Giudicy v. Mercy Hosps. E. Cmtys.

• Decision Date: 14 June 2022
• Docket Number: SC 99249
• Citation: Giudicy v. Mercy Hosps. E. Cmtys., 645 S.W.3d 492 (Mo. 2022)
• Parties: Alfred J. (A.J.) GIUDICY, Appellant, v. MERCY HOSPITALS EAST COMMUNITIES f/k/a St. John's Mercy Medical Center, and Michael J. Chehval, M.D., Respondents.
• Court: Missouri Supreme Court

645 S.W.3d 492

Alfred J. (A.J.) GIUDICY, Appellant,

v.MERCY HOSPITALS EAST COMMUNITIES f/k/a St. John's Mercy Medical Center, and Michael J. Chehval, M.D., Respondents.

No. SC 99249

Supreme Court of Missouri, en banc.

Opinion issued June 14, 2022

Giudicy was represented by Patrick J. Hagerty of Gray, Ritter & Graham PC in St. Louis, (314) 241-5620.

The hospital was represented by James C. Thoele and Michael D. Griffith of Brinker & Doyen LLP in Clayton, (314) 863-6311; and the doctor was represented by Teresa M. Young and David P. Ellington of Brown & James PC in St. Louis, (314) 421-3400.

Robin Ransom, Judge

Alfred J.(A.J.)Giudicy appeals the circuit court's judgment dismissing his medical malpractice case without prejudice for failure to file an affidavit of merit within 180 days pursuant to section 538.225.¹Giudicy argues section 538.225 violates multiple provisions of the Missouri Constitution.He also contends the defense of failure to file an affidavit of merit was waived and that he substantially complied with the statute.This Court rejects those arguments and affirms the circuit court's judgment.

Background

Giudicy was born February 5, 1997, at Mercy Hospitals East Communities f/k/a St. John's Mercy Medical Center ("Mercy Hospital") with a rare congenital condition known as epispadias and associated bladder exstrophy.Between his birth and May 1999, Giudicy underwent four surgeries related to the conditions.The surgeries were performed by Michael J. Chehval, M.D., at Mercy Hospital.

In January 2014, Giudicy, through his next friend and mother, sued Mercy Hospital and Dr. Chehval (collectively, the "medical providers").The lawsuit alleged the treatment rendered by the medical providers was negligent in several respects and resulted in significant injuries and damages.In February 2014, pursuant to section 538.225, Giudicy filed two affidavits of merit, one related to Mercy Hospital and one related to Dr. Chehval.In each affidavit, Giudicy's counsel averred he had obtained a written opinion from a legally qualified health care provider, Moneer K. Hanna, M.D., that the medical provider at issue failed to use such care as a reasonably prudent and careful health care provider would have used under similar circumstances and that such failure caused or directly contributed to cause damage to Giudicy.Discovery proceeded, including depositions of Dr. Hanna.An October 2018 discovery and scheduling order set the cause for trial during the week of May 28, 2019.On May 24, 2019, Giudicy voluntarily dismissed the action without prejudice.

On January 27, 2020, Giudicy filed a second action, raising the same allegations against the medical providers.Dr. Chehval filed his answer on April 27, 2020.Mercy Hospital filed its answer the following day.Dr. Chehval pleaded that he"intends to rely upon and obtain the benefits of provisions of R.S.Mo. Chapter 538, including but not limited to Section[s] 538.205, 538.210, 538.215, 538.220, 538.225, 538.230 and/or 538.235 as each may pertain to this cause of action, including a cap on non-economic damages."Mercy Hospital's answer stated, "For further answer and defense, Defendant intends to rely on the rights and benefits of R.S.Mo. chapters 537 and 538 including, but not limited, Sections 537.060,537.067,538.205,538.210,538.215,538.220,538.225,538.228,538.229,538.232,538.235,538.300, and538.305, as each may pertain to this cause of action."

On August 12, 2020—198 days after filing the petition—Giudicy filed a motion for leave to file the affidavits of merit.He attached affidavits, which again listed Dr. Hanna as the legally qualified health care provider who provided the opinion.Giudicy stated, "Good cause exists to enlarge the time stated in the statute, and it is within the Court's inherent powers to grant leave to file."He also attacked the constitutional validity of section 538.225.

