CINDY SILLYMAN v. DAVID O. BARBE, M.D., and ST. JOHN'S PHYSICIANS AND CLINICS, INC., d/b/a ST. JOHN'S CLINIC, Defendants-Respondents. , 2014 Mo. App. LEXIS 163 ( 2014 )

CINDY SILLYMAN, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD32778
)
DAVID O. BARBE, M.D., and ) Filed: February 20, 2014
ST. JOHN'S PHYSICIANS AND )
CLINICS, INC., d/b/a )
ST. JOHN'S CLINIC, )
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable Mark A. Powell, Associate Circuit Judge
AFFIRMED
This is an appeal from the dismissal of a petition seeking damages for
medical negligence. Cindy Sillyman ("Sillyman") sued Dr. David O. Barbe ("Dr.
Barbe") and St. John's Physicians and Clinics, Inc. ("St. John's"; collectively
"Defendants"), for the wrongful death of her 20-year-old son Derick Stoops
("Stoops"). The trial court entered a judgment dismissing the petition without
prejudice because Sillyman failed to file a medical expert affidavit that complied
with the requirements of Section 538.225.3.1 Sillyman appeals. We disagree with
her argument and affirm the trial court's judgment.
Standard of Review
"A trial court's grant of a motion to dismiss is reviewed de novo." White
v. Tariq, 299 S.W.3d 1, 3 (Mo. App. E.D. 2009). Similarly, the trial court's
interpretation and application of Section 538.225 is reviewed de novo. See
Spears ex rel. Clendening v. Freeman Health Systems, 403 S.W.3d 616,
619 (Mo. App. S.D. 2012).
Factual and Procedural Background
As this case involves review of the trial court's grant of a motion to
dismiss, the following averments are drawn from Sillyman's petition. During the
afternoon of December 25, 2003, Stoops went to the emergency room at Texas
County Memorial Hospital. He was admitted and treated by Dr. Barbe.
Stoops's condition did not improve. On December 26, Dr. Barbe ordered
Stoops transported to St. John's Regional Medical Center in Springfield,
Missouri. On his arrival at St. John's Regional Medical Center, Stoops
immediately suffered from respiratory failure and cardiac arrest resulting in his
death.
1Unless otherwise indicated, all statutory references are to RSMo Cum. Supp. (2013). Although
the dismissal was without prejudice, a judgment dismissing a case for failure to comply with
Section 538.225 is appealable. See Spradling v. SSM Health Care St. Louis, 313 S.W.3d
683, 686 n.4 (Mo. banc 2010); Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d
503, 506 (Mo. banc 1991).
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Sillyman sued Defendants for damages arising from the wrongful death of
Stoops. Her attorney filed health care affidavits on May 7, 2012. The affidavit
relating to the claim against Dr. Barbe stated:
1. I have obtained the written opinion of a legally qualified
health care provider which states that David O. Barbe, M.D.
failed to use such care as a reasonably prudent and careful
health care provider would do 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.
2. The written opinion was obtained by a medical doctor
licensed in the State of Missouri.
The affidavit relating to the claim against St. John's was identical except that it
listed St. John's name in the place of Dr. Barbe's name.
On April 15, 2013, Defendants filed a motion to dismiss for failure to
comply with Section 538.225. In support, Defendants noted the affidavits filed in
the case did not contain the name, address, and qualifications of the health care
provider who gave the opinion as required by Section 538.225.3. Plaintiff
responded the affidavits were sufficient because the necessary information was
otherwise available. Specifically, Plaintiff stated (1) this action was the re-filing of
a previous action; (2) defense counsel had agreed the discovery in the previous
action could be used in this case; and (3) the discovery from the previous action
contained the deposition and curriculum vitae of Sillyman's expert. Attached to
Sillyman's response were copies of the deposition and curriculum vitae of
Thomas J. Poulton, M.D. ("Dr. Poulton"). The curriculum vitae listed Dr.
Poulton's business and residential addresses as well as his educational and
professional experience.
