Cook v. Parkland Health Ctr.

• Docket Number: ED 111044
• Decision Date: 13 June 2023
• Citation: Cook v. Parkland Health Ctr., 674 S.W.3d 65 (Mo. App. 2023)
• Parties: Jimmy D. COOK, Appellant, v. PARKLAND HEALTH CENTER, et al., Defendants, and Dr. Lawrence Brown, et al., Respondents.
• Court: Missouri Court of Appeals

674 S.W.3d 65

Jimmy D. COOK, Appellant,

v. PARKLAND HEALTH CENTER, et al., Defendants,andDr. Lawrence Brown, et al., Respondents.

No. ED 111044

Missouri Court of Appeals, Eastern District, SOUTHERN DIVISION.

FILED: June 13, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2023

Application for Transfer to Supreme Court Denied September 26, 2023

For Appellant: Paul A. Maddock, 8235 Forsyth Blvd., Ste. 1100, St. Louis, MO 63105.

For Respondents: Thomas W. Collins III, 219 Kingshighway, P.O. Box 805, Sikeston, MO 63801.

KURT S. ODENWALD, Judge

Introduction

Jimmy D. Cook ("Cook") appeals from the circuit court's dismissal of respondents Dr. Lawrence R. Brown ("Dr. Brown") and Dr. Michael Clippard ("Dr. Clippard") from Cook's medical malpractice action. Cook raises six points on appeal. Five points allege the circuit court erred in granting Dr. Brown's motion to dismiss. Points One, Three, and Four assert that a signed affidavit is not required to comply with the merit-certifying requirements of Section 538.225¹ for medical malpractice claims, thus the circuit court erred in dismissing Cook's claim against Dr. Brown on the grounds that Cook failed to file a signed affidavit prior to the running of the statute of limitations. Point Two claims that the circuit court erred in dismissing his claim against Dr. Brown because it erroneously denied his request for a nunc pro tunc order to correct the missing signature. In his fifth point, Cook contends that requiring the filing of a signed affidavit under Section 538.225 is unconstitutional as applied to him. In his sixth point, Cook argues that the circuit court erred in dismissing his claim against Dr. Clippard because the claim was for ordinary negligence, not medical malpractice, and therefore, the filing of an affidavit of merit under Section 538.225 was not required.

Because an affidavit must be signed by the affiant to be effective, an affidavit of merit must be signed to comply with Section 538.225. Therefore, we deny Points One, Three, and Four. Because the missing signature was not a clerical error in the circuit court's judgment and a nunc pro tunc order to correct a missing signature cannot modify a judgment already rendered, the circuit court could not grant the relief Cook sought, and we deny Point Two. Similarly, we deny Point Five because requiring a signed affidavit under Section 538.225 is not unconstitutional in that it does not create an unreasonable barrier to the courts or infringe on a medical-malpractice plaintiff's right to a trial by a jury. Finally, because Cook's claim against Dr. Clippard sounded in medical negligence, and because a provider-patient relationship existed and necessitated expert medical testimony, an affidavit of merit was required, and we deny Point Six. Accordingly, we affirm the circuit court's judgment.

Factual and Procedural History

On August 21, 2018, in the emergency room at Parkland Health Center in Farmington, Missouri, Nurse Practitioner Kay Lynn Day ("Day") treated Cook for an eye injury. Cook alleged that the care provided by Day amounted to medical malpractice because she should have immediately referred him to an ophthalmologist. Cook is now completely blind in his left eye. Dr. Brown was the attending emergency room physician on the night Cook was treated. Dr. Clippard was Day's supervisor through a collaborative practice agreement, which allowed Dr. Clippard to delegate certain medical treatments to Day. Neither Dr. Brown nor Dr. Clippard treated Cook.

Cook originally filed suit against Dr. Brown, among other defendants, in August 2020. The circuit court dismissed the petition for failure to file a statutorily compliant affidavit pursuant to Section 538.225.² Cook then refiled suit on May 24, 2021, bringing a petition ("Petition") against Dr. Brown and Dr. Clippard, among other defendants. Cook filed a purported affidavit of merit (the "Affidavit") for the claim against Dr. Brown on August 19, 2021.

After the time for filing an affidavit of merit had passed, Dr. Clippard moved to dismiss the Petition's claim against him. Dr. Clippard argued that Cook did not comply with Section 538.225 because he failed to file an affidavit of merit. Dr. Brown also moved to dismiss the Petition's claim against him, arguing that the Affidavit was statutorily noncompliant because it was unsigned. Cook opposed both motions and moved for the circuit court to allow him to file a signed affidavit out of time under Rule 55.03³ or, alternatively, to enter a nunc pro tunc order accepting the Affidavit corrected with a signature.

