*1 brief, By reply' appellant also com-

plains of the trial court’s failure to instruct jury in accordance with Section 552.030

6. at the time of the admission the testi-

mony noted, questioned. now As above

jury properly prior had been instructed reception psychiatric testimony, of the request repetition

there was no for a Paraga’s

instruction at the time of Doctor

testimony jury and the properly in- writing

structed subject upon on the

submission of the jury. case to the circumstances,

In these the failure of the repeat

trial court to the instruction at the

time of Paraga’s testimony Doctor was not

reversible error. Speedy, State v. 256-257[9-13]

Judgment affirmed.

MORGAN, J., P. BARDGETT

RENDLEN, JJ., HOUSER, Senior

Judge, concur. CURNOW, M.D., INC., B.

RICHARD

Plaintiff-Respondent,

Gary SLOAN, Third-Party Defendant and

Plaintiff-Respondent, SHIELD, Defendant-Appellant.

BLUE

No. 62987. Missouri,

Supreme Court of

En Banc.

Dec. 12, 1982.

Rehearing Denied Jan. *2 August Virginia, daughter of Sloan, was treated for arm

defendant an emergency Liberty fracture at room of the Hospital by Voy, employee Dr. the an of plaintiff, orthopedic surgeon Liberty, an in charged Missouri. a of Plaintiff total up for emergency of $380.50 $50.00 consultation, for and x-rays, room $68.00 for of frac- a closed reduction the $262.50 and four ture office visits. a of

Mr. Sloan was member the United His had health Auto Workers. union a third-party benefit contract with defend- ant, Shield, “hold Blue which included a whereby harmless” Blue clause Shield assist and defend insured in the would the physician non-participating1 event was charged than Blue Shield felt more non- customary. and was a usual Plaintiff participating physician. dispute x-ray did not the

Blue Shield fees, the of but determined that total emergency for room consulta- the $312.50 and was tion fracture reduction services “peer group” proce- its excessive. Under dures, Blue established a fee of Shield $200.00, leaving balance $112.50. against Mr. was Plaintiff’s action Sloan total alleged for balance. He that the the fee reasonable value of by patient. Mr. treatment received a defendant in Sloan added Blue Shield as City, 0. Bagby, Max Kansas for defend- provi- harmless accordance with hold ant-appellant. sion; any stipulated pay Blue Jr., Liberty, Vincent for Igoe, plain- F. plaintiff. for The court judgment entered tiff-respondent. for in amount found Whipple Whipple, C. David David W. & unpaid balance. City, third-party

Kansas defendant in its Blue Shield the court erred plaintiff-respondent. judgment “because reasonable value of the services rendered is essential HIGGINS, Judge. meruit; recovery quantum plaintiff’s in meruit, In an action in the court present as failure evidence plaintiff physician awarded a judgment of the services rendered to reasonable value against defendant Blue The Shield. Court daughter plain- is fatal to defendant Sloan’s District, Dixon, J., Appeals, per Western quantum meruit.” It ar- recovery tiff’s judgment. affirmed the The case was gues prove must the reasona- question transferred this Court on of his fee in the where ble value sufficiency support judg- by expert opinion of evidence to are rendered services ment. Affirmed. evidence. reasonable, Participating physicians agree accept amount determined to be usual payment customary by procedure. internal full their services a fee in Blue Shield professional opinion, establishes the rea-

