Hoover v. Health

• Decision Date: 03 July 2012
• Docket Number: No. ED97495,ED97495
• Citation: Hoover v. Health, No. ED97495 (Mo. App. Jul 03, 2012)
• Parties: RICHARD HOOVER, Individually, and as Class Representative, Plaintiff/Appellant, v. MERCY HEALTH, d/b/a MERCY HEALTH SYSTEM; MERCY HOSPITALS EAST COMMUNITIES, d/b/a ST. JOHN'S MERCY MEDICAL CENTER and/or ST. JOHN'S MERCY HEALTH SYSTEM; and ST. JOHN'S MERCY MEDICAL CENTER, d/b/a MERCY HOSPITALS EAST COMMUNITIES and/or ST. JOHN'S MERCY HEALTH SYSTEM, Defendants/Respondents.
• Court: Missouri Court of Appeals

RICHARD HOOVER, Individually, and as Class Representative, Plaintiff/Appellant, v. MERCY HEALTH, d/b/a MERCY HEALTH SYSTEM; MERCY HOSPITALS EAST COMMUNITIES d/b/a ST. JOHN'S MERCY MEDICAL CENTER and/or ST. JOHN'S MERCY HEALTH SYSTEM and ST. JOHN'S MERCY MEDICAL CENTER, d/b/a MERCY HOSPITALS EAST COMMUNITIES and/or ST. JOHN'S MERCY HEALTH SYSTEM, Defendants/Respondents.

No. ED97495

Missouri Court of Appeals Castern District DIVISION TWO

Dated: July 3, 2012

Appeal from the Circuit Court

of St. Louis County

Honorable James R. Hartenbach

Plaintiff, a physician who sought and obtained health care at St. John's Mercy Medical Center, appeals from a judgment dismissing for failure to state a claim his individual and class action lawsuit seeking actual and punitive damages under the Missouri Merchandising Practices Act (MMPA), section 407.010 to 407.130 RSMo (2000),¹ against the defendant corporations, who own, operate, or do business as St. John's Mercy Medical Center. Plaintiff asserts that he sufficiently alleged a claim under the MMPA and adequately alleged that he sustained an ascertainable loss of money as a result of defendants' unfair billing practices because defendantscharged him more than the reasonable value of the goods and services that he received. We affirm.

PROCEDURAL BACKGROUND

On June 27, 2011, plaintiff, Richard Hoover, M.D., individually and as a class representative, filed a lawsuit to recover actual and punitive damages under the MMPA against defendant Mercy Health on his claim that Mercy Health falsely and fraudulently charged him for goods and services provided during his 2009 treatment at St. John's Mercy Medical Center. Mercy Health filed a motion to dismiss on the grounds that plaintiff sued the wrong entity and failed to state a claim. Plaintiff filed a reply to the motion to dismiss and a memorandum of law in opposition to the motion to dismiss, and subsequently filed an amended petition that added Mercy Hospitals East Communities (Hospitals East) and St. John's Mercy Medical Center (St. John's) as defendants, rephrased the allegations to include all defendants, and amended his damage allegation.

In his amended petition, which is the subject of this appeal, plaintiff alleged that he was a former Professor and Chairman of the Pathology Department at St. Louis University School of Medicine. He alleged that defendants violated the MMPA by using fraud and deception in the sale of medical goods and services to the public; that "defendants require patients in need of medical care and treatment to enter into an express or implied contract that requires the patient to pay unspecified, undocumented and undetermined charges as a condition for receiving medical goods and services;" that defendants' "standard charges" for medical goods and services were unreasonable; and that defendants accept less than their "standard charges" from Medicare and medical insurance carriers. He also alleged that the "best evidence" of the reasonable value ofdefendants' goods and services is what defendants accept from Medicare and insurance carriers, and because defendants' "standard charge" is higher than this amount, it is unreasonable.

For his representative claim, plaintiff alleged that he underwent medical care and treatment at St. John's in 2009, and that defendants issued a bill to him that was false and fraudulent because it was based on "standard charges" that were unreasonable in that they exceeded the charges for the same goods and services sold to Medicare and insured patients. He alleged that he was damaged because he "paid more for the goods sold and the services rendered than the reasonable value of the goods and services."

