J.K.M v. Dempsey

• Decision Date: 28 July 2010
• Docket Number: No. SD 29791.,SD 29791.
• Citation: 317 S.W.3d 621
• Parties: J.K.M., Plaintiff-Appellant,v.Kenneth J. DEMPSEY, M.D., Defendant-Respondent.
• Court: Missouri Court of Appeals

317 S.W.3d 621

J.K.M., Plaintiff-Appellant,v.Kenneth J. DEMPSEY, M.D., Defendant-Respondent.

No. SD 29791.

Missouri Court of Appeals,

Southern District,

Division One.

July 28, 2010.

Daniel H. Rau, Cape Girardeau, MO, for Appellant.

Robert J. Amsler, Jr., and David L. Hares, St. Louis, MO, for Respondent.

DON E. BURRELL, Judge.

J.K.M. (“Plaintiff”) ¹ appeals the trial court's dismissal of his civil damages action against Kenneth J. Dempsey, M.D. (“Defendant”) based on Plaintiff's failure to timely file the health care affidavit required by section 538.225.² Although Plaintiff attempted to avoid characterizing his claims against Defendant as based on medical negligence, the factual averments set forth in Plaintiff's petition required that such an affidavit be filed. Because Plaintiff did not file a health care affidavit within the time allowed by statute, the trial court was required to dismiss Plaintiff's action without prejudice upon Defendant's motion and its judgment doing so is affirmed.

Factual and Procedural Background

When reviewing the trial court's dismissal of a petition, we treat the facts pleaded as true and construe all averments liberally and favorably to the appellant. Kanagawa v. State, 685 S.W.2d 831, 834 (Mo. banc 1985). In accordance with that standard, the following is a summary of the factual averments of Plaintiff's petition.

On April 4, 2001, Plaintiff was taken by his mother to Ferguson Medical Group in Sikeston, Missouri for the treatment of warts he had on his right hand. At that medical facility, Defendant told Plaintiff and his mother that he was going to inject Plaintiff with the “famous Swiss wart burner vaccine.” Defendant then inserted an 18-gauge needle into Plaintiff's right buttock and injected what he later revealed to Plaintiff's mother was merely a saline solution.³ Plaintiff claims that Defendant did not have Plaintiff's consent to insert the needle into his body or inject him with saline solution and that any alleged consent was obtained by fraud and deceit.

Plaintiff's claims against Defendant were characterized as breach of fiduciary duty and assault and battery. Plaintiff's petition further alleged that “as a direct and proximate result of the aforementioned breach of fiduciary duty by [Defendant], [Plaintiff] has suffered physical injury, severe emotional distress, depression, great indignity, humiliation, nervousness, anxiety and worry.”

Along with his answer to Plaintiff's petition, Defendant filed a “Motion to Dismiss for Failure to File Health Care Affidavit, pursuant to Section 538.225[.]” The trial court heard Defendant's motion to dismiss on June 26, 2008, at which time it granted Plaintiff thirty days to obtain the required health care affidavit. Plaintiff obtained the affidavit of Dr. James E. Palen, M.D. on July 11, 2008. Presumably in response to the filing of that affidavit, the trial court held a follow-up hearing on July 24, 2008. At that hearing, Defendant again moved to dismiss the petition, based on several alleged deficiencies in the affidavit obtained from Dr. Palen. Defendant's specific complaints were:

a) It states that the health care provider believes [Defendant] breached the standard of care but fails to use the language set forth in the statute leaving to question whether the health care provider believes [Defendant] failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances;

b) It states the health care provider believed the breach of the standard of care was the proximate and direct cause of injury but fails to follow the statutory requirement that the health care provider must believe that [Defendant] failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances;

c) It fails to state whether James Palen, M.D. is licensed;

d) It fails to state whether James Palen, M.D. is currently practicing or whether he authored the written opinion within five years of his retirement;

e) It states that James Palen, M.D. is a general practitioner and he is not in the specialty of [Defendant], who practiced as a dermatologist and;

f) The health care affidavit fails to provide the address and qualifications of James Palen, M.D.

Defendant supported his motion with an affidavit in which he set out his specialization as a board-certified dermatologist. At the close of this hearing, the trial court granted Plaintiff an additional thirty days in which to obtain an appropriate health care affidavit. Plaintiff then filed an amended health care affidavit four days after the trial court's thirty-day deadline had expired.

Plaintiff apparently understood that his amended affidavit was still deficient and requested by motion additional time, up to September 19, 2008, to obtain an amended affidavit in conformity with the trial court's order. Although the trial court granted this request for additional time, Plaintiff never filed such an amended affidavit.⁴

On September 18, 2008, Defendant filed his “Fourth Amended Motion to Dismiss for Failure to File Health Care Affidavit Pursuant to § 538.225, R.S.Mo [.]” This motion asserted, among other things, that the trial court lacked the “power to extend the time for [Plaintiff] to submit an affidavit pursuant to § 538.225, R.S.Mo. after the expiration of the first one hundred eighty (180) days.” On April 1, 2009, the trial court entered an order dismissing Plaintiff's case. On May 26, 2009, the trial court incorporated its previous order of dismissal and designated it as a judgment. Plaintiff now appeals that judgment of dismissal.

Analysis

Plaintiff's two points on appeal are not in compliance with the requirements of Rule 84.04(d).⁵ As Defendant has addressed Plaintiff's points on the merits and we do not believe the deficiencies substantially impede appellate review, we review Plaintiff's points ex gratia. See DeLong Plumbing Two, Inc. v. 3050 N. Kenwood LLC, 304 S.W.3d 784, 788 (Mo.App. S.D.2010). The gist of Plaintiff's first point is that the trial court erred in requiring him to obtain a health care affidavit at all “in that there was no medical treatment provided by [Defendant] and he: breached the fiduciary duty owed to [Plaintiff]; that [Plaintiff] was assulted [sic] and battered by [Defendant]; and, that [Plaintiff] is entitled to puntivie [sic] damages as a result of the breach of fiduciary duty and/or being assaulted and battered.” Plaintiff's second point alleges in toto, “The trial court erred in finding that the affidavit filed by [Plaintiff] in compliance with § 538.225 was deficient.”

Standard of Review

We review the grant of a motion to dismiss by the circuit court de novo. Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo. banc 2007). Matters of statutory interpretation and the application of the statute to specific facts are also reviewedde novo. Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 23 (Mo.App. E.D.2005).

Point I: Was an Affidavit Required?

Section 538.225 provides:

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.

2. As used in this section, the term “legally qualified health care provider” shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.

3. The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion.

4. A separate affidavit shall be filed for each defendant named 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.

7. Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one or more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant's reasonable attorney fees and costs.

Section 538.225 (emphasis added).

Missouri courts have interpreted this section as applying to more than just medical negligence causes of action. Our Supreme Court has stated that “by using the words ‘any action’ in sec. 538.225.1, the legislature clearly demonstrated its intent that the statute not only apply to a negligence action” but should include other claims of personal injury against a health care provider. Budding v. SSM Healthcare Sys., 19 S.W.3d 678, 680 (Mo. banc 2000). The legislature also “intended to impose specific limitations on the traditional tort causes of action available against a health care provider.” Id. “Included in these limitations is [...