Recovery quantum meruit question. Bodde of the fee in sonableness performed services is limited to the reason Burnham, (Mo.App.1979). 588 S.W.2d 516 able value of the services. St. Charles See Hoelzer, Floor Co. 565 S.W.2d proce would have its Doro, Ltd., App.1978); Vosevich v. partic which it establishes fees for dures question ipating conclusive on the doctors such a case is whether the evidence is suffi plaintiff’s charges. reasonability Such *3 support judgment cient to the trial court’s of the testimony does not warrant reversal plaintiff’s charge that for his services the question. Opinions of the court’s resolution judgment was reasonable. decree or “[T]he conflict, be when in must experts, by of the trial court will be sustained the of fact and considered weighed by the trier appellate court unless there is no substan experience, the light of such matters as it, support tial evidence to unless it is case, given the and knowledge, attention evidence, against weight the of the .... reasoning under of each. The the interest Appellate power courts should exercise the credibility is opinion and lying expert’s the judgment to set aside a decree or on the court, finder, important. trial as fact The ground ‘against weight that it is the finding plaintiff, obviously discounted evidence’ with and a firm be caution with grounds. on such contrary the evidence wrong.” judgment lief that the decree or is argues that communi Carron, Murphy v. 536 32 S.W.2d aspect an essential of rea ty standards is 1976). banc It asserts that because sonableness. Dr. Curnow that he had treated testified testimony explicit on offered no plaintiff neighborhood “in the of 200” fractures of charged, his action physicians what other Sloan; type by Virginia suffered that of what is Although evidence must fail. be patients by his a wide in the can generally come “from others considered, dispositive. Baker range locally, north Missouri and but it is —in Estate, (Mo.1956) counties, mostly surrounding pri- from the Brown’s Ltd., supra, do con v. Doro Platte, and Vosevich marily Clay, quite from some from a determining the a factor in locality sider Ray County.” few from had never ex- He fees; however, neither reasonableness perienced challenge to the reasonableness necessary element thereof. holds this to be by anyone, this fee for this service in- found, If, trial court could have as the cluding Blue and other insurance insurance com patients estimated companies. Only prior six to the weeks for this panies paid in the area this fee present dispute, paid Blue Shield had complaint, a find particular service without charge same in a similar case. charged by some num ing that it was also Dr. Curnow also testified that when he required. For ber of other doctors is not began practice, his he used a relative value matter, his initial fee testified Academy scale obtained from the of Ortho- association by base was that set a national fees, pedic Surgeons in order to establish his provides some colleagues, his and that adjustments and had made since that time community stan of a additional evidence for inflation and other added costs. different, plaintiff’s Each case is dard. Because the of reasona reasona testimony alone can establish the bleness of medical fees is not a matter of considering pro charge, of his ble value knowledge, expert testimony common is upon which it was found fessional base fee making necessary to aid the trier of fact in case, plaintiff this demonstrated ed. Brayton, fees, determination. Tuttle arbitrarily establish his that he did not S.W.2d 46 Plaintiff’s testi amount billed to Sloan was and that the mony qualified him as an and his by charge standard qualifications questioned. accepted by The were not for and performed the services considering served plaintiff’s testimony, geographical own area patients in the practice. first as well as his hand of this case having The trial court resolved the issue for upon the most effect our law are plaintiff, nothing and there is this record principle cases which involve more than to require ground case, reversal on the principal. my This which would in 73.01; judgment unsupported. is Rule opinion change quan- our rules of Carrón, Murphy v. supra. substantially, tum is exception. meruit no principal remaining The is the $112.50 un- Affirmed. paid on the doctor bill over and above the MORGAN, paid JJ., already prin- Blue $200 RENDLEN and Shield. concur. Shield, ciple here involved whether Blue DONNELLY, J., separate C. concurs in anyone matter, else for that can contin- concurring opinion filed. upon rely ue to courts enforce the WELLIVER, J., separate dissents in dis- proving traditional rules for the value of senting opinion filed. upon quantum services based meruit. A BARDGETT, JJ., explains SEILER and presence dissent side issue which *4 and separate dissenting concur in opinion insignificant this otherwise case in our WELLIVER, Court, J. out arises of the basic structural concept upon which Blue Shield medical DONNELLY, Justice, concurring. Chief payment plans were founded. This side If may indulged be an observation: legal issue has no relevance to the issue of This Court is to authorized transfer a the case. case from Appeals the Court of to this concept The structural only (1) general Court because of the inter- contemplates sign that the association will importance est or question of a involved in up portion a substantial of the doctors in a case; (2) the purpose or for the of reexam- “participating physicians”. as law; ining existing (3) the or for the reason signing Those so are denominated or opinion the Ap- filed in the Court of “non-participating physicians”. known as peals contrary is to a previous decision of an “peer A group” among so-called from the appellate court of this state. Mo.Const.art. “participating physicians” establishes the 10; V, Rule 83.03. § charge for customary reasonable and each The sole issue in this case is whether the procedure medical service or rendered with- evidence is to support judg- sufficient the community. the In consideration their view, In my ment. this Court erred in participation pay agrees Blue di- Shield ordering the case transferred. participating physicians rect to the amount I concur. so is into established. There also built gradual establishing fees escalation of WELLIVER, Judge, dissenting. approved reported upon based fees I respectfully dissent. charges. non-participating physicians If accept or refuse the amount tendered legal The is sole issue whether Dr. Cur- Shield, legal remedy now has covered Blue their proving sustained the burden of is, here, patient necessary judg- elements to sustain the as to sue the for the fee meruit,2 upon upon quantum ment for his quantum recovery fee based meru- based so frequently happens, it.1 As the cases value of the upon also based the reasonable form, Co., 148, simplest quantum 1 In its meruit Viles v. Kennebec Lumber 118 Me. defined as: 106 A. 431. Dictionary, (emphasis Law 4th Ed. Black’s MERUIT. As he QUANTUM much as de- original). pleading. served. The Common Court in labor, assumpsit an action of for work and case, tried, by yet 2. This is cluttered another as implied assumpsit promise founded on or on side issue also without relevance to real part pay of the defendant to principal opinion case. issue See and reasonably as much as he deserved to have thereof, explaining footnote 1 the union con- 161, 2; for his 3 labor. Bl.Comm. 1 Tidd Pr. provision. and tract its “hold harmless”

