Brickey v. Concerned Care of Midwest, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: ROBERT G. DOWD, Jr., C.J. and RICHARD B. TEITELMAN
• Citation: Brickey v. Concerned Care of Midwest, Inc., 988 S.W.2d 592 (Mo. App. 1999)
• Decision Date: 30 March 1999
• Docket Number: No. 74555,74555
• Parties: Arleta BRICKEY, Mabel Mason, The Estate of Tillie Krueger, Appellants, v. CONCERNED CARE OF THE MIDWEST,INC., d/b/a Oak View Living Center, Respondent.

Page 592

988 S.W.2d 592

Arleta BRICKEY, Mabel Mason, The Estate of Tillie Krueger, Appellants, v. CONCERNED CARE OF THE MIDWEST,INC., d/b/a Oak View Living Center, Respondent.

No. 74555.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 30, 1999.

Arleta Brickey and Mabel Mason, Plaintiffs, are the surviving daughters of Tillie Krueger (Krueger) and the personal representatives of the Estate of Tillie Krueger. Plaintiffs sued Defendant, Concerned Care of the Midwest, Inc., d/b/a Oak View Living Center, Inc., ¹ claiming breach of contract based upon the negligent care of Tillie Krueger, and separate claims for wrongful death, negligence and medical malpractice. Plaintiffs appeal: (1) dismissal of the breach of contract claims; and (2) summary judgment on claims of wrongful death, medical malpractice and negligence. We affirm.

Tillie Krueger, a 95-year-old woman, was a resident of a nursing home operated by Defendant in Jefferson City, Missouri. On June 21, 1993, an employee of Defendant discovered Krueger had sustained a leg fracture. She was admitted to St. Mary's Health Center (St.Mary's) for treatment. A second fracture was discovered on December 13, 1993. She was transferred to St. Mary's that same day for treatment. Plaintiffs alleged on March 12, 1995, Krueger was dropped during a bed transfer, sustaining a head injury. She was admitted to St. Mary's emergency room that day. The next day, Dr. Kim Rettenmeier examined Krueger. He was not able to substantiate any head injury. On March 17, 1995, Tillie Krueger died.

Plaintiffs, individually and as personal representatives of Tillie Krueger's estate, filed a petition against Defendant in the Circuit Court of Cole County on December 15, 1995. The lawsuit was dismissed without prejudice. Plaintiffs refiled the petition in St. Louis County on August 18, 1997. They sought damages for injuries Krueger sustained from alleged mistreatment and improper care, and for damages Plaintiffs sustained as a result of an alleged breach of contract.

Defendant filed a motion for summary judgment on the medical malpractice, wrongful death and negligence claims based upon the absence of evidence of medical causation and the statute of limitations. Defendant filed a separate motion to dismiss the breach of contract claims arguing that the claims can only be for medical malpractice. The trial court granted both motions.

In their first point on appeal, Plaintiffs argue the trial court erred in granting Defendant's motion to dismiss the breach of contract claims. To withstand dismissal, Plaintiffs' allegations must be sufficient to permit proof of a well-pleaded cause of action. Leeser Trucking, Inc. v. Pac-A-Way, Inc., 914 S.W.2d 40, 42 (Mo.App. E.D.1996). We must assume that all the facts pleaded in the petition are true, making reasonable inferences from those facts. Id. However, we need not accept the conclusions of Plaintiffs. Michigan Sporting Goods Distributors v. Lipton Kenrick, 927 S.W.2d 570, 573 (Mo.App. E.D.1996). We will affirm the dismissal if it can be sustained on any ground submitted by the Defendant in support of the motion, regardless of whether the trial court relied on that ground. Braswell v. Chehval, 935 S.W.2d 53, 54 (Mo.App. E.D.1996). Thus, the burden is on Defendant to establish that Plaintiffs' allegations fail to state a claim. Nisbet v. Bucher, 949 S.W.2d 111, 113 (Mo.App. E.D.1997).

Defendant argues that Plaintiffs failed to allege facts sufficient to state a cause of action for breach of contract, and that the statute of limitations bars the claim. To state a cause of action for breach of contract, plaintiff must plead: "(1) mutual agreement between parties capable of contracting; (2) mutual obligations arising out of the agreement; (3) valid consideration; (4) part performance by one party; and (5) damages resulting from the breach of the contract." Muir v. Ruder, 945 S.W.2d 33, 36 (Mo.App. E.D.1997).

Plaintiffs argue: (1) they entered into a contract with Defendant in which Plaintiffs agreed to pay Defendant to take care of their mother; (2) Defendant breached the contract "by failing to properly care for, treat or supervise [T]illie Krueger and failed to keep plaintiffs informed of Tillie Krueger's condition;" and (3) as a direct result of the breach of contract, they suffered damages.

