Tuesday, July 15, 2014

Mayes v. Saint Luke's Hospital of Kansas City

Opinion issued
May 27, 2014

Link to Missouri Supreme Court Opinion

Family members brought a suit against doctor and hospital for wrongful death and lost chance of recovery after the death of Mr. Mayes on March 28, 2008.  After voluntarily dismissing the first suit, the plaintiffs filed a second suit but did not file the required affidavit by a health care provider certifying merit required by RSMo 538.225.  Defendants successfully moved to dismiss for failure to comply with statutory requirements, as the statute mandated dismissal.  After dismissal, the plaintiffs brought a third suit, but the third case was dismissed because the statute of limitations had run on both claims.  Plaintiffs appealed, arguing the unconstitutionality of 538.225 for the second and third cases and that they had substantially complied with the statutory requirements in the second case.  The Supreme Court of Missouri held that the constitutional objections were not preserved in the second case, that there was no substantial compliance, and the statute of limitations was properly applied and barred the third case.
I.  Facts and Holding

Mr. Mayes died on March 28, 2008 from an infection developed after heart surgery.[1]  On March 4, 2010, Mr. Mayes' wife and children filed suit ("case #1") against defendants, the hospital and the doctor who performed the surgery, for wrongful death and loss of lost chance of recovery.[2]  In the petition, the plaintiffs included constitutional objections to RSMo 538.225 (and other medical malpractice statutes) which requires filing, within 90 days of the petition, an affidavit from another health care provider that supports the plaintiff's claim.[3]  In case #1 the required affidavit was properly and timely filed, and the expert listed in the affidavit, Dr. Berg, was deposed during discovery of case #1.[4] 

On August 26, 2011, the plaintiffs voluntarily dismissed case #1 and quickly filed a second case ("case #2") on August 31, 2011.[5]  However, in case #2 the plaintiffs did not file the required affidavit with the new petition.[6]  On August 28, 2012, defendants moved to dismiss case #2 for failure to comply with the statute's requirements and the plaintiffs moved to strike the motion arguing they complied with the statute.[7]  The trial court dismissed case #2 without prejudice because doing so was required by the language of the statute.[8]  The plaintiffs moved to vacate the order of dismissal and claimed that they had substantially complied with section 538.225.[9]  During the hearing on the motion, plaintiffs' counsel made remarks at the end of his argument that touched on the unconstitutionality of the statute's requirements as applied to his clients, and defendants objected to a suggestion of constitutional challenge.[10]  The trial court overruled the motion to vacate the order of dismissal and plaintiffs subsequently appealed.

Before filing a notice of appeal for case #2 the plaintiffs filed another case ("case #3") on October 30, 2012, with identical claims as the two previous cases, as well as with the proper affidavits required by statute.[11]  The defendants moved to dismiss case #3 on the grounds that it was barred by the statutes of limitations, and the trial court dismissed case #3 because it was filed more than three years after the death of Mr. Mayes.[12]

 The Supreme Court of Missouri found that the plaintiffs failed to preserve their constitutional challenges against 538.225 and thus refused to consider it.  While the plaintiffs' petition included "Constitutional Objections," and therefore initially raised an issue of constitutional challenge, plaintiffs failed to preserve the constitutional challenge when they failed to raise objections at the initial motion to dismiss for failure to file the proper affidavits.[13]  In the initial motion to dismiss for case #2, the plaintiffs argued that the motion was untimely and that they complied with the statute, not that the statute was unconstitutional.[14]  Additionally, when the plaintiffs moved to vacate that judgment and argued substantial compliance, there was no constitutional objection raised at that hearing other than the offhanded remarks at the end of plaintiffs' counsel's argument.[15]  This failure to preserve the constitutional issues prevented the lower court from properly considering the issue, so there was no grounds for review on appeal.[16]  The Court found that the plaintiffs' petition was insufficient to raise and preserve the constitutional challenges because they "contained a multitude of constitutional challenges and only conclusory statements that various statutes were unconstitutional without any applications to the facts of this case."[17]

Additionally, the Supreme Court of Missouri found that the directive language of section 538.225 is unambiguous and mandatory so that the statute does not tend to allow for substantial compliance.[18]  Prior to 2005, the statute in question, section 538.225, stated that a court may dismiss the action if the plaintiff fails to file the proper affidavit, but that was changed to "shall file an affidavit" to require mandatory dismissal.[19]  The Court noted that it will occasionally read into the party's actions a substantial compliance with statutory procedure.  However, it stated that "this Court has refused to allow substantial compliance where it would be contrary to the unambiguous language of a statute."[20]  In analyzing section 538.225, the Supreme Court of Missouri noted that there was no statute directing courts to construe the section liberally, and that the language of the statute is unambiguous and mandatory.[21]  The use of the word "shall" in subsection (6) of the statute compared to the "may" that was in the previous version demonstrated that the legislature made a conscious decision to create a statute with mandatory, directive language.[22]  Thus, the Court held section 538.225's procedural requirements of filing of affidavits did not lend itself to substantial compliance in lieu of strict and actual compliance.
The Supreme Court of Missouri did comment, however, that even if substantial compliance could have been applied, the plaintiffs' actions would have fallen short of what would be amount to substantial compliance.[23]  Because there was nothing filed with the court, there was nothing on which the plaintiffs could have relied in substantial compliance, as the cases that support substantial compliance had at least something that was an effort to comply with the statutes' requirements but nonetheless fell short on technical or simple error.[24]  Since there was no such filing with the court, the plaintiffs cannot be said to have attempted to substantially comply with the statute.