The circuit court held a motion hearing on Cook's nunc pro tunc motion and Dr. Brown's and Dr. Clippard's motions to dismiss. At the hearing, Dr. Brown argued that Missouri law clearly requires affidavits to be signed to be effective, and thus the unsigned Affidavit mandates dismissal of Cook's claim against him. Cook maintained that Section 538.225 does not require a signed affidavit and that the Affidavit was otherwise sufficient. Dr. Brown further argued that a nunc pro tunc order was not appropriate because it is intended to correct clerical errors in the record or in judgments, not affidavits.

Regarding Dr. Clippard, Cook argued that he sued for ordinary negligence, not medical malpractice, so an affidavit of merit was not required. In reply, Dr. Clippard argued that the allegations that he failed to train and/or supervise Day and failed to establish appropriate protocols for her treatment of eye injuries sounded in medical malpractice. Dr. Clippard maintained that establishing whether he breached any duty to Cook under those allegations would require expert medical testimony and necessitate an affidavit of merit.

Following the hearing, the circuit court granted both Dr. Brown's and Dr. Clippard's motions and dismissed the Petition's claims against both physicians. The circuit court denied Cook's nunc pro tunc motion to correct the lack of signature on the Affidavit. Cook now appeals.⁴

Points on Appeal

Cook raises six points on appeal. In Points One through Five, respectively, Cook argues the circuit court erred in dismissing the Petition's claim against Dr. Brown for the following reasons: (1) the Affidavit was statutorily compliant because Section 538.225 does not require a signed affidavit; (2) the circuit court erroneously refused to grant Cook's nunc pro tunc motion, which would have corrected the clerical error of no signature; (3) Dr. Brown was not prejudiced by the unsigned Affidavit because it met all written requirements under the statute; (4) the authorities on which Dr. Brown relied in favor of dismissal are either not applicable or no longer good law; and (5) requiring a party to follow "unwritten" statutory requirements is unconstitutional because it creates an unreasonable barrier to the courts for medical negligence plaintiffs. In Point Six, Cook argues the circuit court erred in dismissing the Petition's claim against Dr. Clippard because the claim was for ordinary negligence, not medical malpractice, in that it alleged he failed to adequately supervise Day.

Standard of Review

"Appellate courts review a [circuit] court's grant of a motion to dismiss de novo." Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 413 (Mo. banc 2014) (citing Ward v. W. Cnty. Motor Co., Inc., 403 S.W.3d 82, 84 (Mo. banc 2013) ). We review the petition "in an almost academic manner to determine if the plaintiff has alleged facts that meet the elements of a recognized cause of action or of a cause that might be adopted in that case." Id. at 414 (internal citation omitted). "The facts alleged in the petition are assumed to be true and are construed liberally in favor of the plaintiff." Id. (citing Ward, 403 S.W.3d at 84 ).

Further, the interpretation of Missouri statutes and rules is a question of law that this Court reviews de novo. Kivland v. Columbia Orthopaedic Grp., LLP, 331 S.W.3d 299, 311 (Mo. banc 2011) ; see State ex rel. Country Mut. Ins. Co. v. May, 620 S.W.3d 96, 99 (Mo. banc 2021) (noting we apply the same standards for interpreting statutes to interpreting rules of civil procedure). Additionally, "[c]hallenges to a statute's constitutional validity are also subject to de novo review." Giudicy v. Mercy Hosps. E. Cmtys., 645 S.W.3d 492, 496 (Mo. banc 2022).

Discussion

I. Point Six—Dr. Clippard

We first address Point Six as the remaining points all pertain to Dr. Brown. Cook argues the circuit court erroneously dismissed Dr. Clippard because the claim against him was for ordinary negligence and not medical malpractice.

A. Analysis—Point Six

"The application of Section 538.225 is not controlled by the manner in which the plaintiff characterizes the claim in the petition." Spears v. Freeman Health Sys., 403 S.W.3d 616, 618 (Mo. App. S.D. 2012). Instead, "a pleading is judged by its subject and substance of its recitals and not its rubric or caption." Id. at 619 (quoting Devitre v. Orthopedic Ctr. of St. Louis, LLC, 349 S.W.3d 327, 334 (Mo. banc 2011) ). Missouri courts apply a two-part test to determine whether the plaintiff must file an affidavit of merit required by Section 538.225. Devitre, 349 S.W.3d at 331–32. First, a court must determine whether a healthcare provider-patient relationship existed between the parties. Id. Second, a court determines whether the "true claim relates only to the provision of health care services." Id. (internal quotation omitted).

Here, the Petition alleges that Dr. Clippard should have properly trained and/or supervised Day regarding her treatment of eye injuries to prevent the allegedly negligent care Cook received. Cook never filed an affidavit of merit for his claim against Dr. Clippard. Dr. Clippard argued in his motion to dismiss that Cook's failure to submit a Section 538.225 affidavit was grounds for dismissal. Cook countered that the claim was for negligent supervision, not medical malpractice, and therefore an affidavit was not required.

This Court is not...