Breeden v. Hueser, WD 68069.

• Decision Date: 30 June 2008
• Docket Number: No. WD 68069.,WD 68069.
• Parties: Daniel BREEDEN, as the Personal Representative, has consented to the substitution of the Estate of Don Merchant, and Greg Katzing, individually and on behalf of Themselves and all others similarly situated consumers, Appellants, v. James N. HUESER, M.D., et al., Respondent.
• Court: Missouri Court of Appeals

273 S.W.3d 1

Daniel BREEDEN, as the Personal Representative, has consented to the substitution of the Estate of Don Merchant, and Greg Katzing, individually and on behalf of Themselves and all others similarly situated consumers, Appellants, v. James N. HUESER, M.D., et al., Respondent.

No. WD 68069.

Missouri Court of Appeals, Western District.

June 30, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 2, 2008.

Application for Transfer Denied November 6, 2008.

Anthony L. Dewitt, Edward D. Robertson, Jr., Co-Counsel-Jefferson City, MO, for appellants Daniel Breeden and Greg Katzing.

John L. Roark, Columbia, for respondent J. Hueser, M.D.

Brian D. Malkmus, Springfield, MO, for Respondents David Payne, Lindall Perry and R.W. Schondelmeyer.

Susan F. Robertson, Esq, and Wade H. Ford, Jr., Esq., Columbia, MO, for respondents Robin Blount, James Brocksmith, Charles L. Chapman and Thomas J. Ciolino.

Susan F. Robertson, Esq., Kathleen C. Pitzer, Esq. and Wade H. Ford, Jr., Esq., Columbia, MO, for respondents Peter J. Cleavinger, Michele A. Diaz-Arias, Stephen W. Welsh, Donald G. Gerhardt, and Nicholas Llorens.

James P. Reinert, Esq., and Teresa D. Pupillo, Esq., St. Louis, MO, for respondents Ellen H. Thomas, M.D., Paula Stuebben, M.D., Lyle G. Breeding, M.D., and Robert J. Harris, M.D.

Elizabeth H. Weber, Esq., and Glen R. Ehrhardt, Esq., Columbia, MO, for respondent Medical Network Technologies, LLC.

Before DIV. II: HOLLIGER, P.J., LOWENSTEIN and NEWTON, JJ.

HAROLD L. LOWENSTEIN, Judge.

INTRODUCTION

The question presented here is whether a claim against a doctor that arises out of unauthorized and duplicative billing practices falls within the range of actions subjected to the two-year statute of limitations applicable to certain actions brought against health care providers. See 516.105, RSMo Supp.2008.¹ Plaintiffs in this case appeal the circuit court's judgment of dismissal based on the two-year filing timeframe. This court finds that the Plaintiffs' claims are not subject to section 516.105 and reverses the circuit court's dismissal.

FACTUAL BACKGROUND

On March 9, 2006, Plaintiff Ron Merchant, through his daughter and attorney in fact, Sue Berry, brought this suit against Dr. Hueser and others practicing under the name "Boone Clinic" in Columbia, Missouri. Along with Merchant, the petition claimed to represent as plaintiffs "all other similarly situated consumers" of Dr. Hueser's medical practice.² In an amended petition, Plaintiffs added Greg Katzing as a named plaintiff. The trial court later ordered the substitution of Daniel Breeden, personal representative of the estate of the deceased Ron Merchant, in the place of "Ron Merchant by and through Sue Berry" as a plaintiff.

According to the amended petition,³ Merchant's wife received chemotherapy treatments from Dr. Hueser, the last of which was administered in September of 2001. Katzing was also one of Hueser's chemotherapy patients. He was last treated in 1997. The petition alleges that Dr. Hueser devised and executed a scheme to defraud his patients by treating multiple patients with doses of chemicals pulled from a single vial, where common medical practice and government regulations dictated that a new vial was to be used for each treatment. The scheme involved charging each patient the full price of a new vial for each treatment but sometimes providing them with the left-over chemicals from another patient's treatment. As this type of impropriety is difficult to detect, especially since the typical lay person has little to no knowledge of the rules and standards relating to the handling and administration of pharmaceuticals, Plaintiffs were not aware of the scheme until after the treatment had ended.

In November of 2005, Merchant and Katzing learned that Dr. Hueser had paid a settlement to the federal government for improperly billing Medicare multiple times for single-use chemotherapy vials. The petition claims it was not until that time that either Merchant or Katzing knew they had been improperly billed for the chemicals provided by Dr. Hueser. The amended petition names Dr. Hueser and twenty-two other doctors as defendants, as well as Medical Network Technologies, L.L.C. These other doctors are alleged to have carried on a de-facto partnership with Dr. Hueser by conducting business with him under the name "Boone Clinic." Boone Clinic is apparently not a registered business entity of any kind and is alleged to be an unofficial arm of Medical Network Technologies, L.L.C. Plaintiffs seek to hold all of the doctors vicariously liable for the acts of their partner, Dr. Hueser.

