately three pounds and that it would be up to Dr. Tendai whether he would continue to monitor S.G. or send her to a specialist.

Based on the testimony of expert witnesses, the hearing commission found that the proper treatment for IUGR was amniocentesis and non-stress testing. These procedures would not make the fetus grow, but could be used to monitor the fetus to determine whether and when birth should be induced or a caesarian section performed. Non-stress testing would determine the fetus’ reaction to certain stimuli and would indicate whether the fetus was receiving adequate oxygen. Amniocentesis would reveal the lung maturity of the fetus to determine whether the baby could survive after delivery. Dr. Tendai did not have equipment to perform either amniocentesis or non-stress testing. Like the majority of obstetricians in Springfield, Dr. Tendai referred patients to a perina-tologist for such services. Dr. Tendai tes-tilled he had concerns about the perinatol-ogist who could provide services to S.G. because he felt that she had a tendency to induce labor too early.

On November 9, 1992, S.G. again visited Dr. Tendai. He testified that he again warned S.G. of IUGR and advised her to see a perinatologist and that S.G. again refused. S.G. testified that Dr. Tendai’s office nurse told her that the ultrasound had confirmed the IUGR diagnosis and that the doctor would discuss it with S.G. in more detail. S.G. testified that Dr. Tendai did not discuss the IUGR with her on November 9 and did not suggest that she see a perinatologist. In response to the healing arts board’s investigation, Dr. Tendai produced a “sticky note” stating that he warned S.G. again on November 9, 1992, that she should see a perinatologist.

Dr. Tendai examined S.G. again on November 16 and 23, 1992; each visit revealed that S.G.’s fetus had not grown. He testified that he warned S.G. on each of these dates that she should see a perinatol-ogist; S.G. testified that Dr. Tendai did not refer her to a specialist. Dr. Tendai testified he did not believe that inducing labor was appropriate because the position of the fetus’ head would make a vaginal delivery dangerous, and the appropriateness of a caesarian birth could not be determined without an amniocentesis.

On November 29, 1992, after feeling no fetal movement for approximately 24 hours, S.G. went to the hospital, was given another ultrasound, and delivered a stillborn female child. The child weighed three pounds, six ounces. The umbilical cord was wrapped tightly around the child’s neck. An autopsy report concluded that the cause of death was “most likely due to the combined effects of a tight nuchal cord [i.e., around the neck] and severe chronic villitis [an inflammation] of unknown etiology involving the placenta with associated fetal growth retardation. Other findings included a two-vessel umbilical cord. Although the two-vessel umbilical cords are associated with an increased incidence of fetal congenital malformations, no other congenital malformations are identified. The manner of death is natural.” Tests conducted after the delivery revealed that S.G. had cytomagalic virus, an infection that may be associated with IUGR, but the evidence did not establish whether the virus was a cause of the growth retardation.

S.G. filed a complaint with the healing arts board, which assigned one of its investigators to investigate S.G.’s charges. When the board’s investigator interviewed Dr. Tendai in April 1993, Dr. Tendai did not state that he had referred S.G. to a perinatologist. Rather, he said that he was concerned about the baby’s lung maturity and did not want to refer S.G. to a perinatologist who would try to deliver the baby early. Dr. Tendai did not tell the investigator that S.G. had ignored his advice. He gave the board’s investigator copies of his office records relating to S.G. No sticky notes were included. The sticky notes relating to S.G. were not in S.G.’s file; Dr. Tendai provided the sticky notes when he met with the board at a later time. The only documentation of Dr. Ten-dai’s alleged referrals of S.G. to a perina-tologist were in the sticky notes. The commission concluded that Dr. Tendai had not referred S.G. to a perinatologist.

According to Dr. Tendai’s office manager, the doctor routinely used sticky notes to write personal, non-medical information about his patients. The information put on the notes was that which the doctor wished to have for personal reference later, but which he did not want to be copied and sent to the hospital as part of the patient’s medical records.

During its investigation, the board requested that Dr. James S. Johnson, M.D., an obstetrician, review the medical records relating to S.G. In July 1993, Dr. Johnson completed a written report determining that several conditions, especially the umbilical cord wrapped around the neck, contributed to the baby’s death and that Dr. Tendai had not been negligent in his care of S.G. Dr. Johnson testified that IUGR is often fatal or results in severe birth defects.

Around the time that she filed her complaint with the board, S.G. contacted a Springfield attorney to pursue a malpractice civil lawsuit. That attorney declined to represent S.G., but gave her the name of Dr. William Cameron, a Kansas obstetrician. S.G. then contacted Dr. Cameron requesting that he review her medical records and determine whether he believed Dr. Tendai had committed malpractice. After reviewing the medical records, Dr. Cameron referred S.G. to another attorney in Springfield.

The healing arts board presented a deposition of Dr. Cameron, S.G.’s malpractice expert, at the hearing. Dr. Cameron determined that S.G.’s baby’s death was “preventable” and that, given proper monitoring by Dr. Tendai, the baby could have been delivered by caesarian section at an appropriate time before suffering fetal death. Dr. Cameron testified that babies with IUGR were usually able to catch up to their peers within six months of birth.

Once the diagnosis of IUGR was made, Dr. Cameron testified that the proper treatment would require bi-weekly monitoring and non-stress testing to monitor the fetus’ heart activity. Dr. Cameron believed that Dr. Tendai’s failure to take these steps violated the standard of care. Dr. Cameron did not believe that Dr. Ten-dai violated the standard of care before November 2, 1992; it was only after the ultrasound confirmed IUGR that Dr. Cameron felt Dr. Tendai did not take appropriate action.

Dr. Cameron testified that, if Dr. Tendai had referred S.G. to a perinatologist, such referral would have been appropriate to satisfy the standard of care. However, if no such referral was made, Dr. Tendai was required to monitor S.G. himself through non-stress tests.

Dr. Cameron testified that the failure to monitor S.G.’s condition properly violated the standard of care and constituted negligence. He was not asked and did not testify that Dr. Tendai’s conduct was gross negligence. Nor did Dr. Cameron testify that he believed Dr. Tendai to be incompetent to act as a physician.

Dr. William Griffin, M.D., a professor of obstetrics and gynecology at the University of Missouri, was called by Dr. Tendai and testified that, to a reasonable degree of medical certainty, the cause of death was “a combination of factors,” with the “terminal event” being strangulation by the umbilical cord. Dr. Griffin testified that, once IUGR was diagnosed, the monitoring Dr. Tendai performed was not adequate. Dr. Griffin testified that the proper procedure would have been to do non-stress testing to determine whether the fetus was getting enough oxygen. If the testing indicated that the fetus was not properly oxygenated, then an amniocentesis should have been performed to determine whether the fetus was mature enough to be delivered. Dr. Griffin testified that referring S.G. to a perinatologist would meet the standard of care, but that a failure to discuss IUGR with S.G. would violate the standard of care. As with Dr. Cameron, Dr. Griffin did not testify that Dr. Tendai was grossly negligent or that he was incompetent to act as a physician.

