Burns v. Elk River Ambulance

• Decision Date: 18 September 2001
• Docket Number: SD23656
• Citation: 55 S.W.3d 466
• Parties: Madonna Burns, Appellant/Respondent, v. Elk River Ambulance, Inc., St. John's Regional Medical Center, Respondents, Joplin Emergency Medical Services, Respondent/Cross-Appellant. 23656 and 23738 Missouri Court of Appeals Southern District 0
• Court: Missouri Court of Appeals

Madonna Burns, Appellant/Respondent v Elk River Ambulance, Inc., St. John's Regional Medical Center, Respondents, Joplin Emergency Medical Services, Respondent/Cross-Appellant

23656 and 23738

Missouri Court of Appeals Southern District

09/18/2001

Appeal From: Circuit Court of Jasper County, Hon. William C. Crawford

Counsel for Appellant: Glenn R. Gulick, Jr., and Edward J. Hershewe

Counsel for Respondent: M. Douglas Harpool, Michael J. Cordonnier, Timothy M. Aylward, Sarah Yehle Fulkerson, William J. Lasley and Peter J. Lasley

Opinion Summary: None

Shrum, P.J., and Barney, C.J., concur.

Kerry L. Montgomery, Judge

This medical negligence case centers on the death of Clifton Burns (Decedent), an 18-year-old man who suffered a fatal asthma attack. Madonna Burns (Plaintiff), decedent's mother, brought suit against Elk River Ambulance, Inc. (Elk River), a basic life-support ambulance, Joplin Emergency Medical Services (JEMS), an advanced life-support ambulance, and the receiving hospital, St. John's Regional Medical Center of Joplin (St. John's).¹ Plaintiff contended the defendants were negligent and that their negligence caused the death of her son.

Decedent's death occurred after an asthma attack in Sarcoxie, Missouri. Initially, Decedent was transported by Elk River ambulance from Sarcoxie toward Joplin on Interstate 44. The Elk River ambulance was manned by two Emergency Medical Technicians (EMTs). The EMTs determined en route that decedent was critically ill. They called their dispatcher requesting an "intercept" by an advanced life-support ambulance. JEMS' ambulance, manned by two paramedics, met the Elk River ambulance just west of the Carthage exit on Interstate 44. At this intercept point, JEMS' paramedics administered an Albuterol Sulfate breathing treatment. Eventually, the trip resumed to St. John's with JEMS paramedics on board the Elk River ambulance. One of Plaintiff's witnesses testified that the Elk River ambulance was stopped 15 to 20 minutes at the intercept point. Decedent had stopped breathing upon arrival at the hospital. Although his heart was beating as Decedent was unloaded, his heart stopped beating upon arrival at the emergency room. Decedent was placed on life support systems, but two days later the decision was made to disconnect him. He died shortly thereafter.

The jury returned a verdict finding JEMS 100 percent at fault and awarded Plaintiff $1,000,000 in past noneconomic damages and $500,000 in future noneconomic damages. Pursuant to section 538.210,² the statute limiting noneconomic damages, the trial court reduced the award to $528,000, applying the monetary limitations for 2000, the year of the trial, rather than 1995, the year of the death. The trial court ordered that one-third of the $528,000 or $175,824³ should be attributable to future damages because the jury awarded one-third of the total damages as future noneconomic damages. At JEMS' request, in accordance with section 538.220.2, the trial court then ordered that $55,211.40 of the $175,824 be paid in five equal yearly installments and bear interest at the rate of 6.40 percent per annum. The balance of the judgment, $472,788.60, was denominated as immediately due and payable.

JEMS and Plaintiff appeal. Additional facts are discussed as relevant to each point relied on.JEMS' APPEAL No. 23656

JEMS's first point claims the judgment is void because the trial court lacked subject matter jurisdiction when Plaintiff failed to timely file the affidavit required by section 538.225. JEMS asserts that "the filing of such affidavit is a condition precedent to the trial court assuming jurisdiction over a medical malpractice cause of action."

Initially we note that appellate review is limited to those issues presented in an appellant's points, Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405 (Mo. 1964); Don L. Tullis & Associates, Inc. v. Gover, 577 S.W.2d 891, 893 (Mo.App. 1979), and our opinion on this point should be so viewed.

In its entirety, section 538.225 provides:

1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or his attorney shall file an affidavit with the court stating that he has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.

