Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County Cause No.
15SL-CC03107 Honorable Ellen H. Ribaudo
Colleen Dolan, Judge
Adem, M.D. ("Appellant") appeals the motion
court's dismissal of his claims for injunctive relief,
temporary restraining order, and declaratory judgment against
Des Peres Hospital, Inc. ("the Hospital").
Appellant claims the court erred in finding he did not allege
sufficient facts demonstrating the Hospital failed to
substantially comply with its bylaws ("the Bylaws")
by failing to follow certain procedural safeguards in
conducting his peer review proceedings. Appellant's staff
membership and clinical privileges were revoked by the Board
of the Hospital ("the Board") following the
recommendations of the Medical Executive Committee
("Executive Committee") and the Medical Review
Committee ("Review Committee").
initial matter, our Court must determine whether there is a
final judgment sua sponte. Avery Contr., LLC v.
Niehaus, 492 S.W.3d 159, 162 (Mo. banc 2016). The motion
court's order and judgment did not specify whether it
dismissed Appellant's claims with or without prejudice.
If a motion to dismiss does not specifically state it is
dismissed with prejudice, it is deemed to be dismissed
without prejudice. See Meissner v. Schnettgoecke,
427 S.W.3d 864, 866 n.2 (Mo. App. E.D. 2014); see
also Rule 67.03. Typically,
following a dismissal without prejudice, a plaintiff can cure
the dismissal by filing another suit in the same court.
Meissner, 427 S.W.3d at 866 n.2. Therefore, a
dismissal without prejudice is generally not a final,
appealable judgment. Jennings v. SSM Health Care St.
Louis, 355 S.W.3d 526, 530-31 (Mo. banc 2011).
a party can appeal from a dismissal without prejudice if the
dismissal has the practical effect of terminating the
action." L.C. Dev. Co. Inc. v. Lincoln Cty, 26
S.W.3d 336, 338 (Mo. App. E.D. 2000); Avery Contr.,
492 S.W.3d at 162. The motion court granted the
Hospital's combined motion to dismiss Appellant's
claims based on his failure to state a claim upon which
relief could be granted. The Supreme Court of Missouri has
held "where the trial court dismisses a petition without
prejudice for failure to state a claim, and the plaintiff
elects to stand on the dismissed petition and not to plead
further, then that dismissal effectively bars the plaintiff
from re-filing the action in its original form."
Jennings, 355 S.W.3d at 531. Consequently, the
motion court's dismissal has the practical effect of a
final judgment, and appellate courts have jurisdiction over
such appeals. Id.
Factual and Procedural Background
is a cardiologist who was a member of the Hospital's
medical staff. On March 21, 2014, the Hospital's Chief of
Staff notified Appellant that the Executive Committee had
recommended that Appellant's medical staff privileges be
revoked in accordance with the Bylaws. Following this adverse
recommendation, Appellant invoked his right to a hearing by
the Review Committee and was served with notice of the
hearing on June 2, 2015. This notice letter included the
names of the three medical staff members who would review the
Executive Committee's recommendation. Section 11.6 of the
Bylaws outlines the requirements for selecting the Review
Committee and states that the doctors serving on the Review
Committee cannot be in economic competition with Appellant
and cannot have been involved earlier in the peer review
process. This section also requires that the Chief of Staff
appoint members of the Review Committee and "[i]f
available, at least one [Review Committee] member shall have
practice experience, education or training the same or
sufficiently similar to the practice area of the
Physician…under review." § 11.6. Appellant
objected that none of the appointed physicians practiced
cardiology and therefore lacked sufficiently similar
experience as required by the Bylaws. His objection was
overruled by the Hospital and the Review Committee hearing
was held from August 4-6th, 2015.
asserted in his pleadings that on or about September 3, 2015,
he learned one of the Review Committee members, Dr. Soudah,
was an employee of Tenet, a publicly traded for-profit
corporation that wholly owns the Hospital. Appellant pleaded
that this raised a conflict of interest and violated the
Bylaw's impartiality requirement. This objection was made
three months after Appellant received notice of the hearing.
The Hospital denied the objection because it was not made
within ten days after receiving notice of the hearing as
provided by the Bylaws and was therefore waived.
September 11, 2015, Appellant filed a lawsuit in St. Louis
County seeking a temporary restraining order, preliminary and
permanent injunctions, and a declaratory judgment that the
Hospital had failed to substantially comply with its Bylaws.
Appellant alleged that the Hospital failed to comply with the
Bylaws in two express ways: (1) failing to select impartial
panel members to sit on the Review Committee; and (2) failing
to select any panel member who had sufficiently similar
experience to Appellant. On September 25, 2016, the motion
court granted the Hospital's motion to dismiss for
failure to state a claim, finding that Appellant failed to
plead sufficient facts which, if true, demonstrated that the
Hospital did not substantially comply with its Bylaws. This
Standard of Review
the pleadings fail to state a cause of action under the law
or fail to state facts entitling the party to relief, the
trial court may dismiss the lawsuit." ITT Commercial
Fin. Corp. v. Mid-America Marine Supply Corp., 854
S.W.2d 371, 376 (Mo. banc 1993). "Missouri rules of
civil procedure demand more than mere conclusions that the
pleader alleges without supporting facts." Transit
Cas. Co. ex rel. Pulitzer Publ'g Co. v. Transit Cas. Co.
ex rel. Intervening Employees, 43 S.W.3d 293, 302 (Mo.
banc 2001) (citing Rule 55.05). Missouri is a fact-pleading
state and every petition must contain facts that sufficiently
demonstrate the pleader is entitled to the relief sought.
ITT, 854 S.W.2d at 379. "A petition must
contain allegations of fact in support of each essential
element of the cause sought to be pleaded." Sparks
v. PNC Bank, 400 S.W.3d 454, 460 (Mo. App. E.D. 2013).
This Court disregards all conclusions in a petition when they
are not supported by facts. Zafer Chiropractic &
Sports Injuries, P.A. v. Hermann, 2016 Mo.App. LEXIS
1020, *5 (Mo. App. E.D. October 18, 2016).
appellate court "reviews the grant of a motion to
dismiss de novo." Byrne & Jones Enters.
v. Monroe City R-1 Sch. Dist., 493 S.W.3d 847, 851 (Mo.
banc 2016). "Appellate review of the trial court's
dismissal for failing to state a cause of action is solely a
test of the adequacy of the plaintiff's petition."
Egan v. St. Anthony's Med. Ctr., 244 S.W.3d 169,
171 (Mo. banc 2008) (Egan I) (internal quotations
omitted). We assume all averments from the petition are true
and liberally grant all reasonable inferences in the
plaintiff's favor. Gardner v. Bank of Am., N.A.,
466 S.W.3d 642, 646 (Mo. App. E.D. 2015). In reviewing the
grant of a motion to dismiss, "we review the petition in
an almost academic manner to determine if the facts alleged
meet the elements of a recognized cause of action, or of a
cause that might be adopted in that case." Id.
(citing Nazeri v. Mo. Valley College, 860 S.W.2d
303, 306 (Mo. banc 1993)).
Egan I, the Supreme Court of Missouri held "an
aggrieved member of the medical staff, may bring an action in
equity for injunctive relief to compel the hospital to
substantially comply with its own bylaws before his
privileges may be revoked." 244 S.W.3d at 174. The Court
went on to emphasize:
[T]he purpose of [19 CSR 30-20.021(2)(C)1-5] is to implement a system of medical staff
peer review, rather than judicial oversight, and it is clear
that final authority to make staffing decisions is securely
vested in the ...