The hearing commission concluded that Dr. Tendai had not referred S.G. to a perinatologist, that he had not properly monitored S.G.’s pregnancy to determine when the birth could have been induced, and that such failure violated the standard of care.

The commission determined that this violation of the standard of care constituted “gross negligence,” “repeated negligence,” “incompetence,” and “conduct harmful to the health of a patient” — which are among the grounds for professional discipline under the statute, section 334.100.2(5).

Following the commission’s decision, the healing arts board held a disciplinary hearing in April 2000. Dr. Tendai presented 80 previous disciplinary decisions of the board, which he believed to be factually similar, in which the board imposed either minor discipline or no discipline. The board’s deliberations were conducted in closed session and were not recorded.

The board by order in May 2000 publicly reprimanded Dr. Tendai, suspended his license for 60 days, prohibited him from practicing obstetrics or doing obstetrical procedures, and required him to attend a medical documentation course.

Dr. Tendai appealed the board’s disciplinary order to the circuit court of Cole County, which stayed the enforcement of the disciplinary order. In May 2001, the circuit court upheld the commission’s findings of fact and conclusions of law and the board’s discipline but did not rule on Dr. Tendai’s equal protection claim regarding disparate disciplinary treatment.

Dr. Tendai then appealed to this Court in July 2001. This Court dismissed the appeal because the circuit court’s judgment did not finally dispose of all issues. 77 S.W.3d 1 (Mo. banc 2002). The circuit court then remanded the case to the healing arts board, ordering it to make findings on the facts related to the equal protection claim. The board sought a writ of prohibition, arguing that the circuit court could not order the board to make factual findings on the equal protection claim. This Court issued its writ of prohibition in December 2003 and directed the circuit court to make factual findings on the equal protection claim. 121 S.W.3d 234 (Mo. banc 2003). The circuit court entered its judgment in June 2004, making specific findings and concluding that. Dr. Tendai’s equal protection rights were not violated. The circuit court affirmed the commission’s decision and the board’s discipline.

This appeal followed. This Court has jurisdiction because Dr. Tendai challenges the validity of a statute. Mo. Const, art. V, section 3.

Standard of Review

The Board of Registration for the Healing Arts investigates complaints against physicians and. other licensed professionals; when the board decides to proceed, it files complaints with an independent body, the Administrative Hearing Commission, which hears the case and enters its findings of fact and conclusions of law. If the commission finds cause to discipline a physician, the board then decides on the appropriate discipline, which is the final stage of the administrative process. Judicial review of the administrative decision is available, starting with the circuit court.

This Court reviews the decisions of the hearing commission and the board, not the circuit court. Mo. Coalition for the Environment v. Herrmann, 142 S.W.3d 700, 701 (Mo. banc 2004); State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003). Factual findings are reviewed to determine whether they are supported by substantial evidence. Bruemmer v. Mo. Dept. of Labor Relations, 997 S.W.2d 112, 115-16 (Mo.App.1999). When the commission has interpreted the law or the application of facts to law, the review is de novo. McDonagh, 123 S.W.3d at 152. The record is reviewed in the light most favorable to the commission’s factual findings. Men-delsohn v. State Bd. of Registration for the Healing Arts, 3 S.W.3d 783, 786-87 (Mo. banc 1999).

In this case, the hearing commission labeled its determinations that Dr. Tendai committed gross negligence, repeated negligence, and conduct harmful to a patient and that he was incompetent as “conclusions of law.” To the extent that these “conclusions of law” contain statements of fact or ultimate fact, the Court defers to the commission as fact finder if the conclusions are supported by competent and substantial evidence when considering the record as a whole. Section 536.140.2, RSMo 2000; McDonagh, 123 S.W.3d at 152.

Dr. Tendai’s Contentions

Dr. Tendai argues that; (1) section 334.100.2(5) is unconstitutionally vague, (2) his procedural due process rights were violated by the hearing commission’s findings that he was subject to discipline, (3) repeated negligence cannot result from the treatment of a single patient for a single condition, (4) there was insufficient evidence to support the commission’s determinations that he demonstrated incompetence, gross negligence, repeated negligence, and conduct harmful to a patient, (5) the board imposed disproportionately severe discipline in violation of the Equal Protection Clause, and (6) the board’s disciplinary order was arbitrary, capricious, unreasonable, made upon unlawful procedure, and unsupported by competent and substantial evidence.

Sufficiency of the Evidence

Because the commission’s conclusions that there was cause to discipline Dr. Tendai’s license were not supported by substantial evidence, the Court need not reach his other claims.

The commission concluded that Dr. Tendai violated the applicable standard of care in his treatment of S.G. and that this violation constituted gross negligence, repeated negligence, incompetence, and conduct harmful to a patient. Before examining each of these statutory grounds for discipline, the state of the medical record is considered. The medical record issue is whether Dr. Tendai’s “sticky notes” are records that support his assertion that he referred S.G. to a perinatologist.

The hearing commission gave no weight to Dr. Tendai’s testimony and to his “sticky notes” that were provided after the healing arts board’s initial investigation into his conduct.

The commission indicated in a footnote that there was evidence that Dr. Tendai’s sticky notes were falsified. In the words of the commission, the notes “appear to have been written after the fact.” Although falsification of records was not before the commission as a cause for discipline, the commission did resolve the credibility issue in the board’s favor by refusing to believe Dr. Tendai’s account of his treatment. This issue of credibility is for the commission. See Lagud v. Kansas City Bd. of Police Com’rs, 136 S.W.3d 786, 796 (Mo. banc 2004).

Regardless of whether the commission believed that the sticky notes were subsequently produced falsifications, the commission was correct in excluding the notes from consideration because they are not proper medical records.

Medical records relating to observations, treatment, and diagnoses are generally admissible as business records. Long v. St. John’s Regional Health Ctr., Inc., 98 S.W.3d 601, 607 (Mo.App.2003); Capies v. Earthgrains Co., 43 S.W.3d 444, 452 (Mo.App.2001). The admissibility of business records in a professional licensing case before the commission is governed by section 536.070(10), RSMo 2000, which provides that a record is admissible “if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.”

