Devitre v. the Orthopedic Ctr. of Saint Louis Llc

• Decision Date: 28 June 2011
• Docket Number: No. SC 90835.,SC 90835.
• Citation: 349 S.W.3d 327
• Parties: Sohrab DEVITRE, Appellant,v.The ORTHOPEDIC CENTER OF SAINT LOUIS, LLC, Defendant,andMitchell B. Rotman, M.D., Respondent.
• Court: Missouri Supreme Court

349 S.W.3d 327

Sohrab DEVITRE, Appellant,
v.
The ORTHOPEDIC CENTER OF SAINT LOUIS, LLC, Defendant,andMitchell B. Rotman, M.D., Respondent.

No. SC 90835.

Supreme Court of Missouri, En Banc.

June 28, 2011.

[349 S.W.3d 329]

James S. Collins II, Law Office of James S. Collins 11, St. Louis, for Devitre.Robert J. Amsler Jr., and David I. Hares Esq. & Associates, St. Louis, for Rotman and Orthopedic Center.PATRICIA BRECKENRIDGE, Judge.

Sohrab Devitre appeals the judgment of the St. Louis County circuit court dismissing his lawsuit with prejudice for failure to file a health care affidavit pursuant to section 538.225.¹ Mr. Devitre argues that the trial court abused its discretion in dismissing the lawsuit because he was not a patient of Mitchell B. Rotman, M.D., or of The Orthopedic Center of St. Louis, LLC, and the independent medical examination conducted by Dr. Rotman did not create a physician-patient relationship that would trigger the requirement in section 538.225 to file a health care affidavit.

Dr. Rotman, in his capacity as a health care provider, conducted an independent medical examination on Mr. Devitre. An independent medical examination is a health care service. Recipients of an independent medical examination are patients of the physician for the limited purpose of conducting the examination. Therefore, a physician-patient relationship exists and triggers the requirement in section 538.225 for the filing of a health care affidavit. Additionally, Mr. Devitre's petition states a claim for medical malpractice, not the intentional torts of assault and battery. Therefore, the trial court did not err in dismissing Mr. Devitre's lawsuit for failure to file a health care affidavit. The judgment is affirmed.²

Factual and Procedural Background

Sohrab Devitre was involved in an automobile accident in Jefferson County in August 2000. He filed suit against the other driver in the accident. During discovery in that lawsuit, the defendant requested that Mr. Devitre have an independent

[349 S.W.3d 330]

medical evaluation conducted by Dr. Rotman pursuant to Rule 60.01(a) to assess his injuries allegedly arising from the automobile accident. Mr. Devitre consented to the independent medical examination. Dr. Rotman, a physician who practices at The Orthopedic Center of St. Louis, LLC, examined Mr. Devitre on August 21, 2006. During the examination, which was secretly tape-recorded by Mr. Devitre, Dr. Rotman moved Mr. Devitre's right arm through a range of motions to assess his injuries. The personal injury case arising from the automobile accident went to trial, and the jury entered a verdict in favor of Mr. Devitre for $18,000.

On July 22, 2008, Mr. Devitre sued Dr. Rotman for personal injuries caused during the August 21, 2006, independent medical examination and The Orthopedic Center on a theory of respondeat superior. He also sought punitive damages against both Dr. Rotman and The Orthopedic Center. In his petition, he alleged that Dr. Rotman intentionally assaulted and battered him by forcing him to move his arm and shoulder joints past their limited range of motion, causing him severe pain and physical injury. Mr. Devitre expressly stated that he was filing a cause of action for assault and battery and not a medical negligence claim. Mr. Devitre further alleged “[t]hat at no time was [Mr. Devitre] ever a patient of [Dr. Rotman]” and “[t]hat at no time did [Mr. Devitre] ever seek any medical treatment whatsoever of any nature from defendants.”

The St. Louis County circuit court dismissed the case without prejudice because Mr. Devitre failed to file a health care affidavit. Mr. Devitre refiled his lawsuit within the time permitted by section 516.230, RSMo 2000, the one-year savings statute. His second petition was virtually identical to his first petition.

In his answer, Dr. Rotman admitted that Mr. Devitre was not a patient and he did not seek medical treatment. Rather, Dr. Rotman alleged that Mr. Devitre presented himself for an independent medical examination. He pleaded as a defense that, because he is a health care provider, he intended to rely on chapter 537, which covers tort actions generally, and chapter 538, which covers tort actions based on improper medical care.

