Missouri Court of Appeals Holds Two-year Statutory Limitations Period Does Not Apply to Action Against In-home Personal Care ProviderNovember 22, 2021 | John Mahon, Jr. and Hannah Chanin
In Noelke v. Heartland Independent Living Center, the Missouri Court of Appeals, Eastern District, reversed a trial court’s grant of summary judgment in favor of an in-home personal care provider on statute of limitations grounds, where the plaintiff had filed her personal injury suit two years and one day after the date of injury. The suit was brought by a plaintiff with spina bifida resulting in paraplegia. Noelke claimed that defendant Heartland’s employee, a certified nurse’s aide, injured her with hot water while bathing, resulting in severe permanent injury requiring skin grafting and debridement surgery. This decision has potentially significant implications for individual in-home care providers and their employers.
The central issue was which statutory limitations period applied – the two-year limitations period in § 516.105, RSMo. (for actions against health care providers), or the general five-year limitations period in § 516.120 for personal injury and other types of actions. This distinction was critical because the suit was filed less than five years but more than two years after the injury date.
Heartland argued that since its employee was providing health care services to the plaintiff pursuant to a vendor contract with the Missouri Department of Health and Senior Services, it qualified as a health care provider “that provides health care services under the authority of a license or certificate” under § 538.205(6), and thus § 516.105’s two-year limitations period applied to bar the claim. The trial court agreed and granted Heartland’s motion for summary judgment.
On appeal, Noelke argued her claim was one for ordinary negligence and not a medical negligence claim against a health care provider, and thus the five-year limitations period applied. She argued Heartland failed to establish it was a health care provider under Missouri law or that its employee was performing a health care service at the time of the injury.
The Court of Appeals agreed with Noelke and held that Heartland did not satisfy the statutory requirements, and the two-year limitations period did not apply. The court stated that in-home personal care services are not one of the enumerated professions under § 538.205(6), RSMo., and these providers do not otherwise qualify as health care providers, because they are not required to practice under the authority of a license or certificate. The court was not persuaded by Heartland’s argument that its contract with the Missouri Department of Health and Senior Services qualified it as an entity providing health care services.
The court was also not persuaded by the fact that Heartland’s employee was a nurse’s aide certified by the State of Missouri. The court explained:
“… [the] employee’s certification is irrelevant to Heartland’s status as an entity providing health care services. Only Heartland, not the individual employee, was named in the lawsuit, and thus only Heartland’s status as a health care provider determines the statute of limitations… courts do not consider the certifications of the individual employees in determining whether the employer meets the definition of a health care provider.” (Emphasis added).
The Noelke court cited the 1999 Stalcup v. Orthotic & Prosthetic Lab, Inc. decision for the proposition that courts do not consider certifications of individual employees in determining whether the employer meets the definition of a health care provider. The Stalcup court held that the employer lab did not meet the definition of a health care provider, and the two-year statute of limitations was inapplicable, even though the employee who performed a prosthetic fitting was a certified prosthetist. The lab also had argued it qualified as a health care provider because it was a lab certified by the American Board for Certification in Orthotics and Prosthetics, and that the statute does not require licensing or certification by a governmental body. The court disagreed and concluded that government regulation is the authority that the statute requires.
The plaintiff in Stalcup relied on expert testimony from the Director of Northwestern University's Prosthetic and Orthotic Center to establish the lab’s deviation from the standard of care. This expert was a certified prosthetist who was familiar with the employee, also a certified prosthetist. The expert testified that, in his opinion, the procedures employed by the prosthetist and his employer fell below the skill level employed by certified prosthetists. The authors believe this testimony suggests the lab and its employee were, in fact, providing a health care service, and that the two-year limitations period should have applied.
The Noelke court also cited the 2004 Payne v. Mudd Court of Appeals decision, where the court distinguished its facts from Stalcup and found that the two-year limitations period applied. The Payne court held that “unlike fitters of prosthetics, hearing instrument specialists such as Mudd are licensed by the State of Missouri, and the practice of fitting hearing instruments is a regulated profession in Missouri.”
One case the Noelke parties and court did not seem to consider is the 2013 Court of Appeals decision in State ex rel. Red Cross Farm, Inc. v. Harman, which addressed who is or is not a “health care provider”. Harman did not involve a statute of limitations issue but instead involved another statutory provision – the “affidavit of merit” requirement in § 538.225. The court held a pharmacy qualified as a health care provider, and thus the affidavit of merit requirement applied. The court found a pharmacy satisfied the definition of health care provider in that a pharmacist is one of the professions listed in the statutory definition, and it would be incongruous to hold that a pharmacist is a health care provider, but the pharmacy employer where the pharmacist works is not.