Even if the notes, from the outset of the investigation, had been found with the regular medical record, the notes contained information that Dr. Tendai said he did not intend to transfer to another physician or hospital for use in S.G.’s care. Medical records are considered trustworthy because they are made for the purpose of documenting a patient’s treatment and conditions for future reference. Although Dr. Tendai said that he made the sticky notes for his later reference, the fact that the notes were not intended to be included in S.G.’s regular records and relied upon by other health care providers undermines their credibility. “Regular course of business” is defined by considering “the inherent nature of the business in question and ... the methods systematically employed for the conduct of the business as a business.” Palmer v. Hoffman, 318 U.S. 109, 115, 63 S.Ct. 477, 87 L.Ed. 645 (U.S.1943). Since they do not qualify as business records, the sticky notes are hearsay. See Kitchen v. Wilson, 335 S.W.2d 38, 43 (Mo.1960).

With the sticky notes properly excluded as medical record documentation, the factual issue was whether to believe Dr. Tendai or S.G. The hearing commission believed S.G., and her testimony is substantial and competent evidence to support the factual determination that Dr. Tendai did not refer S.G. to a perinatologist.

Gross negligence

The commission concluded that Dr. Tendai committed gross negligence in his treatment of S.G. “Gross negligence” is not defined in section 334.100.2(5). When a term is undefined, the legislature is presumed to intend that the term be used in its plain and ordinary meaning according to the dictionary. Asbury v. Lombardi 846 S.W.2d 196, 201 (Mo. banc 1993). Random Hodse Webster’s Dictionary (1997) defines “gross” as “flagrant and extreme; glaring,” and “negligence” as “1. the quality, fact, or result of being negligent; neglect. 2. an instance of being negligent. 3. the failure to exercise a reasonable degree of care, especially for the protection of other persons.”

This Court has not defined “gross negligence” in the professional licensing context. The commission considered “gross negligence” to be “an act or course of conduct which demonstrates a conscious indifference to a professional duty that constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” See Duncan v. Mo. Bd. for Architects, Prof. Engineers and Land Surveyors, 744 5.W.2d 524, 583 (Mo.App.1988). The commission’s definition is correct.

The first step in determining whether gross negligence exists is to determine the applicable standard of care for ordinary negligence. The next step is to determine whether there was evidence of a gross violation of the standard. When the standard of care involves matters outside the competence and understanding of ordinary lay witnesses, it must be established by expert witness testimony. Haase v. Garfinkel, 418 S.W.2d 108, 118 (Mo.1967); Swope v. Printz, 468 S.W.2d 34, 39 (Mo. 1971). “The appropriate standard of care is a question of law.” Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 158 (Mo. banc 2000). As to the standard of care, this Court’s review is de novo.

The applicable standard of care, for ordinary negligence, is what the normal member of Dr. Tendai’s profession would have done when treating a patient with IUGR under similar circumstances. See State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 159 (Mo. banc 2003). Dr. Cameron testified that his definition of the standard that Dr. Tendai violated was “the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of this profession,” which is a definition of ordinary negligence. Dr. Cameron testified that the standard of care for treatment of IUGR requires biweekly monitoring and non-stress testing. Dr. Tendai violated that standard of care by his failure to procure this testing for S.G., Dr. Cameron testified.

There is a wide difference between “ordinary negligence” and “gross negligence.” Not every deviation from a profession’s standard of care is gross negligence — professionals make mistakes that neither show conscious indifference to their duties nor gross deviations from their profession’s standards. There was nothing in Dr. Cameron’s testimony to support a conclusion that Dr. Tendai’s conduct showed conscious indifference to his professional duty or otherwise grossly violated the standard of care.

It is particularly difficult to infer gross negligence where there is a dispute in the record between members of the profession as to whether the physician’s conduct was negligent at all. Dr. Johnson, the obstetrician who first reviewed the records for the healing arts board, submitted his written opinion that Dr. Tendai was not negligent in his treatment of S.G. Moreover, Dr. Johnson would not even testily that failure to refer S.G. to a perinatologist was below the standard of care.

Dr. Griffin’s testimony on Dr. Tendai’s behalf, when construed most favorably to the hearing commission’s decision, might support a finding of ordinary negligence because he testified that Dr. Tendai’s monitoring of S.G. was not “adequate.” But Dr. Griffin did not testify that Dr. Tendai’s conduct violated the standard of care, that it was negligent, or that it was grossly negligent.

Ordinary negligence, in a medical malpractice case, is the failure to use the skill and learning that would ordinarily be used by a member of the defendant’s profession in similar circumstances. Meyer v. Lockard, 118 S.W.3d 245, 250 (Mo.App.2003); MAI Instruction 11.06. Taken in the light most favorable to the commission’s decision, the evidence from the expert witnesses was that Dr. Tendai failed to use the skill and learning that would normally be used by a member of his profession in similar circumstances by failing to refer S.G. to a perinatologist or by conducting the monitoring himself.

The healing arts board presented evidence that Dr. Tendai was negligent. The board, however, does not have authority to discipline for ordinary negligence; it may only do so for repeated negligence or gross negligence. Section 334.100.2(5).

To demonstrate that a physician has committed gross negligence, the board must show that the physician engaged in a gross deviation from the standard of care. Expert testimony is needed to establish this point, since it is beyond the purview of ordinary lay witnesses. None of the expert witnesses in this case testified that Dr. Tendai showed a gross failure to use the skill and learning ordinarily used by members of the same profession. The board’s strongest witness, Dr. Cameron, only testified that Dr. Tendai had violated the standard of care — not that he had grossly violated the standard of care. Dr. Johnson, the board’s initial reviewer, did not believe that Dr. Tendai was negligent at all. Dr. Griffin failed to articulate a standard of care and did not testify that Dr. Tendai grossly violated any standard or was grossly negligent or, even, for that matter, negligent.

Accordingly, there was no evidence to support the commission’s conclusion that Dr. Tendai had committed gross negligence.

Repeated negligence

The commission concluded that Dr. Tendai committed repeated negligence in his treatment of S.G. This conclusion was based on the fact that, during each of S.G.’s visits on November 2, November 9, November 16, and November 23, Dr. Ten-dai knew of S.G.’s IUGR and did not to refer S.G. to a perinatologist or undertake the proper testing himself.

Dr. Tendai argues that repeated negligence cannot be based on a doctor’s conduct toward one patient, but rather requires independent negligent acts committed toward more than one patient. The commission concluded that there was negligence only as to S.G.

