Spears v. Freeman Health Sys.

• Decision Date: 14 August 2012
• Docket Number: No. SD 31389.,SD 31389.
• Citation: 403 S.W.3d 616
• Parties: Sara SPEARS as Next Friend for Joseph Reuben CLENDENING, IV, Plaintiff–Appellant, v. FREEMAN HEALTH SYSTEMS and its Employees, Agents and Representative, Sherri Severson, ED.S, LPC, and Kelly Williams, MA, LPC, and Jennifer Forsythe, BA, and Ozark Center d/b/a Turnaround Ranch, Defendants–Respondents.
• Court: Missouri Court of Appeals

403 S.W.3d 616

Sara SPEARS as Next Friend for Joseph Reuben CLENDENING, IV, Plaintiff–Appellant,

v.FREEMAN HEALTH SYSTEMS and its Employees, Agents and Representative, Sherri Severson, ED.S, LPC, and Kelly Williams, MA, LPC, and Jennifer Forsythe, BA, and Ozark Center d/b/a Turnaround Ranch, Defendants–Respondents.

No. SD 31389.

Missouri Court of Appeals,

Southern District,

Division Two.

July 17, 2012.

Application for Transfer

Denied Aug. 14, 2012.

Eryn M. Peddicord of Kansas City, MO, for Appellant.

Kent O. Hyde of Springfield, MO, for Respondent Freeman Health Systems.

Robert A. Wulff of Springfield, MO, for all other Respondents.

JEFFREY W. BATES, J.

Sara Spears (Mother) appeals from the order of the trial court dismissing without prejudice her cause of action against Freeman Health Systems, Ozark Center, Sherri Severson, Kelly Williams and Jennifer Forsythe (hereinafter referred to collectively as Defendants) for failing to file a health care affidavit pursuant to § 538.225.1.¹ Mother argues that a health care affidavit was not required because her petition alleged a cause of action based upon ordinary negligence, rather than medical negligence. Finding no merit in that argument, we affirm.

In April 2010, Mother filed a petition for damages on behalf of her 11–year–old son (Son). As thereafter amended, the petition contained the following allegations. Freeman Health Systems was a non-profit corporation that owned a facility called Ozark Center. Ozark Center was operated under the name Turnaround Ranch (the Ranch). The Ranch employed Sherri Severson (Severson) and Kelly Clarkson Williams (Williams) as licensed professional counselors. The Ranch also employed Jennifer Forsythe (Forsythe) as a “targeted case manager[.]” Son was admitted to the Ranch on September 18, 2009. While at the Ranch, Severson and Williams served as his counselors. Forsythe served as Son's targeted case manager. Three times during October 2009, Son was sexually assaulted by a 16–year–old patient (Patient) at the Ranch. After each assault, Son notified Severson or other employees of the Ranch. Neither the counselors nor the Ranch reported these assaults to the local sheriff's department. The petition for damages contained seven counts. The first count alleged that Son's injuries had been caused by the negligent failure of his counselors and the Ranch to appropriately supervise Patient. The next three counts alleged negligent infliction of emotional distress, intentional infliction of emotional distress and breach of fiduciary duty based on that same failure to supervise. The fifth, sixth and seventh counts alleged negligent failure to warn Mother and Son that he would be sharing accommodations with Patient during Son's stay at the Ranch.

On December 23, 2010, the trial court heard testimony from Mary Frerer (Frerer) at a hearing for Defendants' motion to quash. Frerer was the Director of Human Resources and Risk Management for Ozark Center. She testified that the Ranch “is an adolescent residential treatment facility.” The residents of the Ranch are “seriously emotionally disturbed” and they come to the Ranch “for treatment for various emotional issues, behavioral issues.” Any out-of-the-ordinary occurrence at the Ranch is reported, and the reports thus generated are primarily used in developing ongoing treatment plans. The residents live in separate cottages based on their diagnoses. A “Level Four Plus” cottage houses children who are both mentallyill and mentally retarded. At the time of the assaults described in the petition, Son and Patient were both residents of the same “Level Four Plus” cottage.

