United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CAROL E. JACKSON, District Judge.
This matter is before the Court on the motions of defendants Bonnie Moore and Dr. James Pang for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and for a stay of proceedings pending appeal. Plaintiff has filed a response in opposition.
Plaintiff Ruth Pierce brings this action pursuant to 42 U.S.C. § 1983, asserting claims that defendants Pang and Moore improperly detained her in an inpatient psychiatric unit following the expiration of a 96-hour detention order. She alleges that her continued detention violated her due process rights under the United States and Missouri Constitutions and violated the provisions of Chapter 632, Mo.Rev.Stat., governing involuntary commitment procedures. She also asserts state law claims for false imprisonment, assault and battery in the form of forced medication, and intentional infliction of emotional distress.
On June 13, 2014, the Court denied defendants' motions for summary judgment and to dismiss. On August 8, 2014, the defendants filed the instant motions to certify for interlocutory appeal.
II. Legal Standard
28 U.S.C. § 1292(b) provides a mechanism through which a party can pursue an interlocutory appeal. It has "long been the policy of the courts to discourage piecemeal appeals." White v. Nix , 43 F.3d 374, 376 (8th Cir.1994) (internal quotations omitted). Motions to certify issues for interlocutory appeal should be "granted sparingly and with discrimination." Id . Therefore, § 1292(b) motions should be granted only in "exceptional cases where a decision on appeal may avoid protracted and expensive litigation." Id . The movant bears the "heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted." Id. at 377.
Section 1292(b) establishes three criteria for certification: the district court must be "of the opinion that" (1) the order "involves a controlling question of law"; (2) "there is substantial ground for difference of opinion"; and (3) certification will "materially advance the ultimate termination of the litigation." Id. at 377 (quoting Paschall v. Kansas City Star Co. , 605 F.2d 403, 406 (8th Cir. 1979)).
A. Failure to Obtain a Health Care Affidavit Under § 538.225
Defendants assert that the Court should certify for appeal its denial of their motions to dismiss because plaintiff did not obtain a healthcare affidavit under § 538.225, Mo.Rev.Stat.
Defendants first assert that the Court misinterpreted St. John's Reg.Med. Ctr., Inc. v. Windler , 847 S.W.2d 168 (Mo.Ct.App. 1993), a case on which they relied to support their assertion that plaintiff was required to comply with § 583.225. Defendants disagree with the Court's determination that this case falls within an exception noted by the Windler court. The Windler case did not address the application of § 538.225 to constitutional claims and therefore is immaterial to the disposition of the issues in this case and the Court thus declines to readdress the Windler decision.
Defendants concede that a plaintiff is not required to file a healthcare affidavit to bring "a true § 1983 claim." However, they assert that plaintiff's claims amount to no more than a difference of opinion over proper medical care and thus an affidavit is required. In support of this contention, they cite Thomas v. Miller, ___ S.W.3d ___, 2014 WL 2723904 (Mo.Ct.App. June 17, 2014). The plaintiff in Thomas asserted a battery claim against her surgeon for failing to obtain proper informed consent. There was evidence in the record that the surgeon had asked for and obtained consent while Thomas was under the influence of sedative medication. Id. at *4. Based on this evidence, the court concluded that "the true nature" of plaintiff's claim involved the manner of her consent and whether the surgeon deviated from the standard of care in obtaining her consent. Under these circumstances, the court held, the plaintiff was required to obtain a healthcare affidavit before proceeding. Id. at *5. The Court rejects defendants' suggestion that Thomas permits courts to recast constitutional claims into medical malpractice claims. In this case, the "true nature" of plaintiff's claims is that she was improperly confined in violation of her constitutionally protected rights.
As the Court previously stated, § 538.225 does not apply to a plaintiff's constitutional claims under § 1983. See Schmidt v. Kemper, 05-4401-CVC-NKL, 2007 WL 1028927, at *2 (W.D. Mo. Mar. 29, 2007) (plaintiff not required to comply with § 538.225 in order to bring an action pursuant to 28 U.S.C. § 1983); Banks v. Jordon, 1:05CV0139 TCM, 2006 WL 2349625, at *1 (E.D. Mo. Aug. 11, 2006) (§ 538.225 does not apply to detainee's claim that constitutional rights were violated by nurses' deliberate indifference to serious medical needs); White v. Gammon, 2:04 CV 23 JCH, 2005 WL 3079043, at *3 (E.D. Mo. Nov. 16, 2005) (denying motion to dismiss inmate's § 1983 claims because § 538.225 " applies only to medical malpractice tort actions, " not § 1983 claims). None of the cases cited by defendants involved § 1983 claims. See Devitre v. Orthopedic Ctr. of St. Louis, LLC, 349 S.W.3d 327, 335 (Mo. 2011) ( en banc ) (plaintiff bringing suit against physician conducting independent medical examination failed to plead all elements of assault or medical battery and thus his claims sounded in medical malpractice); State ex rel . Farley v. Jamison , 346 S.W.3d 397, 400 (Mo.Ct.App. 2011) (trial court erred in failing to dismiss medical malpractice action under § 538.225 where healthcare affidavit did not contain all statutorily required elements); State ex rel . Red Cross Pharmacy, Inc. v. Harman , 423 S.W.3d 258, 267 ...