The logic of Dr. Tendai’s position is similar to that for interpreting an act or acts of “gross negligence” as being something categorically different than ordinary negligence. By making “repeated negligence” a cause for discipline, the statute requires that the conduct show, by multiple acts, that the licensee is deficient in a generalized way and that disciplinary action is needed to protect the public.

There is no need, however, to reach Dr. Tendai’s broad argument that “repeated negligence” cannot be found as to a single patient. While there were three office visits after November 2, they all followed a single treatment decision—not to refer the patient to a perinatologist. Dr. Tendai’s only negligent act or conduct was his decision to monitor S.G. by follow-up visits rather than to order further testing. Dr. Cameron’s opinion that Dr. Tendai violated the standard of care was based on Dr. Tendai’s failure to refer S.G. to a perina-tologist or conduct the proper monitoring himself after November 2. Considering only the evidence that Dr. Tendai did not refer S.G. to a perinatologist—and discounting his testimony that he did so refer the patient—Dr. Tendai only made one negligent decision, the decision not to refer S.G. to a perinatologist. During S.G.’s subsequent visits after the November 2 decision, the doctor merely adhered to the decision he had previously made.

In the context of a disciplinary proceeding, to consider each of these three visits after November 2 to be a separate act of negligence is to engage in bootstrapping. In medical negligence litigation, where a “continuing care” exception is invoked to avoid the statute of limitations, the act of negligence is generally treated as a single act and is not divided into multiple separate acts of negligence, so that the negligence relates back to treatment that may otherwise have occurred before the period of the statute of limitations. See Montgomery v. South County Radiologists, Inc., 49 S.W.3d 191, 194-95 (Mo. banc 2001); Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760, 762 (Mo.1943). Similarly, Dr. Tendai’s actions, all part of the same treatment decision, can only be considered as a single negligent act. The record does not support the commission’s conclusion that Dr. Tendai committed “repeated negligence,” which is the statute’s requirement.

Incompetency

“Incompetency” is not defined in section 334.100.2(5). As with gross negligence, when a term is undefined, the Court looks to its plain and ordinary meaning according to the dictionary. Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993). Random House Webster’s Dictionary (1997) defines “incompetence” as “the quality or state of being incompetent,” and defines “incompetent” as “1. lacking qualification or ability; incapable. 2. characterized by or showing incompetence. 3. not legally qualified.”

The commission considered the meaning of incompetency to be: “a general lack of present ability or lack of disposition to use a present ability to perform a given duty.” That definition is appropriate.

“Incompetency” refers to a state of being. It is clear that incompetency means something different than “gross negligence” or “repeated negligence.” Otherwise, there would be no reason to list “incompetency” in the statute as a separate ground for discipline and “incompetency” would be redundant. “[E]very word in a statute is presumed meaningful.” Gott v. Dir. of Revenue, 5 S.W.3d 155, 158 (Mo. banc 1999). A doctor who is generally competent could commit gross negligence or repeated negligence; thus, “incompetency” must mean something different from these other terms.

Taken in the light most favorable to the commission’s decision, the evidence that Dr. Tendai was incompetent is as follows: He was aware, as of November 2, 1992, that S.G.’s fetus had IUGR and that the fetus had a two-vessel umbilical cord; the standard of care required that an amniocentesis or non-stress testing be completed; Dr. Tendai did not have the equipment to conduct an amniocentesis or non-stress testing; Dr. Tendai was concerned that the only available perinatologist would try to deliver S.G.’s baby too soon; Dr. Tendai did not refer S.G. to a perinatologist, who could conduct the appropriate testing; and Dr. Tendai violated the standard of care by not referring S.G. to a perinatologist. This is evidence of ordinary negligence, but not incompetency.

None of the expert witnesses testified that Dr. Tendai was incompetent. There is no evidence that Dr. Tendai was not legally qualified to practice as a physician. The healing arts board did not present evidence that Dr. Tendai was incapable of practicing medicine or that he lacked the qualities needed for effective action or was unable to function properly as a physician.

Rather, Dr. Tendai made a decision— not to refer S.G. to a perinatologist or to do non-stress testing — which some, but not all, of the expert testimony cited as violating the standard of care. Although the board’s evidence may have been sufficient to support a finding that Dr. Tendai was negligent, a finding of a negligent act — by itself — is not enough to establish incompetency because a competent physician can commit a negligent act.

Conduct harmful to a patient

The healing arts board alleged that Dr. Tendai was subject to discipline pursuant to section 334.100.2(5), which allows discipline for “[a]ny conduct which is or might be harmful or dangerous to the mental or physical health of a patient or the public ... ”. The commission concluded that Dr. Tendai’s conduct was “harmful to the health of the patient,” not that his conduct might or could have been harmful. That is the conclusion presented for review.

To sustain this conclusion, there must be evidence that Dr. Tendai’s conduct caused injury to S.G.’s baby. In this case, the record must contain substantial evidence that Dr. Tendai’s conduct caused or contributed to cause the baby’s death.

Missouri follows the “but for” test of causation in medical negligence cases. Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 862-63 (Mo. banc 1993). Under this test, a physician is found to have caused a harm if the harm would not have occurred “but for” the physician’s negligence. Id. at 861. In the absence of a statutory definition of “harmful to the mental or physical health of a patient,” -the “but for” standard of causation is applicable to this provision of section 334.100.2(5).

The board cannot rely on the mere fact that S.G.’s baby died in útero to support its contentions that Dr. Tendai’s conduct caused the death. See Swope v. Printz, 468 S.W.2d 34, 39 (Mo.1971). S.G.’s baby was born with the umbilical cord wrapped tightly around its neck. The testimony from the expert witnesses indicated that IUGR, in and of itself, would not cause the baby to die; it would only cause the baby to be born smaller than normal. Nor was there any testimony that in útero growth retardation would cause an umbilical cord wrap.

The board’s evidence on causation was equivocal and, thus, insufficient. Dr. Cameron, consulted initially by S.G. for a malpractice lawsuit, testified that he believed the baby’s death was “preventable” if proper monitoring had been done. This is not a statement that Dr. Tendai’s conduct was a “cause” of harm to the baby. If it could be interpreted as causation, it is equally likely to be a statement merely of timing — that is, if the baby had been delivered before fetal demise the death would have been prevented. This “preventable” theory of causation is too attenuated to impose liability on a doctor for negligence or malpractice, Callahan, 863 S.W.2d at 865, and is likewise insufficient in a discipline case. There is nothing in the testimony of the case to suggest that the fatal cord wrap was anything more than a tragic accident that occurred shortly before the baby was delivered. There is not a single expert statement that, to a reasonable degree of medical certainty, Dr. Tendai’s conduct caused harm to the baby.