Defendants thereafter filed a motion to dismiss plaintiff's amended petition for failure to state a claim. In their motion, defendants set out certain factual matter, including that plaintiff had oral surgery at St. John's on March 10, 2009; that St. John's billed plaintiff $17,337 for medical goods and services; and that plaintiff "paid $1,000 to St. John's collection agency on June 17, 2011 and paid an additional $4,300 to St. John's collection agency on June 27, 2011." Among the grounds for their motion, defendants asserted that plaintiff had not alleged facts showing that he incurred any ascertainable loss. They attached to their motion a copy of a contract dated March 10, 2009, signed by plaintiff as the patient, and titled "Release of Information, Assignment of Benefits, and Financial Responsibility" (hereinafter, "the contract"). They further attached a newspaper article and a document titled "NCO Financial Systems, Inc. - Midwest Debtor Notes" that listed actions on plaintiff's account from November 2009 through August 2011, and showed a $1,000.00 payment on June 17, 2011, and a $4,300.00 payment on June 24, 2011.

Plaintiff did not file a new memorandum in opposition to the motion to dismiss the amended petition, but in his reply to the original motion to dismiss, he acknowledged theexistence of the contract and that he signed it. In his memorandum in opposition to the original motion to dismiss, plaintiff acknowledged that the original balance on his account was $17,337.29 and that the current balance was $12,037.29, demonstrating that he had paid over $5,000.00 on this account. He attached a June 28, 2011 letter from NCO Financial Systems to his attorney showing a balance then due of $12,037.29 and bills from St. John's Mercy Medical Center showing that on March 27, 2009, he had been charged $17,337.29 for outpatient services.

The trial court entered a judgment sustaining defendants' motion to dismiss. Plaintiff appeals from this judgment.

DISCUSSION

Although neither party has raised the question of whether this motion to dismiss should have been considered as a motion for summary judgment, we may sua sponte consider this issue. See, e.g., WEA Crestwood Plaza v. Flamers Charburgers, 24 S.W.3d 1, 5 (Mo.App. 2000); Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125-26 (Mo.App. 1999). Here, defendants attached documents outside the pleadings to their motion to dismiss and relied on information contained in those documents to support their motion. Plaintiff also attached documents to his memorandum in opposition to the first motion to dismiss.

Rule 55.27(a) provides:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.

Thus, once matters outside the pleadings are presented to and considered by the trial court, the court is required to treat a motion to dismiss as a motion for summary judgment. Raster v. Ameristar Casinos, Inc., 280 S.W.3d 120, 127 (Mo.App. 2009). Ordinarily, this requires thecourt to give notice and an opportunity to present all materials pertinent to a motion for summary judgment. Rule 55.27(a); Raster, 280 S.W.3d at 126-27; WEA Crestwood Plaza, 24 S.W.3d at 5; Shores, 998 S.W.2d at 126.

However, if it is apparent that the parties and the court were informed of the issues, and there is no genuine factual dispute with respect to the documents attached to the motion, then we need not remand for failure to give notice. Chaney v. Cooper, 954 S.W.2d 510, 515 (Mo.App. 1997). In such a situation, "[t]he purpose of the rule [Rule 74.04] has been met in that the requirement to apprise the opposing party, the trial court, and the appellate court of the specific basis on which the movant claims he is entitled to summary judgment has been met." Id. See also Wilson v. Cramer, 317 S.W.3d 206, 208-09 (Mo.App. 2010); WEA Crestwood Plaza, 24 S.W.3d at 5; Shores, 998 S.W.2d at 126. Further, "[w]hen both parties introduce evidence beyond the scope of the pleadings, the motion to dismiss is converted to a motion for summary judgment and the parties are charged with knowledge that the motion was so converted." Mitchell v. McEvoy, 237 S.W.3d 257, 259 (Mo.App. 2007).

Here, it is apparent that certain facts were undisputed: namely, that plaintiff was treated at St. John's in 2009; that the March 10, 2009 contract existed; that St. John's billed plaintiff $17,337.29 in March 2009; that plaintiff paid a total of $5,300.00 in June 2011; and that the unpaid balance on June 28, 2011, was $12,037.29. Likewise, in this court, the parties do not dispute these facts. In this situation, the parties, the trial court, and the appellate court have been properly apprised of the specific basis on which defendants claimed a right to judgment in their favor. We therefore treat the motion to dismiss as a motion for summary judgment. We will treat as admitted the undisputed facts as set out in this paragraph. We will disregard all othermatters of "fact" appearing in defendants' motion that plaintiff did not allege or admit in his pleadings, reply, or memoranda. We will review the trial court's judgment accordingly. Standard of Review

Because we consider the trial court judgment as a summary judgment, our review is de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Finance, 854 S.W.2d at 377. We view the record in the light most favorable to the party against whom summary judgment is entered and accord the non-movant the benefit of all reasonable inferences from the record. Id. at 376. "The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question." Id. at 380. When the movant is a defendant, a right to summary judgment can be established by...