The Harman court cited the 1994 Court of Appeals decision in PS vs. Psychiatric Coverage Ltd., which observed that “public-policy grounds” support the conclusion “that a professional corporation providing health care services through licensed practitioners is a health care provider for the purposes of Chapter 538”. The Harman court also cited a 2005 federal district court ruling in Henry v. Mylan Pharms., Inc. where the court concluded that “It would be unfair to hold a corporate pharmacy liable for the actions of its employee, the pharmacist, but not extend to the pharmacy the same statutory rights the pharmacist holds.”
In Noelke, the defendants are seeking to have the case reviewed by the Missouri Supreme Court, but it is not yet known if the Supreme Court will agree to do so. The authors believe this case was incorrectly decided in that the statutory protections afforded to a certified nurse’s aide should have applied to Heartland. This position is largely based on the public policy argument expressed in the Harman case (and others cited therein) that the Noelke court did not seem to consider. We will continue to monitor this case, and report on any further developments.
Supreme Court of Missouri Upholds Constitutionality of Noneconomic Damage Cap in Case Against Healthcare ProviderAugust 24, 2021 | John Mahon, Jr. and Terrence O'Toole, Jr.
The Supreme Court of Missouri, in a case filed against a healthcare provider defendant, has upheld the constitutionality of Missouri’s statutory noneconomic damage cap. The Velazquez v. University Physician Associates case had been closely monitored by various stakeholders, because the case has significant implications for patients and healthcare providers, as well as other litigants. The Court also analyzed another important cap related issue in determining which cap year is appropriate to apply the statutory cost of living escalator to account for inflation.
Procedurally, the case involved cross-appeals from plaintiff as to the trial court’s reduction of damages, and the healthcare provider defendants’ appeal of the plaintiff verdict on several grounds. The plaintiff had alleged negligence in the cesarean delivery of her child and in her postpartum care. The jury found in plaintiff’s favor, allocating 100% of fault to the physician defendants. The jury awarded $30,000 in economic damages and $1 million in noneconomic damages. The trial court granted the physicians’ Motions for Remittitur asking the court to reduce the total noneconomic damage award to $400,000. The plaintiff opposed these Motions by making a constitutional objection and arguing that the higher noneconomic damage cap amount for “catastrophic” personal injury applied. The trial court did not find the noneconomic damage caps to be unconstitutional and agreed with plaintiff that the higher cap amount applied, thereby reducing the noneconomic damage award from $1M to $748,828 (using the 2019 cap year because that was the trial year).
The Noneconomic Damage Caps Do Not Violate
the Missouri Constitution's Right to Trial by Jury
On appeal, plaintiff argued the noneconomic damage caps violated her constitutional right to trial by jury as it existed at common law before the State Constitution’s first adoption in 1820. The Court addressed and rejected this same argument in the 2012 Sanders v. Ahmed decision, where the Court held that wrongful death is a statutory cause of action that did not exist at common law, and therefore the Legislature has the power to define the remedy available (and impose damage caps) since it created the cause of action. The Sanders decision reached the opposite conclusion of the 2012 Watts v. Lester E. Cox Medical Center case, in which the Court declared the noneconomic damage caps unconstitutional in medical negligence actions because they were common law claims rather than statutory claims.
The Velazquez Court found that Watts did not control because in 2015, the Legislature amended certain statutes to provide a new statutory cause of action to replace the common law claim for damages against a healthcare provider. The Court found the Legislature has the authority to abolish common-law causes of action, as it had done before when it abolished certain common-law negligence claims against employers by enacting a statutory workers’ compensation scheme. Thus, because all medical negligence actions are now statutory causes of action, and the Legislature has the authority to enact statutory noneconomic damage caps, the current noneconomic damage caps do not violate the constitutional right to trial by jury.