Mr. Devitre filed a motion seeking a trial court ruling that the defendants could not rely on the benefits of chapters 537 and 538, because Mr. Devitre was never a patient of Dr. Rotman or The Orthopedic Center. Both Dr. Rotman and The Orthopedic Center moved to dismiss the lawsuit for Mr. Devitre's failure to file the health care affidavit as required by section 538.225. The Orthopedic Center also moved to dismiss for insufficient service of process. The court overruled Mr. Devitre's motion to preclude Dr. Rotman and The Orthopedic Center from relying on favorable provisions in chapters 537 and 538, sustained The Orthopedic Center's motion to dismiss for insufficient service, and sustained the defendants' joint motion to dismiss for failure to file a health care affidavit. The trial court dismissed Mr. Devitre's action with prejudice.³ Mr. Devitre

[349 S.W.3d 331]

appealed. After opinion by the court of appeals, this Court granted transfer. Mo.Const. art. V, sec. 10.Standard of Review

This Court reviews a trial court's grant of a motion to dismiss de novo. City of Lake Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010). This Court reviews the petition “in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Id. In so doing, a plaintiff's averments are taken as true and all reasonable inferences are liberally construed in favor of the plaintiff. Id. This Court will not consider matters outside the pleadings. Id.

Likewise, “[s]tatutory interpretation is an issue of law that this Court reviews de novo.” Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683, 686 (Mo. banc 2010). This Court's role in interpreting statutes is to discern the intent of the legislature from the plain and ordinary meaning of the language used and to give effect to that intent, if possible. Id.

Discussion

Mr. Devitre raises one issue on appeal. He contends that the trial court abused its discretion by dismissing his lawsuit for failure to file a health care affidavit as required by section 538.225. He claims that statute does not govern his cause of action because he was not a patient of Dr. Rotman or The Orthopedic Center and he never received health care services from either of them. In arguing that section 538.225 is inapplicable, he relies on the definition of “health care services” in section 538.205, which limits its scope to “services that a health care provider renders to a patient in the ordinary course of the health care provider's profession.”

Section 538.225 requires a plaintiff to file an affidavit attesting to the merits of any action against a health care provider. The relevant portions of section 538.225 state:

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 the plaintiff's attorney shall file an affidavit with the court stating that he or she 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.

* * *

5. 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 for a period of time not to exceed an additional ninety days.

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

(Emphasis added). The court of appeals has addressed when the statute mandates the plaintiff to file a health care affidavit. Under those cases, the resolution of the issue of whether a party must file a health care affidavit depends on whether “the relationship of the parties is that of health

[349 S.W.3d 332]

care provider and recipient and if the ‘true claim’ relates only to the provision of health care services.” Gaynor v. Washington Univ., 261 S.W.3d 650, 653 (Mo.App.2008) (internal citations omitted). This analysis applies regardless of how the plaintiff characterizes his or her claims. J.K.M. v. Dempsey, 317 S.W.3d 621, 626–27 (Mo.App.2010) (pleading breach of fiduciary duty, assault, and battery); Mello v. Giliberto, 73 S.W.3d 669, 679 (Mo.App.2002) (pleading medical malpractice, battery, lack of informed consent, and wrongful death); Vitale v. Sandow, 912 S.W.2d 121, 122 (Mo.App.1995) (pleading libel); St. John's Reg'l Health Ctr., Inc. v. Windler, 847 S.W.2d 168, 171 (Mo.App.1993) (pleading false imprisonment); Jacobs v. Wolff, 829 S.W.2d 470, 472 (Mo.App.1992) (pleading tortious interference with contract, negligent infliction of emotional distress, and negligence). See also Robinson v. Health Midwest Dev. Grp., 58 S.W.3d 519, 522 (Mo. banc 2001) (taking a substance-over-form approach to determining when a claim is one of medical malpractice and, therefore, the medical malpractice statute of limitation applies).

Therefore, the first step in this case is to determine if the relationship between Dr. Rotman and Mr. Devitre is one of health care provider and patient that would trigger the requirement to file a health care affidavit. Gaynor, 261 S.W.3d at 653. In an action against a physician for medical malpractice, it is essential to show that there was a...