Defendants filed motions to dismiss the amended petition because Mother did not file a health care affidavit. At the hearing on that motion, Defendants' attorneys asked the trial court to consider Frerer's testimony in determining whether the filing of a health care affidavit was required. Mother did not object to that request. After considering the allegations of the amended petition and Frerer's testimony, the trial court entered an order concluding “that a health care relationship existed between the minor plaintiff and the defendants and that the gravamen of plaintiff's claims for damages consists of claims against defendants in their capacities as health care providers.” Mother was allowed 30 days to file an appropriate affidavit. When she failed to do so, the trial court dismissed the action without prejudice. Mother appealed.²

Our legislature has imposed a number of limitations on traditional tort causes of action against a health care provider. See J.K.M. v. Dempsey, 317 S.W.3d 621, 625 (Mo.App.2010). Chapter 538 was “a legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services.” Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 507 (Mo. banc 1991). The limitation at issue here is found in § 538.225.1, which states:

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.

Id. As used in this subsection, the phrase “health care services” is defined to mean:

[A]ny services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or, if the health care provider is an institution, in the ordinary course of furthering the purposes for which the institution is organized. Professional services shall include, but are not limited to, transfer to a patient of goods or services incidental or pursuant to the practice of the health care provider's profession or in furtherance of the purposes for which an institutional health care provider is organized[.]

§ 538.205(5). The affidavit requirement in § 538.225.1 was intended “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.” Mahoney, 807 S.W.2d at 507. In furtherance of that goal, Missouri courts elevate substance over form when determining whether an affidavit is required. The application of § 538.225 is not controlled by the manner in which the plaintiff characterizes the claim in the petition.

See J.K.M., 317 S.W.3d at 626. Instead, “a pleading is judged by its subject and substance of its recitals and not its rubric or caption.” Devitre v. Orthopedic Center of St. Louis, LLC, 349 S.W.3d 327, 334 (Mo. banc 2011).

We review de novo the trial court's interpretation and application of § 538.225.1. Devitre, 349 S.W.3d at 331. We apply a two-part test to determine whether a plaintiff is required by § 538.225.1 to file a health care affidavit. See Devitre, 349 S.W.3d at 331–32. First, we must determine whether the relationship between the parties is that of health care provider and recipient. Id.³ The parties agree that the relationship between Son and Defendants was that of health care provider and recipient, so this part of the test is met. Second, we must determine whether the true claim relates solely to the provision of health care services. Id. at 332. As did the trial court, we will consider both the allegations in Mother's petition and Frerer's testimony to decide this issue.⁴

The question before us is whether a claim that medical professionals working at a residential treatment facility failed to adequately supervise two mentally ill and mentally retarded adolescents, so as to prevent one from committing a sexual assault upon the other, is one that relates solely to the provision of health care services. After reviewing the relevant statutory language, Missouri cases discussing the health care affidavit and cases from other jurisdictions applying similar statutes, we answer that question in the affirmative and affirm the trial court's decision to require a health care affidavit in the case at bar.

As noted above, a health care affidavit is required when the claims in the petition relate to “the rendering of or failure to render health care services [.]” § 538.225.1. The statutory definition of health care services includes “any services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or, if the health care provider is an institution, in the ordinary course of furthering the purposes for which the institution is organized ....” § 538.205(5). “[T]he plain and ordinary meaning of ‘health care’ is a service which maintains or restores the soundness of the human body or mind, or aids to free the body or mind from disease or ailment.” Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 660 (Mo.App.1999) (emphasis added).

Here, Patient was a mentally ill and mentally retarded adolescent who was being treated by Defendants, all of whom were health care providers, at a residential treatment center. The gist of Mother's claim is that Defendants failed to adequately supervise Patient so as to prevent him from sexually assaulting Son. In our view, the questions of whether Defendants should have known Patient posed a danger to other patients and what measures (i.e., isolation, restraints, medications, etc.) could be used to minimize any such danger involves a question of professional medical judgment. The fact that Mother's petition characterizes the claim as one of ordinary negligence, rather than medical...