609 Strauser, 423, (Mo.App. 573 424 charges for the same or similar services S.W.2d Hoelzer, community. Upon premis- 1978); within the Floor 565 these Charles Co. v. St. es, 844, “premiums” (Mo.App.1978); so-called or 848 Cavic v. S.W.2d Laboratories, Inc., payment medical are 416 reimbursement estab- Missouri Research 6, (Mo.App.1967); lished the Blue Association. Con S.W.2d 8 Service Nichols, 283, obligated Were the pay association all 378 289 struction Co. S.W.2d fees submitted and by non-par- (Mo.App.1964); Brayton, demanded Tuttle v. 215 ticipating regardless 46, doctors of these con- 49 61 Am. S.W.2d See agreements regardless long Surgeons tractual Physicians, Jur.2d & Other Heal legal regarding proof (1981). carry established rules- ers can § recovery upon quantum meruit, only by proving based his valua then this burden “premiums” actuarial determination closely approximates tion of his services nearly impossible would be “price usually customarily paid and a matter of for such speculation. rank and in services or like services at the time locality the services were ren where We need look to Dr. Curnow’s testi- Estate, 294 Baker v. Brown’s dered.” mony to determine whether he sustained his 27; accord, Henderson, S.W.2d at Glover burden proving the elements of 175, (Mo.1894); 120 Mo. S.W. meruit. There is no what we but Doro, Ltd., Vosevich v. S.W.2d normally Curnow, expect would Dr. other- (Mo.App.1976); Cavic v. Missouri Research expert wise an profession, qualify in his 9; Laboratories, Inc., 416 Service as an witness both as to the reasona- Nichols, Construction Co. v. 378 S.W.2d at bleness of charges, his own *5 289; 52, Work 65b 98 C.J.S. and Labor §§ charges reasonable by others for the (1957); Im 66 Am.Jur.2d Restitution and same or similar procedures services or in (1973). plied 28 Contracts § However, community. reading a fair of all of Dr. testimony Curnow’s not reflects reasonableness of medical fees is Since only a stubborn refusal to state that his knowledge, expert of common a matter reasonable, own are but also an concerning testimony their reasonableness absolute denial that knowledge he has All required is to assist the trier of fact. charge what others for the same or similar Allmon, mon v. 314 462-63 S.W.2d community, services in the thereby setting App.1958); Brayton, at Tuttle S.W.2d the stage for a test concept of the basic 49; Co., Bieg Plumbing see Berra v. upon which the Blue Association (Mo.App.1979); Vosevich v. S.W.2d medical payment plan expla- is based. This 757; Doro, Ltd., 536 Cavic v. S.W.2d nation of the otherwise irrelevant side issue Laboratories, Inc., 416 Missouri Research explain why parties serves at 8. While we have conceded that spend legal many would in costs times the expert orthopedic physi Dr. is an Curnow amount judgment in this case. expertise to cian and should have sufficient prove reasona required proving testify