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The trial court entered judgment dismissing the petition without
prejudice. The judgment provided as follows:
After consideration, defendant's [sic] Motion to Dismiss [u]nder
RSMo § 538.225 is sustained. After a review of the statute and the
applicable case law, it appears to the [c]ourt the filing of a
healthcare affidavit with the name, address and qualifications of the
healthcare provider is mandatory. Such an affidavit has not been
filed within 180 days in this case. The [c]ourt recognizes a
deposition of plaintiff's medical expert was taken in a previously
filed case and there was an agreement between counsel that the
discovery in the previous case could be used in this case. However,
the question is will the deposition testimony of plaintiff's medical
expert substitute for a properly filed affidavit by the plaintiff or the
plaintiff's attorney. It is this [c]ourt's opinion that based on the
plain language of the statute and Missouri case law interpreting the
statute, it does not, as a result, this case is dismissed without
prejudice pursuant to RSMo § 538.225.
Sillyman appeals.
Discussion
In her sole point on appeal, Sillyman complains the trial court erred in
dismissing her petition for failure to file an adequate health care affidavit as
required by Section 538.225. In the argument section of her brief, Sillyman
concedes the affidavits themselves did not provide the information required by
Section 538.225.3—the name, address, and qualifications of the health care
provider who provided the expert opinion—but suggests dismissal of this action
would not further the purpose of the statute. This argument is without merit.
Resolution of Sillyman's claim requires examination of the language of the
statute. Section 538.225 provides in pertinent part that:
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
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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.
...
3. The affidavit shall state the name, address, and qualifications
of such health care providers to offer such opinion.
...
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.
§ 538.225. "This Court's task in statutory interpretation is to discern the intent of
the legislature from the language used." Spradling, 313 S.W.3d at 686. "Where
the statute's language is unambiguous, there is no place for statutory
construction." State ex rel. Farley v. Jamison, 346 S.W.3d 397, 399 (Mo.
App. E.D. 2011). "We presume that the legislature intended that every word and
each provision have effect." Id. "When a statute mandates that something be
done by stating that it 'shall' occur and also states what results 'shall' occur upon
a failure to comply with the statute, it is clear that it is mandatory and must be
obeyed." Id.
In the present case, the requirement of the statute is unambiguous: it
requires the affidavit to state the name, address, and qualifications of the
plaintiff's expert. § 538.225.3. Sillyman's affidavits did not contain that
information. Thus, under the plain language of the statute, the trial court was
required to dismiss the petition without prejudice. § 538.225.6.
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Sillyman's argument to the contrary is essentially a request to have this
Court apply the concept of substantial compliance to the requirements of Section
538.225.3. She notes the purpose of the statute—to weed out frivolous lawsuits—
was satisfied in this case because she did have the necessary expert opinion and
Defendants were provided with the information required by the statute through
Dr. Poulton's deposition and curriculum vitae.
Assuming arguendo that substantial compliance with Section 538.225 is
sufficient, Sillyman's argument fails because the affidavit she filed simply did not
substantially comply with the statute. In Farley the Eastern District of this
Court addressed this exact issue. There, the affidavit was timely filed, but failed
to comply with Section 538.225.3 in that the affidavit failed to "identify the name,
address, and qualifications of the legally qualified healthcare provider[.]"
Farley, 346 S.W.3d at 399. The defendants filed a motion to dismiss for failure
to comply with the statute, and the trial court denied the motion. Id. The
defendants sought a writ of mandamus. Id. In granting the writ, the appellate
court held that the statute's language is unambiguous and that omitting the
name, address, and qualifications of the expert was not in substantial compliance
with the statute. Id. at 400. We reach the same conclusion here. Statutorily
adequate affidavits were not filed.
The trial court did not err in dismissing the petition without prejudice for
failure to file statutorily sufficient health care affidavits. Sillyman's sole point is
denied.
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Decision
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, J. - OPINION AUTHOR
JEFFREY W. BATES, P.J. - CONCURS
GARY W. LYNCH, J. - CONCURS
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