To the contrary, the record as a whole negates a causal link between Dr. Tendai’s conduct and the harm to the baby. Dr. Johnson believed the baby’s death was caused by strangulation by the umbilical cord and that Dr. Tendai was not negligent. The autopsy supports this position. Dr. Johnson also testified that IUGR would not, in and of itself, have caused fetal death. Similarly, Dr. Griffin testified that the “terminal event” was strangulation by the umbilical cord. None of the expert witnesses was able to testify with a reasonable degree of medical certainty that IUGR — and not strangulation by the cord — caused the death. The board did not prove the suggested monitoring would have prevented strangulation by the umbilical cord.

Since the board did not prove causation, the commission’s conclusion that Dr. Ten-dai committed conduct harmful to a patient is not supported by substantial evidence and must be reversed.

Conclusion

The central question necessary to decide this appeal is whether there was substantial evidence to support the commission’s conclusions that Dr. Tendai’s conduct constituted “gross negligence,” “repeated negligence,” or “conduct harmful to a patient,” or that Dr. Tendai was incompetent. A careful review of the record before the commission shows that the commission’s conclusions that Dr. Tendai was subject to discipline under section 334.100.2(5) were not supported by substantial evidence.

The judgment of circuit court is reversed.

WHITE, C.J., STITH, PRICE and RUSSELL, JJ., concur.

TEITELMAN, J., dissents in separate opinion filed.

LIMBAUGH, J., concurs in opinion of TEITELMAN, J.

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent from the principal opinion to the extent it holds that there was insufficient evidence to support the commission’s finding that Dr. Tendai committed repeated negligence and engaged in conduct harmful to the patient.

The primary purpose of statutes authorizing the board to discipline a doctor’s license is to safeguard the public health and welfare. Missouri Board of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 442 (Mo.App.1991). To effectuate this purpose, the statutes must be construed broadly “with a view to suppression of wrongs and mischiefs undertaken to be remedied.” Bhuket v. State Board of Registration for the Healing Arts, 787 S.W.2d 882, 885 (Mo.App.1990) (quoting, Bittiker v. State Board of Registration for the Healing Arts, 404 S.W.2d 402, 405 (Mo.App.1966)). Non-technical words and phrases in the statutes are to be given their plain, ordinary and usual sense. Id.

Repeated Hegligehiee

The phrase “repeated negligence” is not a technical term and must be given its plain and ordinary meaning. The plain and ordinary meaning is set forth in section 334.100.2(5), which defines repeated negligence as the “failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances” by another physician.

The facts of this case perfectly track the statutory definition. Dr. Tendai examined S.G. on November 2, 1992, recognized that the fetus was not developing properly, and negligently failed to refer her to a perina-tologist. Dr. Tendai examined S.G. on three subsequent occasions and, each time, recognized that the fetus was not developing properly. Although the fetus continued to display signs of abnormal development, Dr. Tendai repeatedly failed to refer S.G. to a perinatologist. Thurs., Dr. Ten-dai negligently failed to refer S.G. to a perinatologist on three separate occasions. This case fits squarely within the plain statutory definition of “repeated negligence.” The principal opinion’s attempt to construct a different meaning of “repeated negligence” through an analogy to the continuing care exception to the statute of limitations in medical negligence cases is, therefore, unwarranted.

Conduct which “is or might be” harmful to the patient or the public

Section 334.100.2(5) permits discipline for “any conduct which is or might be harmful or dangerous to the mental or physical health of a patient or the public.... ” The commission found that Dr. Tendai’s conduct was harmful to the health of S.G. There is substantial evidence in the record to support the commission’s finding.

First, the autopsy concluded that “[i]n-trauterine fetal death was most likely due to the combined effects of a tight nuchal cord with severe chronic villitis of unknown etiology involving the placenta with associated intrauterine fetal growth retardation.” The principal opinion states that the autopsy supports the position that the death was caused by strangulation “and that Dr. Tendai was not negligent.” In fact, the autopsy report specifically mentions IUGR as a contributing factor to the death while offering no opinion as to whether Dr. Tendai was negligent. Where evidence warrants either of two opposed findings, the reviewing court must uphold the factual findings the agency has made. Fritzshall v. Bd. of Police Commissioners, 886 S.W.2d 20, 28 (Mo.App.1994). The autopsy findings supports the commission’s decision that IUGR was a contributing factor to the baby’s death and that Dr. Tendai’s negligent monitoring of the IUGR was harmful to the patient. This Court is not in a position to substitute its lay medical judgments for the commission’s factual findings.

Second, Dr. Cameron testified that the death could have been prevented if Dr. Tendai had properly monitored the development of the fetus. Specifically, Dr. Cameron testified that the death could have been foreseen and the baby could have been delivered via caesarian section. The principal opinion’s rejection of Dr. Cameron’s testimony as “a statement merely of timing” ignores the thrust of Dr. Cameron’s testimony that, in this case, timing may have been crucial to the medical outcome. Again, this Court is no position to substitute its conjecture regarding medical matters for the factual findings of the commission. There is sufficient evidence to support the commission’s decision to discipline Dr. Tendai’s license for conduct which “is or might be harmful” to a patient.

I would uphold the circuit court’s judgment affirming the discipline of Dr. Ten-dai’s license for repeated negligence and conduct harmful to the patient.

      . Unless otherwise noted, all statutory references are to RSMo Supp.1992, which were the statutes applicable at the time of the events in question.

      . Dr. Tendai treated S.G. and her partner for chlamydia, a sexually transmitted disease, in June 1992. The evidence at the commission hearing showed that chlamydia, when properly treated, does not generally present a danger during pregnancy.

      . "Sticky note” is the generic phrase used for products sold under trade names such as "Post-It Notes.”

      . The statute, section 334.100.2, provides, in part:
      The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any holder of any certificate of registration or authority, permit or license required by this chapter ... for any one or any combination of the following causes:

      (5) Any conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by this chapter. For the purposes of this subdivision, “repeated negligence” means the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant’s or licensee’s profession[.]

      . Sections 536.100 and 536.110.1, RSMo 2000; see John S. Sandberg, "Fair Treatment for the Licensed Professional; The Missouri Administrative Hearing Commission,” 37 Mo. L.Rev. 410 (1972).

