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]
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]
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).
