JEFFREY W. BATES, J.
Sara Spears (Mother) appeals from the order of the trial court dismissing without prejudice her cause of action against Freeman Health Systems, Ozark Center, Sherri Severson, Kelly Williams and Jennifer Forsythe (hereinafter referred to collectively as Defendants) for failing to file a health care affidavit pursuant to § 538.225.1.
In April 2010, Mother filed a petition for damages on behalf of her 11-year-old son (Son). As thereafter amended, the petition contained the following allegations. Freeman Health Systems was a non-profit corporation that owned a facility called Ozark Center. Ozark Center was operated under the name Turnaround Ranch (the Ranch). The Ranch employed Sherri Severson (Severson) and Kelly Clarkson Williams (Williams) as licensed professional counselors. The Ranch also employed Jennifer Forsythe (Forsythe) as a "targeted case manager[.]" Son was admitted to the Ranch on September 18, 2009. While at the Ranch, Severson and Williams served as his counselors. Forsythe served as Son's targeted case manager. Three times during October 2009, Son was sexually assaulted by a 16-year-old patient (Patient) at the Ranch. After each assault, Son notified Severson or other employees of the Ranch. Neither the counselors nor the Ranch reported these assaults to the local sheriff's department. The petition for damages contained seven counts. The first count alleged that Son's injuries had been caused by the negligent failure of his counselors and the Ranch to appropriately supervise Patient. The next three counts alleged negligent infliction of emotional distress, intentional infliction of emotional distress and breach of fiduciary duty based on that same failure to supervise. The fifth, sixth and seventh counts alleged negligent failure to warn Mother and Son that he would be sharing accommodations with Patient during Son's stay at the Ranch.
On December 23, 2010, the trial court heard testimony from Mary Frerer (Frerer) at a hearing for Defendants' motion to quash. Frerer was the Director of Human Resources and Risk Management for Ozark Center. She testified that the Ranch "is an adolescent residential treatment facility." The residents of the Ranch are "seriously emotionally disturbed" and they come to the Ranch "for treatment for various emotional issues, behavioral issues." Any out-of-the-ordinary occurrence at the Ranch is reported, and the reports thus generated are primarily used in developing ongoing treatment plans. The residents live in separate cottages based on their diagnoses. A "Level Four Plus" cottage houses children who are both mentally
Defendants filed motions to dismiss the amended petition because Mother did not file a health care affidavit. At the hearing on that motion, Defendants' attorneys asked the trial court to consider Frerer's testimony in determining whether the filing of a health care affidavit was required. Mother did not object to that request. After considering the allegations of the amended petition and Frerer's testimony, the trial court entered an order concluding "that a health care relationship existed between the minor plaintiff and the defendants and that the gravamen of plaintiff's claims for damages consists of claims against defendants in their capacities as health care providers." Mother was allowed 30 days to file an appropriate affidavit. When she failed to do so, the trial court dismissed the action without prejudice. Mother appealed.
Our legislature has imposed a number of limitations on traditional tort causes of action against a health care provider. See J.K.M. v. Dempsey, 317 S.W.3d 621, 625 (Mo.App.2010). Chapter 538 was "a legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services." Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 507 (Mo. banc 1991). The limitation at issue here is found in § 538.225.1, which states:
Id. As used in this subsection, the phrase "health care services" is defined to mean:
§ 538.205(5). The affidavit requirement in § 538.225.1 was intended "to cull at an early stage of litigation suits for negligence damages against health care providers that lack even color of merit, and so to protect the public and litigants from the cost of ungrounded medical malpractice claims." Mahoney, 807 S.W.2d at 507. In furtherance of that goal, Missouri courts elevate substance over form when determining whether an affidavit is required. The application of § 538.225 is not controlled by the manner in which the plaintiff characterizes the claim in the petition.
We review de novo the trial court's interpretation and application of § 538.225.1. Devitre, 349 S.W.3d at 331. We apply a two-part test to determine whether a plaintiff is required by § 538.225.1 to file a health care affidavit. See Devitre, 349 S.W.3d at 331-32. First, we must determine whether the relationship between the parties is that of health care provider and recipient. Id.
The question before us is whether a claim that medical professionals working at a residential treatment facility failed to adequately supervise two mentally ill and mentally retarded adolescents, so as to prevent one from committing a sexual assault upon the other, is one that relates solely to the provision of health care services. After reviewing the relevant statutory language, Missouri cases discussing the health care affidavit and cases from other jurisdictions applying similar statutes, we answer that question in the affirmative and affirm the trial court's decision to require a health care affidavit in the case at bar.