Plaintiffs failed to state a breach of contract cause of action. Defendant agreed to provide health care services as described in the admission contract, which provided, inter alia:

Residents have the right to a high standard of care.

Residents at Oak Ridge Nursing Center, Inc. [also referred to as Concerned Care of the Midwest, Inc.] will receive courteous and individualized health care.

The management at this facility has agreed to exercise reasonable care toward the resident as his or her known condition may require, however, this facility is in no sense an insurer of his/her safety or welfare and assumes no liability as such.

Physician shall or may notify family and/or responsible party of change in resident's condition or death. The resident's physician may leave this to the Administrator or Director of Nursing or Charge Nurse.

In their brief, Plaintiffs contend the basis for their breach of contract claims is that Defendants agreed to provide non-medical services. Consequently, they conclude that their claims are independent of any medical malpractice action, and are not barred by the two-year statute of limitations for medical malpractice claims. See, Rowland v. Skaggs Companies, Inc., 666 S.W.2d 770, 774 (Mo. banc 1984).

The definitions provided in sections 538.205(4) and (5) RSMo 1986 ² for medical malpractice include the services Defendant agreed to perform. Defendant is undeniably a "health care provider" as a "long-term care facility ... that provides health care services under the authority of a license or certificate." Section 538.205(4) RSMo 1986. Defendant provides health care services, defined as:

any services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or, if the health care provider is an institution, in the ordinary course of furthering the purposes for which the institution is organized. Professional services shall include, but are not limited to, transfer to a patient of goods or services incidental or pursuant to the practice of the health care provider's profession or in furtherance of the purposes for which an institutional health care provider is organized. Emphasis added.

Section 538.205(5) RSMo 1986. Plaintiffs' claims fall within this definition; therefore, their claims are for malpractice and not for breach of contract.

We have held plaintiffs cannot recover for malpractice claims under a breach of contract theory. Ley v. St. Louis County, 809 S.W.2d 734, 737 (Mo.App.1991); Spruill v. Barnes Hospital, 750 S.W.2d 732, 733 (Mo.App.1988). Plaintiffs' claims sound in tort, and not in contract. Spruill, 750 S.W.2d at 733. However, we have recognized claims for breach of warranty by a physician when he binds himself to a contract to cure. Gage v. Morse, 933 S.W.2d 410, 420 (Mo.App. S.D.1996).

Furthermore, Plaintiffs were not damaged, as alleged. The alleged improper conduct may have injured Krueger, but not Plaintiffs personally. They prayed to be compensated for "their costs herein expended and incurred, for fair and reasonable damages for the aggravating circumstances of deceased's death...." More specifically, they seek a refund for the sums paid for Krueger's care on the theory of breach of the admission contract. Defendant did not guarantee that Krueger would not become sick, injured or die.

Additionally, Plaintiffs alleged Defendant failed to notify them of Tillie Krueger's condition, which would arise to a cause of action. The allegation of failure to notify fails on undisputed facts because Defendant's incident reports, pertaining to both leg fractures, suggest a family member was notified of the specific incident.

Plaintiffs' claims do not arise to a cause of action for breach of contract. The trial court did not err in granting Defendant's motion to dismiss the attempted contract claims. Point denied.

In their second point, Plaintiffs argue that the trial court erred in granting Defendant's motions for summary judgment on Plaintiffs' claims for wrongful death based on negligence and medical malpractice. Plaintiffs argue that the facts and the "sudden onset" doctrine provide a sufficient basis to withstand summary judgment.

Our review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom judgment was entered, according that party the benefit of all reasonable inferences that may be drawn from the record. Id. We will uphold summary judgment where there is no genuine issue as to material facts and the movant is entitled to judgment as a matter of law. Id.

When the moving party offers summary judgment facts which would support judgment as a matter of law, the non-moving party must demonstrate that one or more of the material facts is in fact in dispute. Dunagan by and through Dunagan v. Shalom Geriatric Center, 967 S.W.2d 285, 287 (Mo.App. W.D.1998). The non-moving party must provide summary judgment facts by use of affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue of fact, which would allow them to go to trial. Id.

The elements for a negligence claim are: (1) defendant has a duty to protect the plaintiff from injury; (2) breach of that duty; and (3) an injury suffered by plaintiff which was proximately caused by defendant's breach of duty. Jones v. Ames, 901 S.W.2d 160, 162 (Mo.App. E.D.1995). Plaintiff must offer evidence to support finding both cause in fact and proximate cause. Id. at 163. To satisfy...