      . Missouri courts have previously declined to recognize degrees of negligence in general tort law. See, e.g., Fowler v. Park Corp., 673 S.W.2d 749 (Mo. banc 1984); Warner v. Southwestern Bell Telephone Co., 428 S.W.2d 596 (Mo.1968). In Duncan v. Mo. Bd. for Architects, Prof. Engineers and Land Surveyors, 744 S.W.2d 524 (Mo.App.1988), the court ' of appeals recognized this general rule, but also recognized that the legislature must have intended something more than simple negligence by its use of the term "gross negligence” in professional licensing statutes. Duncan determined that “it is clear that the term connotes an improper conduct greater either in kind or in degree or both than ordinary negligence.” 744 S.W.2d at 532. The definition in Duncan properly recognizes the distinction that the statute makes.

      . Dr. Cameron did not fault any of Dr. Ten-dai’s actions before November 2, 1992.

      . An analogy is only as strong as the underlying comparison. The attempt to analogize concepts from fundamentally different legal contexts is not only unwarranted, it is also untenable. Medical malpractice litigation and physician discipline proceedings have different purposes. Malpractice litigation seeks compensation for injured patients, while disciplinary proceedings serve to protect the public from poor medical practice. Furthermore, the common law continuing care exception was created to benefit injured patients by preserving their claims against negligent physicians against the expiration of the statute of limitations. It is incongruous with the original impetus for the continuing care exception to argue that the exception supports a judicial construction of the disciplinary statutes that shields a negligent physician from discipline.


source: Caselaw Access Project

author: WILLIAM RAY PRICE, JR., Judge.

license: Public Domain

text:
    STATE ex rel. FORD MOTOR COMPANY, Relator, v. The Honorable Michael W. MANNERS, Respondent.
    No. SC 86065.
    Supreme Court of Missouri, En Banc.
    May 10, 2005.

      Robert T. Adams, Steven D. Soden, Douglas W. Robinson, Kansas City, MO, for Relator.
    J. Kent Emison, Robert L. Langdon, Lexington, MO, W. James Foland, Kansas City, MO, for Respondent.
   WILLIAM RAY PRICE, JR., Judge.

Plaintiff served an employee of Ford Motor Company with process in Jackson County. Because the employee was not “an officer, partner, [or] a managing or general agent,” Ford was not “found” in Jackson County and venue is not proper under section 508.010(1). See sec. 506.150. The preliminary writ of prohibition is made absolute.

I. Facts and Procedure

This lawsuit arose from a car accident that occurred in Chariton County, Missouri, involving a 2000 Ford Windstar. Plaintiff, Rusty Herring, brought suit on behalf of his children, who were passengers in the van. Mr. Herring is a resident of Jackson County, Missouri. There are two defendants: Mr. Danny Baker, the representative for the estate of the van’s driver, and Ford Motor Company, the manufacturer of the van. Mr. Baker eventually agreed to venue in Jackson County, but Ford did not. Ford is a Delaware corporation with its principal place of business in Detroit, Michigan, and maintains its registered agent in Saint Louis County, Missouri.

Mr. Herring filed suit in Jackson County. He served Roger Burnett, an employee of Ford Motor Company, with a copy of the petition and summons at the Jackson County Courthouse in Independence, Missouri. Mr. Burnett is a design analysis engineer for Ford and often testifies in product liability trials for Ford. That is why he was at the courthouse in Jackson County.

Ford argues that section 508.010(1) of the general venue statute only applies to cases involving a single defendant. Ford also maintains that even if section 508.010(1) applied to multiple defendants, the company has not been “found” in Jackson County as required by 508.010(1).

II. General Venue Statute

“Venue is determined solely by statute.” State ex rel. Doe Run Res. Corp. v. Neill, 128 S.W.3d 502, 507 (Mo. banc 2004). “The primary purpose of Missouri’s venue statutes is to provide a convenient, logical and orderly forum for the resolution of disputes.” State ex rel. Elson v. Koehr, 856 S.W.2d 57, 59 (Mo. banc 1993).

Section 508.010 embodies the current general venue statute and provides, in relevant part:

Suits instituted by summons shall, except as otherwise provided by law, be brought:
(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found;
(2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county....

Ford argues that subdivision (2) is the exclusive venue provision for cases with multiple resident defendants. This argument is not addressed because Ford was not “found” in Jackson County and subdivision (1) could not provide venue.

Section 508.010(1) provides two locations in which resident defendants may be sued. First “in the county within which that defendant resides” or second, “in the county within which the plaintiff resides, and the defendant may be found.” Plaintiff rests his argument for venue in Jackson County upon the fact that service of process was made upon Mr. Burnett, an employee of Ford who was found in Jackson County.

Plaintiff is correct to the extent that the term “found” in section 508.010 requires effective service of process. See State ex rel. Bartlett v. McQueen, 361 Mo. 1029, 238 S.W.2d 393, 395 (1951) (overruled on other grounds); State ex rel. Lineback v. Williams, 787 S.W.2d 334, 337 (Mo.App. 1990) (“original actions involving a plaintiff and defendant who are both residents of Missouri may be brought ... in the county of residence of the plaintiff if service of summons can be obtained on defendant in that county”); see Normandy Osteopathic Hosp. v. Gaertner, 663 S.W.2d 783, 784 (Mo.App.1984); Kissinger v. Allison, 328 S.W.2d 952, 957 (Mo.App.1959).

Plaintiff is incorrect that service of process upon Mr. Burnett constituted service of process on Ford. Section 506.150 provides the requirements for valid service of process on a corporation:

Service shall be made as follows:
(3) Upon a domestic or foreign corporation ... by delivering a copy of the summons and of the petition to an officer, partner, a managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof, or to any other agent authorized by appointment or required by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant....

Plaintiff can serve a corporation outside of its business office, but to be effective, service must be made on “an officer, partner [or] a managing or general agent.” Id.; Rule 54.13.

Mr. Burnett is not an officer or partner of Ford. Nor is he a “general or managing agent.” Sec. 506.150; Rule 54.13. “A ‘managing agent’ ... has generally been defined as one invested with some general powers which involve the exercise of independent judgment and discretion, as distinguished from an ordinary agent or employee who acts in an inferior capacity and under the direction and control of superior authority.” C.P. Jhong, Annotation, Who Is “General” or “Managing” Agent of Foreign Corporation Under Statute Authorizing Service of Process on Such Agent, 17 A.L.R.3d 625(2a), 1968 WL 15708 (1968). A general agent “mean[s] one who is clothed with general authority to act for the corporation, or one who is authorized to transact the corporate business at a particular place or of a particular department.” Id. at (23). It is someone

who is employed to transact all the business of his principal, or to transact all business of another of a particular kind, or in a particular place, or to do all the acts connected with a particular trade, business, or employment.... [O]ne whom one puts in his place to transact all of his business in a particular line, and that such agent has all of the authority over the transaction of such business as the principal had.