As noted above, a health care affidavit is required when the claims in the petition relate to "the rendering of or failure to render health care services[.]" § 538.225.1. The statutory definition of health care services includes "any services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or, if the health care provider is an institution, in the ordinary course of furthering the purposes for which the institution is organized ...." § 538.205(5). "[T]he plain and ordinary meaning of `health care' is a service which maintains or restores the soundness of the human body or mind, or aids to free the body or mind from disease or ailment." Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 660 (Mo.App.1999) (emphasis added).
Here, Patient was a mentally ill and mentally retarded adolescent who was being treated by Defendants, all of whom were health care providers, at a residential treatment center. The gist of Mother's
This Court applied that principle in St. John's Regional Health Center, Inc. v. Windler, 847 S.W.2d 168 (Mo.App.1993). There, a plaintiff who had been involuntarily hospitalized for mental illness sued the hospital for false imprisonment. Id. at 169. The plaintiff argued that the case was not governed by the § 538.225.1 requirement because it involved an intentional tort. Id. at 170. We disagreed, noting that the true claim was that the plaintiff had been improperly evaluated as needing hospitalization. Id. at 171. Thus, Windler holds that a health care affidavit will be required if the plaintiff's injuries arise from the improper diagnosis or evaluation of a person's mental condition. Id.; see also Devitre, 349 S.W.3d at 332-33 (holding that the definition of patient is not limited "to an individual who receives treatment ..."); Vitale v. Sandow, 912 S.W.2d 121, 122 (Mo.App.1995) (holding that a claim of damage arising from the defendant doctor's opinion that the plaintiff was malingering was subject to the affidavit requirement). Here, Mother's true claim involves Defendants' alleged failure to properly evaluate and treat Patient, who was a mentally ill and mentally retarded adolescent undergoing treatment by Defendants. It is difficult to envision how Mother will prove her case without an expert witness. For the foregoing reasons, we hold that the true claim in Mother's petition is a personal injury action seeking damages against a health care provider "on account of the rendering of or failure to render health care services ...." § 538.225.1.
We find support for this conclusion after reviewing persuasive authority from other jurisdictions that have considered whether their similar statutory provisions apply to allegations of patient-on-patient assaults that occur within the confines of in-patient psychiatric facilities.
For example, in W.P. v. Universal Health Services Foundation, 91 So.3d 1097 (La.Ct.App. 2012), H.P. was a minor child undergoing inpatient treatment at a mental health facility when he was sexually assaulted by another patient. Id. at 1098. The minor and his parents sued the facility, alleging, inter alia, that the defendant failed to maintain proper security, watch H.P. and keep him isolated from the other patient. Id. at 1100. The trial court dismissed the case without prejudice because the plaintiffs failed to first submit their claims for review by a medical panel as required under Louisiana's medical malpractice act. Id. at 1097 Like the language of § 538.225.1 that triggers the affidavit requirement in Missouri, the Louisiana act required prior review of actions that were "based on health care or professional services rendered, or which should have been rendered...." Id. at 1099 (italics in original omitted). The Louisiana appellate court held that review by the medical panel was required:
Id. at 1101.
Similarly, in Oak Park, Inc. v. Harrison, 206 S.W.3d 133 (Tex.App.2006), plaintiff Harrison was a mental health patient who was injured by another mental health patient during an attempt by the latter to escape from the facility. The trial court decided that no expert report was required by Texas' medical liability act because the claim did not involve health care liability. Id. at 136. On appeal, that decision was reversed. The Texas appellate court reasoned that:
Id. at 139 (citation omitted). Thus, an expert report was required for Harrison's claim. Id. at 141.
We reject Mother's argument that this case is controlled by Newland v. Azan, 957 S.W.2d 377 (Mo.App.1997), or Morrison v. St. Luke's Health Corp., 929 S.W.2d 898 (Mo.App.1996). Newland involved a sexual assault on a patient by her dentist during a procedure. Newland, 957 S.W.2d at 378. Morrison involved a patient who fell in her doctor's office. Morrison, 929 S.W.2d at 900. Because neither of those cases is factually similar to the case at bar, they are inapposite.
Mother also relies heavily on Afamefune v. Suburban Hospital, Inc., 385 Md. 677, 870 A.2d 592 (2005). We find that decision unpersuasive for the following reasons. Maryland's statute applies to claims for "medical injury." Id. at 596. The definition of medical injury — "injury arising or resulting from the rendering or failure to render health care" — is superficially
Mother also cites a number of other out-of-state cases that we have reviewed and find unpersuasive.
In sum, the trial court correctly dismissed Mother's petition without prejudice after she failed to file a health care affidavit, as required by § 538.225.1. The judgment of the trial court is affirmed.
ROBERT S. BARNEY, J. and WILLIAM W. FRANCIS, P.J., concur.