Judge Draper was the lone dissenter from the Court’s ruling, arguing that the principal opinion provides the Legislature with unfettered authority to limit the constitutional right to trial by jury through hostile legislation when, in fact, Missouri voters are the only ones with the power to change the Constitution. In his view, the 2015 statutory revisions were a “blatant end run” around the Missouri Constitution's right of trial by jury because they converted the common law medical malpractice cause of action into a statutory one merely to impose the same statutory caps the Court previously struck down for infringing on the right to trial by jury. Judge Draper argues that the principal opinion erodes the right of trial by jury to a mere privilege that may be withdrawn by legislative prerogative.
The Applicable Noneconomic Damage Cap is Based on Trial Year
Rather than Year of Underlying Injury
The Velazquez Court rejected the healthcare provider defendants’ argument that applying the noneconomic damage cap at the time of trial (2019 – $748,828) – rather than the cap in effect at the time of the alleged injury (2015 – $700,000) – violated protections afforded by the Missouri Constitution against retrospective application of law.
Noting that § 538.210.8, RSMo. “unambiguously express[ed] the legislative intent that a plaintiff’s non-economic damages award be protected from inflation,” the annual adjustment for inflation merely affected a procedure or remedy and did not run afoul of the constitutional proscription against retrospective laws. As a result, the Court held that the determination of the applicable noneconomic damage cap year is based on the time of trial, not the time of injury, and upheld the trial court’s reduction of the noneconomic damages to $748,828 using the 2019 cap year.
The Velazquez decision is an important victory for Missouri healthcare providers because it affirms the constitutionality of the noneconomic damage caps in cases against healthcare provider defendants. This affords the parties in those cases greater predictability in in terms of case value. The decision also provides courts and litigants clarity as to which cap year applies to pending and future cases.
COVID Liability Bill Update - Governor Signs Legislation Shielding Healthcare Providers and Others From Most COVID-Related LawsuitsJuly 27, 2021 | John Mahon, Jr.
As discussed in our June 1, 2021, blog post, the Missouri Legislature passed a COVID liability bill (SB 51) that contains protections for healthcare providers, manufacturers, and other businesses from tort liability related to the COVID-19 pandemic. On July 7, Governor Parson signed the legislation, which has an effective date of August 28, 2021.
Whether COVID-19 tort liability protections are reasonable and necessary is a hotly debated topic among various stakeholders, including the Missouri Chamber of Commerce, the American Medical Association, and trial lawyer organizations. Proponents of the new law believe it is critical to the State's economic recovery and to stopping those who would seek to profit from the pandemic. Opponents argue that the law will provide blanket immunity to negligent nursing homes and others who harm innocent Missourians.
As discussed in our December 21, 2020 blog post, Governor Parson has encouraged lawmakers to author this sort of tort liability legislation since at least November 2020, when he issued a written proclamation on the topic. SB 51 passed the Missouri Senate in February 2021. A key benefit of the bill to defendants generally is protection from suits stemming from COVID-19 exposures unless a plaintiff can show clear and convincing evidence of recklessness or willful misconduct and the exposure caused personal injury.
There are protections in the bill specific to healthcare providers. In the healthcare context, the bill states that “[a]n elective procedure that is delayed for good cause shall not be considered recklessness or willful misconduct.” There is also a shortened limitations period for bringing a COVID-19 medical liability action. Such an action “may not be commenced in any Missouri court later than one year after the date of the discovery of the alleged harm, damage, breach, or tort unless tolled for proof of fraud, intentional concealment, or the presence of a foreign body which has no therapeutic or diagnostic purpose or effect.”
The bill also limits punitive damages in a COVID-19 related action to a maximum of nine times the compensatory damages. However, § 510.265, RSMo. (2005), may provide greater protection to healthcare provider defendants, in that it limits punitive damages to $500,000, or five times the net amount of the judgment awarded to the plaintiff, whichever is greater.
SB 51 comes in the wake of the filing of thousands of COVID-related lawsuits nationally. Missouri alone has seen more than 140 COVID-related suits since the start of 2020. One potential unintended consequence of this legislation could be a sharp rise in COVID-related suits filed hastily in Missouri courts during the several weeks leading up to the August 28 effective date to circumvent the new law. Should this occur, many of these suits could be meritless and lacking adequate pre-suit investigation.
Missouri will not be alone in providing COVID-19 tort liability protections. Other states have done so through executive order and/or legislative action. In addition, federal liability protections are already available under the 2005 Public Readiness and Emergency Preparedness (PREP) Act, which provides immunity to certain defendants, including healthcare provider defendants in certain situations.
We will continue to monitor the implementation of this new law and its impact on our courts.
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