State ex rel. MFA Mut. Ins. Co. v. Rooney, 406 S.W.2d 1, 4 (Mo. banc 1966) (internal quotations omitted); see Johnson v. State, 925 S.W.2d 834, 835-36 (Mo. banc 1996); Morrow v. Caloric Appliance Corp., 372 S.W.2d 41, 47 (Mo. banc 1963); Ward v. Cook United, Inc., 521 S.W.2d 461, 469 (Mo.App.1975).

Mr. Burnett was an engineer employed by Ford to consult, testify for, and sit in for Ford at another trial in Jackson County. He did not have any general power or independent judgment over Ford. Nor was he “clothed with general authority” to act for Ford. At most he was a specific agent of Ford for purposes of that trial. Because Ford has not been “found” in Jackson County, venue is improper there under section 508.010(1) as it would not be fair, convenient, or logical to all of the parties.

III. Waiver of venue

Mr. Herring also claims that Ford’s objections to venue have been waived by its co-defendant, Mr. Baker, who submitted to venue in Jackson County. “[A]ny waiver of improper venue by [another co-defendant] is not controlling or binding in any manner on defendant....” State ex rel. Bowden v. Jensen, 359 S.W.2d 343, 345 (Mo. banc 1962) (overruled on other grounds). Ford did not waive its own objection to venue, and Mr. Baker’s waiver cannot impact on Ford.

IV. Conclusion

Ford has not been found in Jackson County because service of process on Mr. Burnett, alone, was insufficient to subject Ford to that venue and because Ford has not waived its objections to venue. The writ is made absolute.

WHITE, C.J., WOLFF, STITH, TEITELMAN and LIMBAUGH, JJ., and BAKER, Sp.J., concur.

RUSSELL, J., not participating.

      . All further statutory references are to RSMo 2000 unless otherwise indicated.

      . Section 508.010 is amended, effective August 28, 2005, by H.B. 393 enacted by the 93rd General Assembly, 1st session, and subsection (4), the applicable section now states:
      Notwithstanding any other provision of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured in the state of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action.

      . For purposes of this opinion, this Court will assume that the use of the singular "defendant” includes the plural. Section 1.030(2) ("When any subject matter, party or person is described or referred to by words importing the singular number ... several ... persons ... and bodies corporate as well as individuals, are included.”); State ex rel. Bartlett v. McQueen, 361 Mo. 1029, 238 S.W.2d 393, 395 (1951) (overruled on other grounds).


author: STEPHEN N. LIMBAUGH, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Kanita THOMAS, Appellant.
    No. SC 86488.
    Supreme Court of Missouri, En Banc.
    May 10, 2005.

      Henry B. Robertson, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. General, Lisa M. Kennedy, Assistant Attorney General, Jefferson City, for respondent.
   STEPHEN N. LIMBAUGH, JR., Judge.

Kanita Thomas was convicted by a jury of murder in the second degree and armed criminal action under sections 565.021 and 571.015, respectively. The trial court, following the jury’s recommendation, sentenced Thomas to twenty-five years for murder and fifteen years for armed criminal action and ordered the sentences to be served concurrently. On appeal, Thomas’ primary claims are that the court erred in refusing to instruct the jury on self-defense and involuntary manslaughter. After opinion of the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const, art. V, sec. 10. Having determined that the trial court erred in failing to instruct the jury on involuntary manslaughter; the judgment is reversed and the case is remanded. Because of the likelihood that the issue of self-defense will be raised again on retrial, this Court will address that issue as well.

I. Facts

On December 2, 2001, Thomas killed her boyfriend, Edward Anthony Jefferson, when she stabbed him in the chest. The events leading to the killing began when Jefferson, who appeared intoxicated, came home to the third-floor studio apartment he shared with Thomas’ and confronted Thomas and a girlfriend who were preparing for a party. Thomas asked where Jefferson had been, and he replied, “bitch, don’t say nothing to me.” Thomas continued to look through her clothes for a particular shirt she wanted to wear to the party. Jefferson dozed on the sofa for a minute, then jumped up and told Thomas to get out of the apartment, again calling her “bitch.” When she asked Jefferson why he treated her that way, he slapped her.

Thomas then went into the kitchen area of their apartment, picked up a knife, returned to the bedroom, and continued to look for clothes to wear to the party. Meanwhile, Jefferson angrily paced around the apartment, calling Thomas a “bitch” and telling her she was “going to eat that knife.” He told Thomas’ friend to leave, and she did so, stepping down the stairs outside the front door to the apartment. At that point, Thomas told Jefferson she did not appreciate him acting that way in front of her Mend, and Jefferson then told Thomas to “get out.” She walked out of the apartment, carrying the knife with her, while Jefferson was still inside, but she hesitated on the front door step, unlocked the door and reentered. A fight ensued, and she stabbed Jefferson in the chest. At trial, Thomas described the incident in this way: “I went out the apartment and then I went [back] and unlocked the door because he had slammed the door in my head, and then I went back in just a little bit and I just closed it and he came towards me and said, ‘Bitch,’ and he had his fist up and I still had the knife in my hand and I just jerked it and told him to get back, and it happened so quick.” Thomas testified she stepped back, covered her face with her arm, and “jerked” the knife at Jefferson twice. She said she felt the knife touch him, but had not intended to stab him. Jefferson died from a four-inch deep stab wound that punctured his peri-cardial sac and pulmonary artery.

II. Self-Defense

The trial court is required to instruct on self-defense where the evidence, viewed in the light most favorable to the defendant, is sufficient to put self-defense at issue. State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992). The substance of this defense is set out in section 563.031, which states in pertinent part:

1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such a person....
2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury....

According to the case law interpreting this statute, to support a self-defense instruction, the evidence must show: (1) an absence of aggression or provocation on the part of the defender; (2) a real or apparently real necessity for the defender to kill in order to save himself from an immediate danger of serious bodily injury or death; (3) a reasonable cause for the defendant’s belief in such necessity; and (4) an attempt by the defender to do all within his power consistent with his personal safety to avoid the danger and the need to take a life. State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984).

A self-defense instruction is not appropriate if the defendant renewed or continued the confrontation, because behavior of that sort is inconsistent with the requirement that defendant avoid the danger and the need to take a life. Id. The “renewal” cases are most often characterized by a renewal of the confrontation after either 1) the initial victim left the scene to obtain a weapon, as in State v. Henson, 552 S.W.2d 378 (Mo.App.1977), and State v. Bray, 818 S.W.2d 291 (Mo.App.1991), or 2) a significant break in the confrontation is made when the defendant removes himself or herself from the confrontation before coming back to renew the fight, as in State v. Adkins, 537 S.W.2d 246 (Mo.App.1976). The case at hand is more in the nature of a continuation of the confrontation rather than a renewal because only a few seconds elapsed from the time that Thomas exited the apartment and her reentry, and there was no significant break in the action.

