Jacobs v. Wolff, 60571

• Decision Date: 03 March 1992
• Docket Number: No. 60571,60571
• Citation: 829 S.W.2d 470
• Parties: R. JACOBS, Plaintiff/Appellant, v. Gerald WOLFF, M.D., Defendant/Respondent, and Karen Unser, R.N., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 470

829 S.W.2d 470

R. JACOBS, Plaintiff/Appellant, v. Gerald WOLFF, M.D., Defendant/Respondent and Karen Unser, R.N., Defendant/Respondent.

No. 60571.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 3, 1992.

R. Jacobs, St. Louis, for plaintiff/appellant.

Kortenhof & Ely, Kenneth M. Lander, St. Louis, for defendant/respondent Wolff, M.D.

Brown & James, P.C., Robert S. Rosenthal & David P. Ellington, St. Louis, for defendant/respondent Unser, R.N.

KAROHL, Judge.

On June 18, 1991, the trial court dismissed plaintiff Jacobs' claims against defendant Gerald A. Wolff, a medical doctor, and defendant Karen Unser, a nurse. The court found the claims alleged in five counts against Dr. Wolff and one count against nurse Unser barred for failure of plaintiff to file an affidavit mandated by § 538.225.1 RSMo 1986. Plaintiff acknowledges the failure to file the affidavit but claims the requirement does not apply to his claims against Dr. Wolff and nurse Unser. Plaintiff appeals from the order dismissing his causes of action without prejudice.

We affirm dismissal of Counts I-IV of plaintiff's fourth amended petition claiming damages against Dr. Wolff and dismissal of Count IX of plaintiff's fifth amended petition claiming damages against nurse Unser. We reverse and remand the dismissal of Count V for an injunction against Dr. Wolff.

On November 23, 1988, plaintiff sued Dr. Wolff claiming tortious interference with contract, negligent infliction of emotional distress, negligence and prima facie tort. He also alleged a claim for an injunction against interference by Dr. Wolff which prevented plaintiff from "rejoining and continuing the Vital Cardiac Laboratories program prescribed by Plaintiff's physician." The count against nurse Unser alleged negligence.

The principle issue before the court is whether the claims for damages against Dr. Wolff and the claim for damages against nurse Unser are barred as a matter of law for failure of plaintiff to comply with the provisions of § 538.225.1 RSMo 1986. We find the order of dismissal without prejudice under § 538.225.5 RSMo 1986 is final and appealable. Mahoney v. Doerhoff Surgical Serv., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991). We note the court in Mahoney found the statute to be constitutional. Id. at 507-513.

We accept as true factual allegations in the petition. Defino v. Civic Center Corp., 718 S.W.2d 505, 510 (Mo.App.1986). Our review is hampered by the fact plaintiff has provided the court with only plaintiff's original petition against Dr. Wolff consisting of five counts, and a part of plaintiff's fourth amended petition consisting of Counts VI--IX against nurse Unser. In nurse Unser's supplemental legal file, we also have Counts VI--IX of plaintiff's fifth amended petition, counts relating only to nurse Unser. At the time the court entered orders of dismissal which are the subject of this appeal, the proposed Counts VI--VIII in plaintiff's fifth amended petition were not before the court because the court had previously dismissed the same counts alleged in the fourth amended petition with prejudice and refused plaintiff leave to refile those counts. Those dismissals were not appealed. The court granted plaintiff leave to file an amended Count IX to plaintiff's fourth amended petition claiming negligence by nurse Unser. On June 18, 1991, the only count pending against nurse Unser was Count IX of plaintiffs' fifth petition.

We reject plaintiff's claim that the dismissal of Count IX of plaintiff's fifth amended petition was not properly before the court on June 18, 1991, when it was dismissed. Nurse Unser's motion to dismiss based on § 538.225 was filed on March 25, 1991, and was directed to Count IX of plaintiff's fourth amended petition. The fifth amended petition, Count IX, was allowed by the court on June 4, 1991. However, Count IX of plaintiff's fifth amended petition is identical to Count IX of plaintiff's fourth amended petition and the legal issue, whether plaintiff's claims are barred as a matter of law under the facts and § 538.225, is the same. While the motion to dismiss was under submission, the court permitted a fifth amended petition on plaintiff's request but Count IX did not change and it is barred as a matter of law.

The legal question is whether the gravamen of plaintiff's claims for damages consists of claims against Dr. Wolff and nurse Unser in their capacity as health care providers. Given the relationship of the parties and the true claim for damages relates to wrongful acts of a health care provider, we find § 538.225 RSMo 1986 applies regardless of the characterization of the claims by plaintiff. See Mullins v. Miller, 796 S.W.2d 119, 120 (Mo.App.1990); Spruill v. Barnes Hospital, 750 S.W.2d 732, 733 (Mo.App.1988).

Plaintiff alleged he began a physical rehabilitation program, Vital Cardiac Laboratories of Jewish Hospital, after suffering two heart attacks and undergoing cardiac by-pass surgery. Plaintiff's cardiologist recommended and prescribed that plaintiff enroll for the Laboratories Rehabilitation Program. Relevant allegations in the petition are helpful:

7. That Gerald A. Wolf [sic] is a physician specializing in cardiac care ... and knew of the importance of the Plaintiff's commitment and regularity in exercising and the monitoring thereof following cardiac bypass surgery.

* * * * * *

12. That as a physician specializing in cardiology, Gerald A. Wolf [sic] knew of the importance [of the program but caused the laboratory to exclude plaintiff].

These allegations are...