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Hink v. Helfrich

Supreme Court of Missouri, En Banc

May 1, 2018

MARILYN HINK, Appellant,

          APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY The Honorable David A. Dolan, Judge


         Appellant Marilyn Hink appeals the Scott County circuit court's judgment dismissing her medical malpractice case without prejudice for failure to file an "affidavit of merit" under section 538.225.[1] She argues section 538.225's affidavit requirement violates Missouri's open courts provision as well as her right to trial by jury and the principle of separation of powers under the Missouri Constitution. See Mo. Const. art. I, § 14; id. art. I, § 22(a); id. art. II, § 1. This Court reaffirms its decision in Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503 (Mo. banc 1991), upholding the constitutional validity of section 538.225's requirement of an affidavit stating the plaintiff or plaintiff's attorney has the opinion of a legally qualified medical provider on the issues of breach of the standard of care and causation of damages.

         This Court declines to adopt Ms. Hink's argument that revisions to the statute since Mahoney require a single expert be relied on to support all theories of causation, standard of care, and damages even when multiple experts will be used at trial. This Court need not reach the question posed by Ms. Hink of whether the statute restricts the definition of "legally qualified health care provider" in a way that disqualifies experts who would otherwise be able to make a submissible case at trial from supplying the opinion supporting an affidavit. Not only is such a serious constitutional problem unlikely to arise in light of this Court's broad interpretation of what constitutes "substantially the same specialty" in Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683 (Mo. banc 2010), but in any event, the issue is not presented here. Ms. Hink's case was dismissed because she failed to file any affidavit, not because she offered multiple affidavits or because the judge believed the medical opinions were not offered by persons in substantially the same specialty as experts who would have offered sufficient evidence as to breach of the standard of care, causation, and damages to make a submissible case at trial. Accordingly, this Court affirms.


         On May 7, 2013, Dr. Loring Helfrich performed a scheduled surgery to remove Marilyn Hink's gall bladder. Ms. Hink's right hepatic duct was allegedly injured during the procedure, causing bile to leak into the surgical field. Over the next several months, Ms. Hink required additional medical attention and a second surgery to repair the injured duct. On May 5, 2015, just less than two years after her surgery, Ms. Hink filed a petition in the Scott County circuit court alleging (1) Dr. Helfrich was negligent in injuring her hepatic duct during the May 7 surgery and (2) the affidavit requirement of House Bill 393, contained in section 538.225, unconstitutionally barred her access to the courts to pursue her malpractice claim.[2]

         In a medical malpractice action, section 538.225 requires the plaintiff or plaintiff's attorney to file an affidavit, often called an "affidavit of merit, " stating "that he or she has obtained the written opinion of a legally qualified health care provider" that the defendant breached the applicable standard of care and this failure directly caused or contributed to cause plaintiff's damages. The affidavit must be filed within 90 days of filing a petition unless the circuit court grants an extension. Id.

         Ms. Hink's first petition was dismissed without prejudice on September 24, 2015. Section 537.100 permits the refiling of a petition within one year of dismissal even when the statute of limitations may have run. Lang v. Goldsworthy, 470 S.W.3d 748, 752 n.6 (Mo. banc 2015). On September 21, 2016, Ms. Hink refiled her petition. She sought, and was granted, a 90-day extension to file her affidavit, as permitted by section 538.225. This made the affidavit due no later than March 20, 2017. When Ms. Hink failed to file an affidavit by that date, Dr. Helfrich filed a motion to dismiss for failure to timely file an affidavit of merit. Ms. Hink conceded she failed to file the required affidavit but asked the court to overrule the motion to dismiss on the ground that section 538.225, as revised in 2005, violates a plaintiff's right to jury trial, Missouri's open courts provision, and separation of powers. The circuit court again dismissed the petition without prejudice.

         Although a dismissal without prejudice generally is not appealable because it is not an adjudication on the merits, when an action cannot be refiled or when the litigant chooses to stand on the "right under the state and federal constitutions to maintain the action unencumbered by [the section 538.225 affidavit] requirement, " then the dismissal may be appealed because "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." Mahoney, 807 S.W.2d at 506. Ms. Hink properly filed her appeal in this Court because she attacks the validity of a Missouri statute. Mo. Const. art. V, § 3.


         "Challenges to the constitutional validity of a state statute are subject to de novo review." State v. Shanklin, 534 S.W.3d 240, 241 (Mo. banc 2017), quoting, Hill v. Boyer, 480 S.W.3d 311, 313 (Mo. banc 2016). "Statutes are presumed constitutional and will be found unconstitutional only if they clearly contravene a constitutional provision." Hill v. Boyer, 480 S.W.3d 311, 313-14 (Mo. banc 2016). The party bringing the constitutional challenge "has the burden of proving the act clearly and undoubtedly violates the constitutional limitations." State v. Vaughn, 366 S.W.3d 513, 517 (Mo. banc 2012). "This Court also reviews de novo questions … about a party's standing to raise such constitutional questions." Brehm v. Bacon Twp., 426 S.W.3d 1, 4 (Mo. banc 2014).


         Section 538.225.1 requires that the plaintiff or plaintiff's counsel

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.

(Emphasis added). When first enacted, the statute further provided, if no such affidavit is filed within 90 days, "the court may, upon motion of any party, dismiss the action against such moving party without prejudice." § 538.225.5, RSMo 1985 (emphasis added). The statute was amended in 2005 to provide the court "shall" dismiss the action if an affidavit is not filed. The 2005 amendment also added, for the first time, language defining a "legally qualified health care provider" as one licensed "in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant." § 538.225.2, RSMo 2005.

         Ms. Hink's sole point relied on states as follows: "The trial court erred in sustaining Dr. Helfrich's Motion to Dismiss for Failure to File Healthcare Affidavit pursuant to RSMo. § 538.225 because RSMo. §538.225 is unconstitutional in that there are circumstances where it is impossible for the plaintiff to comply with the requirements of RSMo. § 538.225." As the separate opinion notes, Ms. Hink's point is an abstract statement of law and is too general and vague, as is her argument regarding the alleged violation of the right to jury trial and separation of powers. But this Court prefers to dispose of cases on the merits if it can discern the argument being made. See Pub. Water Supply Dist. No. 2 of Jackson Cty. v. Alex Bascom Co.,370 S.W.2d 281, 291 (Mo. 1963); see also Lueker v. Mo. W. State Univ.,241 S.W.3d 865, 867 (Mo. App. 2008) ("An appellate court prefers to dispose of a case on the merits rather than to dismiss an appeal for deficiencies in the brief."). This Court can discern from the argument section of Ms. Hink's brief and oral argument, from the amicus brief, and from her citation to this Court's discussion of similar issues in Mahoney, 807 S.W.2d at 503, that her key argument is section 538.225 violates the open courts provision of ...

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