On the record presented, Thomas did indeed continue the confrontation. Instead of leaving the premises, she unlocked, opened, and reentered the apartment, brandishing the knife in front of her. This conduct precludes a plea of self-defense because she did not do everything within her power, consistent with her personal safety, to avoid the danger and the need to take a life. State v. Avery, 120 S.W.3d 196, 201 (Mo. banc 2003).

Thomas’ excuse for failing to leave the premises and disengage the confrontation was that, “I didn’t go down the steps because I probably would have fell so I just stepped back.” In context, this does not appear to be an assertion that she could not have used the stairs before she chose to reenter the apartment, but rather an assertion that after her reentry, she could not have just turned and fled. This assertion, however, does not explain why she would have fallen. To the extent that her claim suggests that somehow it was unsafe to retreat down the steps, whether before or after she reentered the apartment, it is wholly refuted by the record. There was no evidence that the condition of the stairway had changed since she arrived at the apartment, and indeed her friend made it safely down the stairs just minutes before. In addition, soon after the stabbing occurred, a neighbor on the second floor brought a towel up to Thomas on the third floor and returned to her apartment without incident. There was simply no evidence that the stairs were obstructed in any way, or were wet, or ice-covered, or, unsafe in any manner. Again, in deciding not to leave when there was an opportunity for her to move to' safety, appellant’s actions, in reentering the apartment, were inconsistent with avoiding the danger. In the absence of sufficient evidence to support a self-defense instruction, the trial court did not err in refusing to submit the instruction.

III. Manslaughter Instructions

A trial court is required to instruct the jury on a lesser-included offense only if there is a basis in the evidence for acquitting the defendant of the offense charged and convicting the defendant of the lesser offense. Sec. 556.046.2, RSMo Supp.2001. The evidence is to be viewed in the fight most favorable to the defendant, State v. Craig, 33 S.W.3d 597, 601 (Mo.App.2000), and when in doubt, the trial court should instruct on the lesser-included offense, State v. Hibler, 5 S.W.3d 147,148 (Mo. banc 1999).

Involuntary manslaughter is a lesser-included offense of second degree murder. Sec. 565.025.2(2)(c). A person commits murder in the second degree if he or she “knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person.” Sec. 565.021.1(1). “Knowingly” and “purposely” are the relevant mental states for second degree murder. “Knowingly” means the person is “aware of the nature of [his or her] conduct,” or “aware that [his or her] conduct is practically certain to cause that result.” Sec. 562.016.3. Acting “purposely” occurs when it is a person’s “conscious object to engage in that conduct or to cause that result.” Sec. 562.016.2.

On the other hand, involuntary manslaughter occurs when a person “recklessly causes the death of another.” Sec. 565.024.1(1). The relevant mental state for involuntary manslaughter is acting “recklessly,” which is to “consciously disregard[ ] a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Sec. 562.016.4. Acts beyond unintentional or accidental conduct can amount to reckless behavior. State v. Beeler, 12 S.W.3d 294, 297-98 (Mo. banc 2000). Intentional acts, such as the conscious use of a weapon, may be considered reckless when done with “conscious disregard of a risk of death to another and such disregard is a gross deviation from what a reasonable person would do in the circumstances.” Id. at 299.

Here, Thomas testified that she did not intend to stab Jefferson, but instead jerked the knife at him to ward him off and protect herself from getting hit again. This evidence supports the conclusion that Thomas did not knowingly kill or injure Jefferson, but nevertheless intentionally jerked the knife at him in conscious disregard for the substantial and unjustifiable risk that death would result and in gross deviation from what a reasonable person would have done. Because this evidence permits an inference that Thomas did not intend to kill Jefferson and an inference that her use of the weapon was merely reckless, it would support an acquittal of second degree murder and a conviction of involuntary manslaughter. Accordingly, the trial court erred in refusing to submit the involuntary manslaughter instruction.

Reversed and remanded.

All concur.

      . All statutes are RSMo 2000 unless otherwise indicated.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Timothy L. STEVENSON, Appellant.
    No. WD 62538.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2005.
    Daniel L. Radke, St. Joseph, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: SMART, P.J., ELLIS and HARDWICK, JJ.
   ORDER

PER CURIAM.

Timothy Stevenson appeals his jury convictions on a felony count of unlawful use of a weapon, § 571.030.1, and misdemeanor counts of third-degree assault, § 565.070, and first-degree trespass, § 569.140. Upon review of the record, we find no error and affirm the convictions. No precedential purpose would be served by a published opinion, but we have provided the parties with a Memorandum explaining the reasons for our decision.

Affirmed. Rule 30.25(b).


text:
    Larry C. STREU, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63504.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2005.
    Rebecca L. Kurz, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before LOWENSTEIN, P.J., SMART, J. and EDWIN H. SMITH, C.J.
   ORDER

PER CURIAM.

Movant was convicted of first-degree murder and sentenced to life in prison. He now seeks post-conviction relief, claiming that his trial counsel was ineffective for not making proper objections to portions of the State’s closing argument, which allegedly bolstered or vouched for the veracity of its key witness. Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Charles BAUSBY, Appellant.
    No. WD 63526.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2005.
    Craig Allan Johnston, Columbia, MO, for Appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., HOWARD and NEWTON, JJ.
   ORDER

PER CURIAM.

Appellant Charles Bausby (“Bausby”) appeals from a jury conviction in the Circuit Court of DeKalb County for committing violence against an employee of the Department of Corrections in violation of section 217.385 RSMo 2000. In his sole point on appeal, Bausby argues the trial court plainly erred in not submitting a self-defense instruction to the jury because there was substantial evidence putting that defense in issue.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    Carl W. EVANS, Appellant, v. CITY OF FULTON, Missouri, Respondent.
    No. WD 63859.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    Rehearing Denied May 31, 2005.
    Greg T. Hyder, Columbia, for appellant.
    Michael G. Berry, Jefferson City, for respondent.
    Before EDWIN H. SMITH, Chief Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Carl Evans appeals the judgment, following jury trial, regarding the issue of damages in his inverse condemnation claim against the City of Fulton. He contends the trial court committed plain error by sustaining the City’s motion in limine and excluding evidence Evans intended to offer regarding the cost of replacing the building on his property that was wrongfully demolished by the City.

We have reviewed the briefs of the parties and the record on appeal, and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b)