On September 1, 2020, Dr. Chehval filed a motion to dismiss for Giudicy's failure to file the affidavits of merit within the statutorily required 180-day timeframe.Mercy Hospital joined the motion on October 7, 2020.Giudicy countered that the medical providers waived the affidavit-of-merit defense.The circuit court conducted a hearing on the motions after receiving memoranda in support of the parties’ positions.It overruled the motion for leave to file the affidavits of merit and dismissed the case without prejudice pursuant to section 538.225.

Giudicy filed a motion to reconsider, vacate, or set aside the order and judgment of the circuit court.Alternatively, Giudicy sought clarification about whether the circuit court had considered and overruled his motion for relief under Rule 44.01(b), the rule permitting a court to enlarge the period of time for taking an act under certain circumstances.The circuit court overruled the motion and declined to analyze how it would rule pursuant to Rule 44.01(b), finding it did not apply.

Giudicy appeals.²

Standard of Review

When a circuit court sustains a motion to dismiss, this Court employs de novo review.Lang v. Goldsworthy , 470 S.W.3d 748, 750(Mo. banc 2015).Challenges to a statute's constitutional validity are also subject to de novo review.Id.

Analysis

Giudicy raises six points, arguing the circuit court erred in sustaining the motions to dismiss and in overruling his motions for leave to file the affidavits of merits and post-judgment motions because (1)the court applied a statute governing procedure instead of following Rule 44.01, in violation of the constitutional grant of power for this Court to establish procedural rules; (2)section 538.225 violates the separation of powers between the legislative and judicial branches of government; (3)House BillNo. 393("HB 393"), which was enacted in 2005 and amended section 538.225, violates the constitutional requirement that bills have a clear title and contain no more than a single subject; (4)section 538.225 is impermissibly retrospective in application; (5) the medical providers waived the defense of failure to file the affidavits of merit; and (6)he substantially complied with section 538.225 because, except for the late filing, the affidavits complied with the statute.

The affidavit in section 538.225 is generally known as an affidavit of merit.Hink v. Helfrich , 545 S.W.3d 335, 337(Mo. banc 2018).Section 538.225.1 provides,

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.

Prior to the 2005legislation, the circuit court was permitted to dismiss the action if the affidavit of merit was not filed within 90 days.Section 538.225.5, RSMo 2000("If the plaintiff or his attorney fails to file such affidavit the courtmay , upon motion of any party, dismiss the action against such moving party without prejudice."(emphasis added)).Section 538.225 did not have a maximum time limit for filing the affidavit of merit prior to the 2005amendment.Section 538.225.4, RSMo 2000("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.").

The current iteration of section 538.225 arises from HB 393, enacted in 2005.Section 538.225.5 sets forth a timeframe in which the affidavit of merit must be filed, stating it "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.""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."Section 538.225.6.

Section 538.225 serves "to cull at an early stage of litigation suits for negligence damages against health care providers that lack even color of merit" and "protect the public and litigants from the cost of ungrounded medical malpractice claims."Mahoney v. Doerhoff Surgical Servs., Inc. , 807 S.W.2d 503, 507(Mo. banc 1991).It also prevents a plaintiff from threatening a medical provider with a groundless claim in order to force a settlement in lieu of the high cost of defense otherwise required.Id. at 508.

I.Constitutional Claims

A.Inconsistency with Supreme Court's Power to Establish Procedural Rules

Giudicy contends the circuit court erred because it applied a statute governing procedure instead of following Rule 44.01.The circuit court adhered to the 180-day deadline in section 538.225.5.According to Giudicy, Rule 44.01(b) would have permitted the court to extend the deadline by which the affidavit of merit needed to be filed.He claims the circuit court's application of a statute governing procedure, instead of following Rule 44.01, violated article V, section 5 of the Missouri Constitution, which provides, in relevant part, "The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law."

Rule 44.01(b) provides, in full:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally

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