Dunagan By and Through Dunagan v. Shalom Geriatric Center, WD

Decision Date28 April 1998
Docket NumberNo. WD,WD
Citation967 S.W.2d 285
PartiesWilliam L. DUNAGAN, By and Through his Guardian and Conservator, Harriet DUNAGAN, Appellant, v. SHALOM GERIATRIC CENTER, Respondent. 54675.
CourtMissouri Court of Appeals

James W. Humphrey, Jr., Anna M. Inch, Kansas City, for appellant.

B.W. Jacob, Suzanna McLarney Teeven, Kansas City, for respondent.

Before ULRICH, C.J., P.J., and LOWENSTEIN and HOWARD, JJ.

ULRICH, Chief Judge, Presiding Judge.

William Dunagan, 1 by and through his Guardian and Conservator, Harriet Dunagan, appeals the partial summary judgment in favor of Shalom Geriatric Center (SGC), a nursing home facility. Mr. Dunagan sought to recover actual and punitive damages from SGC for five separate injuries he sustained while residing at the facility. SGC filed a motion for partial summary judgment asserting that the applicable statute of limitations, section 516.105 2, had run regarding three of the five injuries, and the trial court granted the motion. The trial court entered final judgment on the three claims as provided by Rule 74.01(b). The judgment of the trial court is affirmed.

Mr. Dunagan filed his original petition on June 30, 1995, and his first amended petition on March 19, 1996. The amended petition alleged that SGC was a licensed skilled nursing facility under Chapter 198 and that Mr. Dunagan, who suffered from Alzheimer's disease, entered the facility on December 24, 1991, to receive nursing and health care. The petition further averred that Mr. Dunagan sustained five separate injuries while residing at the facility due to the facility's negligent and careless acts:

(1) April 22, 1992--fracture of left hip

(2) July 13, 1992--fracture of right hip

(3) November 14, 1992--fracture of left hip

(4) January 1995--fracture of left leg and knee

(5) September 20, 1995--fracture of left ankle

Actual and punitive damages were sought under five different legal theories: violation of the Missouri Omnibus Nursing Home Act, sections 198.003 to 198.186, negligence, negligence per se, breach of contract, and breach of fiduciary duty.

On appeal, Mr. Dunagan claims that the trial court erred in granting SGC's motion for partial summary judgment based on the running of the two-year statute of limitations, section 516.105. He contends that section 516.105 was not applicable because his claims were for ordinary negligence rather than for negligence related to health care. Thus, he argues that the five-year statute of limitations of section 516.120(4) applied. Mr. Dunagan also contends on appeal that the "continuing care" exception to section 516.105 tolled the statute of limitations. 3

Appellate review of the grant 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). The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id.

Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. Facts contained in affidavits or otherwise in support of a party's motion for summary judgment are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376. A defending party may establish a right to judgment as a matter of law by showing that there is no genuine dispute as to the existence of each of the facts necessary to support the defendant's properly pleaded affirmative defense. Id. at 381.

Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id.; Reeves v. Keesler, 921 S.W.2d 16, 19 (Mo.App.1996).

Section 516.105 provides the period of limitation for commencing medical malpractice actions against health care providers. It reads, in pertinent part:

All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and 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 (emphasis added). Mr. Dunagan's negligence claims against SGC came within the purview of section 516.105. First, SGC is an entity providing health care services. Chapter 538, which governs tort actions based on improper health care, defines health care services, for purposes of that chapter, 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 heath 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.

§ 538.205(5), RSMo Cum.Supp.1997 (emphasis added). A health care provider is:

any physician, hospital, health maintenance organization, ambulatory surgical center, long-term care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, pharmacist, chiropractor, professional physical therapist, psychologist, physician-in-training, and any other person or entity that provides health care services under authority of a license or certificate.

§ 538.205(4), RSMo Cum.Supp.1997 (emphasis added). Mr. Dunagan alleged and SGC admitted that SGC was a skilled nursing facility governed by the Omnibus Nursing Home Act, sections 198.003 to 198.186. A skilled nursing facility is:

any premises, other than a residential care facility I, a residential care facility II, or an intermediate care facility, which is utilized by its owner, operator or manager to provide for twenty-four hour accommodation, board and skilled nursing care and treatment services to at least three residents.... Skilled nursing care and treatment services are those services commonly performed by or under the supervision of a registered professional nurse for individuals requiring twenty-four hours a day care by licensed nursing personnel including acts of observation, care and counsel of the aged, ill, injured or infirm, the administration of medications and treatments as prescribed by a licensed physician or dentist, or other nursing functions requiring substantial specialized judgment and skill.

§ 198.006(17). A skilled nursing facility is a long-term care facility that requires a valid license issued by the Department of Social Services to operate. § 198.015. It provides twenty-four hour accommodations, board, and skilled nursing care and treatment services in furtherance of its institutional purpose. As a skilled nursing facility, SGC, therefore, is a health care provider that provides health care services under Chapter 538.

Secondly, Mr. Dunagan's claims were subject to the time limitations in section 516.105 because they were for negligence related to health care. Section 516.105 expresses legislative intent to make only a specified class of suits against health care providers subject to the...

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