The elements a as an nothing claim upon quantum charges, for services based me- of his own in bleness ruit are expertise self-proving clear and well in the nor is established law makes such case law of any expert Missouri. there who cannot his own must testimony disprove expertise. his We In order to sustain a claim in testimony. Dr. examine Curnow’s rendered, meruit for the value of services has proving reaching the burden of The far effects of this otherwise require quoting reasonable value of ren- both exten- the services he “small-claim” Estate, the short sively comprehensively dered. Baker v. Brown’s from (Mo.1956); transcript.3 S.W.2d 22 v. Estate of Strauser cases, proving quantum quotation questions od of meruit in future 3. The extensive and an- may obligation principal opinion prevail. swers also serve to fulfill our should the give guidance proper to the bar as to the meth- principal opinion Q. you states that And “The do fellows sit around and plaintiff’s testimony, considering own you’re discuss the his amount fees that going charge first people hand of this or how case as well as much you’re going charge a professional particular opinion, establishes the rea- procedure? (cita- question”, sonableness the fee in omitted), tion A. “plaintiff and that Never. testified his initial fee base was that set a nation- Q. Okay. Is there why reason al colleagues, association of his you and that don’t?

provides some additional evidence of a com- A. no There’s reason that we should. munity standard.”

Plaintiff-respondent, Curnow, (Emphasis added.) Dr. testi- fied: Q. Okay. Approximately in the time you’ve practice, many been in how Q. Curnow, Doctor initially estab- these, records, according your you have lishing the you charge you fees that when treated? area,

first in practice came you prac- A. all been the time I’ve you indicated that used relative value tice? scale. What was that? I mean what— Q. practice you’ve been in Since here A. What was the relative value scale community. in this I used? estimate, you A. This would be Q. Well, you get where did this rela- say, probably know. I would in the tive value scale? neighborhood got A. I Academy from the of Ortho- Q. Now, Okay. injury there’s another pedic Surgeons. fracture; called a collex is that correct? Q. Okay. you Are a member of the A. Yes. Yes. Academy Orthopedic Surgeons? Q. Is that a similar— Well, Yes, no, A. am. I take I’m — A. is It a similar fracture. It is a got that back. I’m application not —I’ve usually term reserved for adult fractures in at waiting this time. It period anatomy. of the same area of the you’re *6 qualified, after you’re Board after Q. say figure you I see. When Board waiting certified. period There’s types does that include these of frac- you join before Academy. tures, also? Q. Okay. That you basis A. Yes.

had. You any didn’t talk to other ortho- pedists in concerning this area fees that Q. brought You’ve in approximately they charge? pa- 47 files. Are these on the files A. Not— you tients that have treated the last— Q. you Did know they whether were A. Yes. participating non-participating physi- or Q. years particular —few cians? type injury? A. Had no idea. Yes, A. sir. Q. orthopedists practice How many Q. paid you And have been practice orthopedics in Clay medicine — amount of for the $262.50 $50.00 County, Missouri? emergency room consultation each A. many How practice? There’s cases? those around a dozen. A. You mean for the fracture reduc-

Q. Okay. you Do know as to those tion?

individuals, they par- not whether or are Q. Yes. ticipating or non-participating members? paid A. Ever been that amount for

A. Have no idea. the fracture reduction? Yes. Q. Okay. emergency And for

room consultation? added.) (Emphasis A. Yes. Q. you you recall how How did—do Q. Okay. prior present charge? set the fee They paid my A. fee on that. Yes. words, you were In other the fee that Doctor,

Q. your patients where do charging prior service to the for this generally come from? spring of ’76? My patients

A. come from wide Yes, you exactly I can tell how I A. range north Missouri locally, but all, meeting set that fee. First of after —in mostly counties, from the surrounding help trying with no when to discuss it primarily Platte, from Clay, some from my colleagues with older when I went quite a few from Ray County. Those— practice, being into able to find out that’s the majority my patients. ball-park, arbitrarily, initially, I set

some fees based on what I was able to Q. Now, get patients they paid Curnow, out of what had you’ve Doctor indi- orthopedic procedures in cated for certain other procedures during that on other then, period discussed, this time the recent future I at that that we have [sic]. time, you performed other, similar, used a relative value scale which closed re- visits; allowable, ductions and hospital appar- is that was then which is not cor- allowable, rect? ently not so I’ve been told. [sic] I I But used relative value scale. A. Yes. figure through backed this the relative Q. And my request you went up value scale and came with a unit val- through your at your files office and ue. pulled treatments; the files on the various is that Q. you vary correct? Do ever the fee given for a service?

A. Yes. Q. charge. A. Not the initial I make al- Okay. you And indicated that you’ve paid been lowances later if there are circumstances. by other insurance com- panies by individuals, personally, for Q. you tell me cir- Can some of the your services? cumstances?

