Mahoney v. Doerhoff Surgical Services, Inc.

CourtUnited States State Supreme Court of Missouri
Citation807 S.W.2d 503
Docket NumberNo. 72745,72745
PartiesLinda L. MAHONEY and Richard L. Mahoney, Plaintiffs-Appellants, v. DOERHOFF SURGICAL SERVICES, INC., Allen Doerhoff, M.D., et al., Defendants-Respondents.
Decision Date09 April 1991

Jerome Wallach, Michael F. Dandino, St. Louis, for plaintiffs-appellants.

Ronald B. McMillin, P. Pierre Dominique, Jefferson City, Hamp Ford, Susan Ford Robertson, Columbia, for defendants-respondents.


The plaintiffs Linda Mahoney and Richard Mahoney, husband and wife, brought an action for medical malpractice against defendants Doerhoff Surgical Services, Inc., a professional corporation, and Allen Doerhoff, M.D., and Carl Doerhoff, M.D., Missouri Osteopathic Foundation, doing business as Still Osteopathic Hospital, and St. Mary's Hospital. The suit was brought on September 22, 1989. After the lapse of 90 days, the several defendants moved to dismiss the plaintiff's action for failure to comply with § 538.225, RSMo 1986. That section provides that no later than ninety days after the filing of a petition against a health care provider for damages for personal injury, the plaintiff or attorney shall file an affidavit that states that the plaintiff has the written opinion of a legally qualified health provider that the defendant "failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances" and that such failure caused or contributed to cause the damages claimed in the petition. That section empowers the court, upon motion, to dismiss the action against the defendant for want of timely compliance by the plaintiff. 1

The plaintiffs neglected the affidavit provisions of § 538.225, and after ninety days the motions of the health care provider defendants to dismiss for noncompliance were sustained. Their action was dismissed without prejudice, and the plaintiffs appeal the dismissal to this Court on contentions of the invalidity of the statute. The appeal asserts that § 538.225 infringes the rights of trial by jury [ Mo. Const., art. I, § 22(a) ] and access to the courts [ Mo. Const., art. I, § 14 ], violates the principle of separation of powers [ Mo. Const., art. II, § 1 ], and denies the plaintiffs the equal

protection of the laws and due process of law [U.S. Const. Amend. XIV, § 1; Mo. Const., art. I, §§ 2, 10 ].


The defendants question that the dismissal without prejudice entered by the trial court was a final judgment from which an appeal can be taken, and hence the jurisdiction of this Court to adjudicate the complaints of error. They rest on the holding of the court of appeals in Mullins v. Miller, 796 S.W.2d 119 (Mo.App.1990), that a dismissal without prejudice under § 538.225.5 for failure to comply with the affidavit requirement of the statute is not a final judgment for the purpose of appeal. Mullins draws that conclusion of law from the premises of Rule 67.03 that a "dismissal without prejudice permits the party to bring another civil action for the same cause" and from the general principle that, "[w]ith exceptions ... a dismissal without prejudice is not an adjudication on the merits."

A dismissal without prejudice may nevertheless operate to preclude the party from bringing another action for the same cause, and may nevertheless be res judicata of what the judgment actually decided. Douglas v. Thompson, 286 S.W.2d 833, 834 (Mo.1956). When the effect of the order is to dismiss the plaintiff's action and not the pleading merely, then the judgment entered is final and appealable. White v. Sievers, 359 Mo. 145, 221 S.W.2d 118, 122 (banc 1949). The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of dismissal--albeit without prejudice--amounts to an adjudication on the merits and may be appealed. Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962); Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App.1985). This train of exceptions serves to preserve to a plaintiff rights that otherwise would be lost from a dismissal, which, although without prejudice, becomes res judicata of what that judgment actually decides. Healy v. Atchison, Topeka & Santa Fe R.R. Co., 287 S.W.2d 813, 815 (Mo.1956); Douglas v. Thompson, 286 S.W.2d at 834.

It is explicit in § 538.225.5 that the dismissal without prejudice sanction for failure to file the health care provider affidavit is a dismissal of the action, and not merely the petition. It is a judgment that the action may not continue. The plaintiffs here have not sought an order for an extension of time to produce the affidavits as a response to the motion to dismiss, but stand on the right under the state and federal constitutions to maintain the action unencumbered by that requirement. It would be redundant as well as futile to put the plaintiffs to the precondition of a new petition. A dismissal without prejudice is the only sanction that § 538.225 allows for noncompliance with the affidavit condition. Unless an appeal lies from the judgment, the right to test the constitutionality of the statute that imposes it will be lost to the plaintiffs and the question--although bound to recur--will languish.

