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Ferder v. Scott

Court of Appeals of Missouri, Eastern District, First Division

June 26, 2018

LINDA FERDER, Appellant,

          Appeal from the Circuit Court of St. Louis County Hon. Nancy W. McLaughlin


         Linda Ferder ("Plaintiff) appeals from the judgment dismissing her medical-negligence claim against Dr. J. Stephen Scott and Premier Medical Specialists, LLC (collectively "Defendants"), because the single healthcare affidavit she filed related to all defendants and did not strictly comply with Section 538.225.4 requiring a separate affidavit for each defendant. We find that Plaintiff substantially complied with the statutory requirements and reverse and remand.

         Plaintiff was admitted to Des Peres Hospital, where Dr. Scott, an employee of Premier, performed a number of surgeries. Plaintiff claimed that those surgeries caused her to sustain multiple gastric leaks and a rupture that required multiple additional surgeries to correct. Plaintiff maintains that she sustained approximately $ 1, 475, 000 in medical expenses, will continue to incur medical expenses in the future and suffers permanent disfigurement. Plaintiff also allegedly suffers severe emotional and mental anguish caused by this incident. Plaintiff sued Dr. Scott, alleging that he carelessly and negligently treated her. Plaintiff also sued Premier and Des Peres Hospital on a theory of respondeat superior, claiming that they were vicariously liable to her as Dr. Scott's employers.

         With her petition, Plaintiff filed a healthcare affidavit stating that counsel had obtained a written opinion from a qualified physician as follows:

Defendants, J. Stephen Scott, M.D., Premier Medical Specialists, LLC and Des Peres Hospital, Inc., through their agents and employees, failed to use such care as reasonably, prudent and careful healthcare providers would have under the same or similar circumstances and that such failure to use reasonable care directly caused damages to Plaintiff.

         The affidavit contained the name, address and qualifications of the surgeon who provided the opinion. Plaintiff subsequently voluntarily dismissed her claim against Des Peres Hospital, and the remaining defendants, Dr. Scott and Premier, moved to dismiss the petition. They argued that Plaintiff failed to file separate healthcare affidavits for each defendant as required by Section 538.225.4. Plaintiff argued that because Premier was only sued as the employer of Dr. Scott, she needed only to file one affidavit and that it substantially complied with the statute.. The trial court dismissed the petition without prejudice, and this appeal follows.[1]

         This Court reviews the grant of a motion to dismiss de novo. Sillyman v. Barbe, 423 S.W.3d 304, 305 (Mo. App. S.D. 2014) (citing White v. Tariq, 299 S.W.3d 1, 3 (Mo. App. E.D. 2009)). We also review de novo the trial court's interpretation and application of Section 538.225. Id. The legislature mandates healthcare affidavits for all medical-malpractice claims in Missouri as a precondition to a valid suit:

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 plaintiffs 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.

         Section 538.225.1. The affidavit shall state the name, address, and qualifications of the health care provider offering that opinion, and shall be filed within ninety days of filing the petition. See Sections 538.225.3 and 538.225.5. "A separate affidavit shall be filed for each defendant named in the petition." Section 538.225.4. "If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice." Section 538.225.6. This statute was enacted to cull at an early stage of litigation suits that lack even the color of merit, to protect the public and litigants from the cost of unfounded medical malpractice claims and to weed out frivolous lawsuits. Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 507 (Mo. banc 1991); Sillymcm, 423 S.W.3d at 307.

         Plaintiff concedes that the affidavit she filed is technically deficient because there was only one affidavit relating to all the defendants and hot separate affidavits for each named defendant. See Section 538.225.4. But she argues that she substantially complied with the statute because the affidavit was otherwise compliant and timely and verified that her claims were not frivolous. Plaintiff reasons that, because Dr. Scott is an employee of Premier and because she alleges only a vicarious-liability claim against Premier, the substance of her single affidavit satisfies the legislative purpose and intent of the statute with respect to both of the defendants. She contends substantial compliance with Section 538.225 should preclude dismissal of her petition.

         Defendants argue that Section 538.225 must be strictly interpreted and that a healthcare affidavit must comply with each and every requirement specified in the statute or dismissal is mandated. They rely heavily on Mayes v. St Luke's Hospital of Kansas City for the proposition that we are not permitted to examine whether Plaintiff substantially complied with Section 538.225, but are limited to reviewing only her actual compliance with each requirement of the statute. 430 S.W.3d 260, 265 (Mo. banc 2014). In Mayes, the Court stated that it had never addressed whether substantial compliance can satisfy the requirements of 538.225, but noted that a review of cases discussing substantial compliance in other contexts "weighs against such a finding." 430 S.W.3d at 271.

         But the Court stopped short of actually finding that substantial compliance was inapplicable to Section 538.225, at least with respect to the entirety of the statute. Rather, it stated only that the "language regarding the affidavit requirement is unambiguous and mandatory." Id. "The statutory language, both in terms of directing a plaintiff to file an affidavit [in section 538.225.1] and directing the court to dismiss the action if an affidavit is not filed [in section 538.225.6], demonstrates that the legislature intended the requirement that a plaintiff file an affidavit with the court be mandatory." Id. at 271-72. But this holding was limited to the most fundamental of the statute's requirements, namely the actual filing of an affidavit. If the Supreme Court wanted to foreclose a substantial compliance analysis with respect to the healthcare affidavit statute as a whole, it would have done so at this point in the opinion and would not had any need to go on to address the plaintiffs argument for substantial compliance. But it did go on to address that argument and concluded that the plaintiffs failure Xofile any affidavit in that case could not be considered substantial compliance with the filing requirement. Id. at 272. We do not believe Mayes was intended to prevent a finding of substantial compliance with other parts of the statute or in other factual scenarios.

         Though we have never found substantial compliance, this Court has addressed the merits of that argument in the context of the healthcare affidavit statute. In Mello v. Giliberto, the plaintiff argued she substantially complied with statute because she had the verbal opinion of medical personnel that her claim was not frivolous. 73 S.W.3d 669, 679-80 (Mo. App. E.D. 2002). We did not reject the notion of substantial compliance with the statute outright; rather, we addressed the argument on its merits and found it had none because the plaintiff had never filed any affidavit indicating she had a written opinion from a qualified expert. Id. In State ex re!. Farley v Jamison, we also squarely addressed the plaintiffs assertion that she had substantially complied with the statute. 346 S.W.3d 399, 400 (Mo. App. E.D. 2011). The affidavit the plaintiff filed in that case did not contain the name, address and qualification of the provider who gave the opinion therein as required by Section 538.225.3, but the plaintiff argued substantial compliance because she attempted to supplement it. Id. We rejected the plaintiffs argument on the merits under the facts of that case, but we did not reject outright the idea that one could substantially comply with ...

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