2. The affidavit shall state the qualifications of such health care providers to offer such opinion.

3. A separate affidavit shall be filed for each defendant named in the petition.

4. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended.

5. If the plaintiff or his attorney fails to file such affidavit the court may, upon motion of any party, dismiss the action against such moving party without prejudice.

Plaintiff filed her petition on November 22, 1996. Neither Plaintiff nor her attorney filed an affidavit as required by section 538.225 within ninety days after the filing date. No request was made to extend the deadline for filing the affidavit. On January 22, 1999, JEMS filed a motion to dismiss Plaintiff's petition without prejudice pursuant to section 538.225.5. The motion was denied on January 26, 1999.⁴ Trial commenced on January 10, 2000.

"The construction of a statute is a question of law." Staley v. Missouri Director of Revenue, 623 S.W.2d 246, 248 (Mo. banc 1981). "It is a basic rule of statutory construction that words should be given their plain and ordinary meaning whenever possible." State ex rel. Maryland Heights Fire Protection Dist. v. Campbell, 736 S.W.2d 383, 387 (Mo. banc 1987). "Courts look elsewhere for interpretation only when the meaning is ambiguous or would lead to an illogical result defeating the purpose of the legislature." Id. Section 538.225.4 does not require the filing of an affidavit until "no later than ninety days after the filing of the petition." This section also allows the court to extend the filing deadline for good cause shown. Plainly, the statute does not require the affidavit to be filed simultaneously with the petition.

Subject matter jurisdiction means the authority to determine the general question involved. Beavers v. Empire District Elec. Co., 944 S.W.2d 249, 250 (Mo.App. 1997). A court has subject matter jurisdiction if the petition states a claim belonging to the general class of cases over which the court's authority extends. Id. Circuit courts have original jurisdiction over all cases and matters, civil and criminal. Section 478.070.

In this case, Plaintiff filed her medical negligence case in the Circuit Court of Jasper County, Missouri. It is undisputed that Plaintiff's cause of action falls within the general class of cases over which that court's authority extends. Therefore, the court had subject matter jurisdiction over this case on November 22, 1996, the filing date of Plaintiff's petition. Nothing in the statute suggests that a timely filed affidavit is a "condition precedent" to the court acquiring subject matter jurisdiction over Plaintiff's case nor does the statute suggest that somehow the court loses jurisdiction in the absence of a timely filed affidavit.

JEMS cites no caselaw supporting its point. Our independent research reveals no such authority. JEMS has failed to carry its burden of demonstrating the error of the trial court's judgment. See Delf v. Cartwright, 651 S.W.2d 622, 624 (Mo.App. 1983). Point denied.⁵

In Point II, JEMS claims trial court error in overruling its motion for new trial because juror Melissa Shaffer failed to disclose in voir dire that her husband Jeffrey Shaffer had been a plaintiff in a medical malpractice case resulting from the wrongful death of his mother. JEMS asserts the trial court's action denied JEMS its right to an impartial panel of twelve jurors under article I, section 22(A), Missouri Constitution.

During voir dire, Melissa Shaffer never disclosed that her husband had been a plaintiff in a medical malpractice case resulting from the death of his mother in June 1988. JEMS had no knowledge of this fact until the trial concluded. Melissa Shaffer was among the nine jurors who joined in the verdict against JEMS.

No evidentiary hearing was held on this issue. Instead, JEMS attached to its suggestions in support the motion for new trial a certified copy of the Shaffers' marriage license showing they married on December 29, 1988, and a certified copy of the medical malpractice petition in which Jeffrey Shaffer was a plaintiff. This suit was filed June 26, 1991.

The trial court made no findings on this issue in denying the motion for new trial. Based on the record presented, we assume the trial court found that no evidence supported JEMS' claim of intentional nondisclosure.

"The determination of nondisclosure is left to the discretion of the trial judge whose ruling is disturbed only by showing abuse of discretion." Wingate v. Lester E. Cox Medical Center, 853 S.W.2d 912, 917 (Mo. banc 1993). The trial court abuses its discretion if its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. If reasonable individuals can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Id.

Doyle v. Kennedy Heating and Service, Inc., 33 S.W.3d 199, 201 (Mo.App. 2000).

A potential juror's nondisclosure can be intentional or unintentional.

Intentional nondisclosure occurs: 1) where there...