The judgment of dismissal without prejudice under § 538.225.5 is final and appealable. The holding to the contrary in Mullins v. Miller, 796 S.W.2d 119 (Mo.App.1990) is overruled. This Court has jurisdiction. Mo. Const., art. V, § 3.

The defendants Doerhoff suggest a second impediment to our exercise of appellate jurisdiction. They cite Rule 87.04 to require notice to the Attorney General of Missouri in any proceeding wherein a statute is alleged to be unconstitutional, and the neglect of the plaintiffs to comply although they seek to invalidate § 538.225. They assert that "such failure raises a jurisdictional question." In support of the contention they mention, but without exposition, Land Clearance for Redevelopment Authority of St. Louis v. City of St. Louis, 270 S.W.2d 58 (Mo. banc 1954), and Yellow Freight Systems v. Mayor's Comm'n. on Human Rights, 737 S.W.2d 250 (Mo.App.1987).

Rule 87.04 rescripts § 527.110, RSMo 1986. The entirety of Rule 87 and Chapter 527, of which Rule 87.04 and § 527.110 are subparts, is entitled DECLARATORY

                JUDGMENTS.  The text of these provisions is drawn from and identical to § 11 of the UNIFORM DECLARATORY JUDGMENTS ACT.  See, Unif.  Declaratory Judgments Acts § 11, 12 U.L.A. 516 (1975).  The two cases cited by the defendants Doerhoff, as well as all of the Missouri cases that construe Rule 87.04 are declaratory judgment actions.  Indeed, every case that has dealt with that section of the uniform act, either as rule or statute and whether within or without Missouri, has involved only the sui generis declaratory judgment remedy.  See Rule 87.04 and Unif.  Declaratory Judgments Act § 11, 12 U.L.A. 516 (1975).  In actions for declaratory judgment that challenge the constitutionality of a statute, our law follows the general rule that notice to the Attorney General is mandatory.  Land Clearance for Redevelopment Authority, 270 S.W.2d at 63.   This is not an action for declaratory judgment

In the assessment and adjudication of a constitutional challenge to a statute, a court considers and interprets the purposes intended by the enactment. Harrell v. Total Health Care, Inc., 781 S.W.2d 58, 61 (Mo. banc 1989). It is readily understood from the history and text of Chapter 538 that the enactment is a legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services. The effect intended for § 538.225 within that scheme is to cull at an early stage of litigation suits for negligence damages against health care providers that lack even color of merit, and so to protect the public and litigants from the cost of ungrounded medical malpractice claims. The preservation of the public health is a paramount end of the exercise of the police power of the state. Craig v. City of Macon, 543 S.W.2d 772, 774 (Mo. banc 1976); and see Blue Cross Hosp. Service, Inc., v. Frappier, 681 S.W.2d 925, 930 (Mo. banc 1985). The objective of the enactment--the continued integrity of the health care system--therefore, bespeaks a legitimate public purpose that is given account in the assessment of the constitutional challenges. Harrell, 781 S.W.2d at 61.

A. Right to Trial by Jury

Article I, § 22(a) of the Missouri Constitution provides that "the right to trial by jury as heretofore enjoyed shall be inviolate." That right was envisioned by the framers as "a free and unfettered right," the plaintiffs argue, and is restrained by the condition of § 538.225 of an affidavit on file with the court within ninety days after the petition is brought. That condition, that the plaintiff have in hand by then a written opinion of a qualified health care provider that the defendant health care provider deviated from the accepted standard of care and so caused the plaintiff's damages, they argue, is onerous to the constitutional guarantee. It unduly burdens the right by a "screening process" wherein the "merits of the cause must be determined by [a] health care professional before the [plaintiff] can submit the case to the jury." It is the "screening process" established at the earliest stage of the litigation, the argument concludes, which denied the plaintiffs their right to have the factual issues of their claim heard by the jury, and so violates Article I, § 22(a) of the Missouri Constitution.

The parties do not disagree that the right to trial by jury is preserved under this article to a proceeding for damages for medical malpractice. Nor do they dispute that the petition brought by the plaintiffs against the...

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