Finally, the Supreme Court of Missouri affirmed the dismissal of case #3 as it was barred by the statute of limitations.  The Court noted, "[merely] because the plaintiffs would not have had to file case #3 but for case #2 being dismissed under section 538.225 does not invoke section 538.225 in the dismissal of case #3."[25]  Case #3 was decided independently of the previous cases and the dates for which the statute of limitations applied barred the actions presented in case #3.  The plaintiffs even admitted their claims were outside the statutes of limitations.[26]

II.  Legal Background

In order to preserve a constitutional challenge to a statute in a claim, the party must:
"(1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review."[27]

As noted in the decision for this case, the constitutional question may be raised in the petition or claim, but the challenge must be carried forward at each stage concerning the statute challenged.  The rule is in place "to prevent surprise to the opposing party and permit the trial court an opportunity to fairly identify and rule on an issue."[28]  Without the issue being heard and ruled on at the lower court, there is little on which the Supreme Court of Missouri can base its decision when deciding to affirm or reverse the decisions of the lower court. As such, it is required to preserve and address the constitutional challenges at the lower court to sustain a constitutional appeal to the Supreme Court of Missouri.[29]

The Supreme Court of Missouri has allowed substantial compliance for procedural statutes when there is "a statutory directive to construe a statute liberally or under a statute that expressly allows for substantial compliance."[30]  This liberal construction has often been recognized when there is an effort to comply with the statute's directives, but there was some slight or immaterial deviation from the form or requirements outlined in the statute.[31]  The language of the statute is paramount in determining whether substantial compliance is appropriately applied.  Directives such as "shall" will be construed to be more strict and to be followed precisely, whereas the use of "may" or "substantially as follows" in the statute will allow for substantial compliance.[32]

 The statute of limitations for a wrongful death is three years from the date the cause of action accrues.[33]  Actions against health care providers, which include medical malpractice and lost chance of recovery, have statutes of limitations of two years.[34]  If an action is brought after the timeframe outlined in the statute, it is barred and can be dismissed.
III.  Comment

While the Court's analysis of the substantial compliance doctrine for section 538.225 is a matter of first impression, the Court's decision is in line with what a basic understanding of the doctrine would have necessitated.  The statute is clearly an unambiguous and mandatory directive to plaintiffs filing medical malpractice or wrongful death petitions.  The Court's analysis illuminated the doctrine a bit further because it made clear that some sort of effort must be made in order to even consider applying substantial compliance to a party's actions.  Otherwise, the Court's opinion and the case reflect the importance of preserving constitutional challenges throughout the trial process, including any dispositive motions and hearings. Failure to do so will prevent the lower court from considering the issue and ruling on it, which removes the possibility of review on appeal.

- Justin Moody

[1] Id. at 3.
[2] Id.
[3] Id. The statute states in relevant part:
"1.  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 plaintiff's 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.
6.  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."  RSMo 538.225 (2005).
[4] Mayes, SC93254 (May 27, 2014).
[5] Id. at 4.
[6] Id.  The parties agreed that the discovery in case #1 would carry over to case #2, but this did not include the filings to the court.
[7] Id.
[8] Id. at 5. See, supra, note 4.
[9] Id.
[10] Id.
[11] Id. at 6.
[12] Id.
[13] Id. at 9-10.
[14] Id. at 10.
[15] Id.
[16] Id. at 11 (citing Niederkorn v. Niederkorn, 616 S.W.2d 529, 535 (Mo. App. 1981).
[17] Id. at 12.
[18] Id. at 19-20.
[19] Id. at 20.
[20] Id. at 18.
[21] Id. at 19.
[22] Id.
[23] Id.
[24] Id. at 20. See David v. City of St. Louis, 69 S.W.2d 353 (Mo. 1936);  State ex rel. Title Guaranty & Trust Co. v. Broaddus, 108 S.W. 544 (Mo. 1908);  Putnam v. Ross, 46 Mo. 337 (Mo. 1870). 
[25] Id. at 23.
[26] Id.
[27] United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. banc 2004).
[28] Winston v. Reorganized Sch. Dist. R-2, Lawrence Cnty, Miller, 636 S.W.2d 324, 327 (Mo. banc 1982).
[29] Mayes, SC93254 (May 27, 2014).
[30] Id. at 17 (quoting Pierson v. Treasurer of State, 126 S.W.3d 386, 388 (Mo. banc 2004)).
[31] Id. at 18.
[32] Id. at 18. See Committee for a Healthy Future, Inc. v. Carnahan, 201 S.W.3d 503 (Mo. banc 2006);  Ginger v. Halferty, 193 S.W.2d 503 (Mo. 1946);  State ex Inf. Mayfield ex rel. Bradford v. Crisp, 248 S.W.2d 664 (Mo. 1952).
[33] RSMo 537.100 (2000).
[34] RSMo 516.105 (2000).