The amended petition claimed (1) that Dr. Hueser's actions created liability under chapter 407, the Merchandising Practices Act⁴ (MPA); (2) that fraud was committed through implied representations that the drug being purchased and administered was compliant with certain requirements; and (3) that the twenty-three doctors making up the Boone Clinic joined in a civil conspiracy to defraud patients by re-using single-use vials of medication.⁵ Several motions to dismiss were filed by various defendants, the most prominent argument being that the claims set forth in the amended petition should fall under the scope of section 516.105 and be barred by its two-year limitation on healthcare malpractice actions. The circuit court granted a dismissal based on the statute, stating "the court finds that the action alleged is one of malpractice related to health care for which damages are sought against alleged health care providers and that the period of limitations applicable is two years from the date of occurrence of the act complained of as specified in [section] 516.105." The trial court found that the action was not commenced within two years of the most recent treatment of either Mrs. Merchant or Mr. Katzing. Plaintiffs' primary argument on appeal is that the trial court improperly branded the action as one for medical malpractice or negligence and applied the wrong statute of limitations.

STANDARD OF REVIEW

In reviewing a trial court's grant of a motion to dismiss, this court gives the pleadings their broadest intendment, treats all alleged facts as true, and construes the allegations favorably to the plaintiff. Arbuthnot v. DePaul Health Ctr., 891 S.W.2d 564, 565 (Mo.App.1995). If the facts pled and the reasonable inferences to be drawn therefrom, viewed most favorably to the plaintiff, show any ground for relief, the plaintiff has the right to proceed. State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 145 (Mo.App. 1974). This court must affirm the trial court's ruling "if the motion [to dismiss] could have been sustained on any of the meritorious grounds raised in the motion," regardless of whether the trial court relied on that particular ground. Owner Operator Indep. Drivers Ass'n, Inc. v. New Prime, Inc., 133 S.W.3d 162, 166 (Mo.App. 2004); Burke v. Goodman, 114 S.W.3d 276, 279 (Mo.App.2003). It will not, however, affirm the grant of a motion to dismiss on grounds not stated in the motion. State, Dept., of Soc. Servs. v. Carroll Care Ctrs., Inc., 11 S.W.3d 844, 849 (Mo.App.2000). The standard for reviewing the grant of a motion to dismiss is de novo. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo. App.2004).

1. STATUTE OF LIMITATIONS QUESTION

Section 516.105 states, "All actions against physicians, hospitals . . . [or] any other entity providing health care services . . . for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of. . . ." § 516.105, RSMo. The section's opening phrase "all actions against physicians" is qualified by the words "for damages for malpractice, negligence, error or mistake related to health care." Rowland v. Skaggs Co., Inc., 666 S.W.2d 770, 772 (Mo. banc 1984) (Section 516.105 has been amended twice since Rowland examined its application in 1984. The pertinent language was unchanged.) "The legislature's use of the latter phrase evinces a desire to confine suits subject to the short statutory period in [section] 516.105 to those enumerated." Id. Because of this, the statute encompasses only those actions where a health care consumer "seeks damages for injuries resulting from some improper, wrongful, or careless acts or omissions on the part of a health care provider in the delivery of health care to the consumer." Dunagan v. Shalom Geriatric Ctr., 967 S.W.2d 285, 288 (Mo.App.1998).

Missouri courts look to the gist or gravamen of an action to decide whether it should be governed by the two-year statute of limitations. See, e.g., Nat'l Credit Assocs., Inc. v. Tinker, 401 S.W.2d 954, 959 (Mo.App.1966); Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029, 1030 (1931). It is clear that an action that arises out of a doctor's malpractice or negligence in providing health care cannot avoid the application of section 516.105 merely because it is pled as a claim for fraud, misrepresentation, or breach of contract. See M.M.H. v. J.P.C., 42 S.W.3d 16, 18-19 (Mo.App.2001); Ley v. St. Louis County, 809 S.W.2d 734, 737 (Mo.App. 1991); Tinker, 401 S.W.2d at 955, 959.⁶ However, actions brought against doctors and health care providers are not automatically subject to 516.105. See Cullom v. Crittenton, 959 S.W.2d 915, 918 (Mo.App. 1998) (two-year statute of limitations does not apply to action against health care provider for falsifying consent for adoption); Rowland v. Skaggs Cos., 666 S.W.2d 770, 773 (Mo. banc 1984) (two-year limitation does not apply to actions for contribution between health care providers); State ex rel. Sperandio v. Clymer, 563 S.W.2d 88 (Mo.App.1978).

This court, in State ex rel. Sperandio v. Clymer, examined a fraud claim against a physician with respect to the applicability of the medical malpractice statute of limitations. See 563 S.W.2d 88 (Mo.App.1978) (addressing ...