A. Yes. Very easily. people A. Yes. Some Q. Have you ever any had to sue oth- any money. They don’t have don’t have er individual for the collection of an They any insurance. don’t have particular account on this type injury They problems. have other means. and the treatment of got it? they’ve it’s Christmas and Sometimes things

A. a house full of kids. take a lot No. under consideration. *7 Q. Okay. Have you paid been the full So, words, Q. you your amount for in other reduce procedure by this Blue Cross- ability pay fee in the event of difficult to previously and on other occa- part patient? on the of the sions? Yes, I Very

A. have. A. true. Q. youDo know fee, what other doctors in Q. charge You this which is the charge the area for this same service? highest you charge, fee that $262.50 I this service? A. have no idea.

Q. right. If you were A. That’s I have a fee for to learn that other procedure, that’s what I charging doctors were certain because you less than charge, that'it’s worth. would it affect the amount of feel your bill? Q. Now, you you do I understand that survey any

A. Not whatsoever. made kind of a have not among-your colleagues to determine what BY MR. BAGBY: they’re charging service? Q. I’ll repeat question. you Do A. That is true. opinion have as to whether fees Q. you Have engaged any ever in fee you charged that in this case at time peer review or type activity review in higher in were than the fees association, behalf of a medical an insur- charged by your colleagues in this area company, any ance or other party? similar service? A. No. IA. don’t know. (Emphasis added.) added.) (Emphasis Q. spite you of the fact that have There is no reference to a “fee schedule” you not made a do survey, opin- have upon or “schedule of fees” which Dr. Cur- ion as to or your whether not fees are based, charges only now’s were a reference higher reasonable, than the customary to a 1976 “relative value was scale” which

fees physicians other for these by plaintiff-respondent services? used to determine originally. his own fees It is of at least object I questioning. A. to that line of passing interest to note that the “relative Q. just you you asked if had an value scale” was from the obtained opinion. Academy Orthopedic Surgeons, a board A. You’d me if I opin- asked had an plaintiff-respon- certification to which ion— yet dent not admitted at time of Q. your As to high- whether fees were and, trial, appears proof the record void of er— plaintiff-respondent’s that services A. —As to my higher whether —were reasonably equal time were to value than their reasonable customary physicians. services board certified fees— Well, Q. this, Well, me let ask let plaintiff-respon- The stubborn me— refusal you— to charges dent state that his for his serv- A. —Insinuating that mine were unequivocal ices was and his de- reasonable higher customary. than reasonable and any knowledge nial as to the

Q. Let rephrase question. me for the community others in services, customary” A. And or “reasonable same similar not consti- your your term from Blue Cross-Blue tutes a total failure of under our case Shield. meruit4, pertaining law but it

Q. Let me rephrase question. Do also constitutes a virtual self destruction you opinion have an as to whether the fee qualifications expert qualified his own as an you charged higher in this case was testify as to the value of such services than— community. authority no for the I find Doctor,

THE going holding COURT: I’m principal opinion that “Al- you fingers. have ask tap charged by what is oth- though evidence of You’re messing up microphone. her I’m considered, ers in the can be it sorry. dispositive,” to be a is not and consider it right. All departure

WITNESS CURNOW: from our marked traditional it, appeals implied distinguishes 4. This factor this case from furnished the court Burnham, possessed (Mo.App. *8 Bodde when it such 1979), principal opinion, cited in the in which been in noted thirty-eight years. he had the business plaintiff rate, regard testified an with At it is clear that to the reasonable he fur- value labor did not disclaim all Although explicitly provid- customary charge nished. it not stated for similar labor that case that the locality, was aware ed others in same as Dr. Cur- price customarily paid for labor he fur- like now did in the at bar. case locality nished the time and in the where he rules of meruit. I do not

view the record of this case sufficient

support judgment. Carron, Murphy v. 1976). S.W.2d 30 banc judgment below should be reversed judgment defendant-appel- entered for

lant. M.,

In the Interest of L.C.

minor child.

Appeal Regina DUTKIEWICZ.

No. 63111.

Supreme Missouri, Court of

En Banc.

Dec. Uthoff, Louis, appellant.

David V. St. Wiese, City Juvenile Terry W. St. Louis Court, Louis, respondent. St. HIGGINS, Judge. 120.01,

Regina appeals, Dutkiewicz Rule judgment from a encompasses which 211.031, adjudicatory determination under § incapable provid- RSMo that she is