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Adem v. Des Peres Hospital, Inc.

Court of Appeals of Missouri, Eastern District, Second Division

January 24, 2017

ANTOINE ADEM M.D., Appellant,

         Appeal from the Circuit Court of St. Louis County Cause No. 15SL-CC03107 Honorable Ellen H. Ribaudo

          Colleen Dolan, Judge

         I. Introduction

         Antoine 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").[1]

         As an 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.[2] 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).

         "However, 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.

         II. Factual and Procedural Background

         Appellant 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.

         Appellant 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.

         On 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 appeal follows.

         III. Standard of Review

         "Where 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).

         An 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)).

         In 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][3] 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 ...

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