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Healthcare Law Blog Legal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

Court Applies Two-Year Statute of Limitations for Health Care Providers to Bar Plaintiff's Claim Despite Attempt to Label It as One for Ordinary Negligence

February 21, 2022 | John Mahon, Jr.

In Payne v. Rehabilitation Institute of St. Louis, the Missouri Court of Appeals, Eastern District, affirmed a trial court’s grant of summary judgment in favor of a rehabilitation hospital on statute of limitations grounds where the plaintiff filed her personal injury claim approximately two and one-half years after the date of injury. No. ED109560, 2022 Mo. App. LEXIS 37 (Ct. App. Jan. 25, 2022). Payne was receiving intensive inpatient stroke rehabilitation at the defendant’s facility and confined to a wheelchair. One day, while she was unattended, she fell out of bed and sustained injury. Payne argued that her claim was not time-barred because her injury arose out of ordinary negligence, rather than medical negligence, so her claim was governed by a five-year limitations period rather than the two-year limitations period applicable to medical negligence actions. The appellate court’s ruling confirms that, regardless of how a plaintiff may characterize her claim, any claim arising out of the provision of health care services must be brought within the two-year limitations period proscribed under § 516.105, RSMo.

The central issue on appeal was whether the alleged negligence “related to health care” and, therefore must be brought within two years from the date of her injury as required under § 516.105. At both the trial and appellate levels, Payne asserted that her claims were for general negligence not medical negligence, because she was not receiving health care services at the time of her fall injury. Therefore, Payne argued, her suit was outside of the purview of § 516.105’s two-year limitations period. Rehabilitation Institute argued that because the plaintiff’s cause of action “involve[d] conduct consistent with medical malpractice and negligence,” her claims fell under § 516.105 and were time-barred.

The court first turned to Supreme Court of Missouri analysis of § 516.105 in Robinson v. Health Midwest Development Group, where the Court specified: “Any act or omission related to the care, custody, or treatment of the patient, whether plead as ordinary negligence or negligence relating to malpractice is covered under section 516.105.” 58 S.W.3d 519, 522 (Mo. banc 2001) (emphasis added). Thus, courts must focus not on the label a plaintiff applies to her claim but the substance of the claim to decide this issue.

In support of her “ordinary negligence” argument, Payne cited Beard v. Pemiscot Memorial Health Systems, wherein the court found that a negligence claim arising out of a slip and fall incident in a shower at an inpatient psychiatric facility did not fall within the purview of § 516.105 and was not time barred event though it was filed more than two years after the injury date. 2019 U.S. Dist. LEXIS 229859 (E.D. Mo. Aug. 12, 2019). In Beard, § 516.105 did not apply because the injury was entirely incidental to the inpatient psychiatric care plaintiff was receiving and did not arise out of the provision of psychiatric health care services. Id.

The court distinguished Beard in that Payne was treated at the defendant’s facility for deficits from a stroke, which made her a high fall risk and necessitated 24-hour rehabilitative nursing care. Unlike the plaintiff in Beard, Payne’s fall risk was not merely incidental to the care she was receiving but was a central reason for which she was admitted for convalescent care. The fact that Payne was not receiving hands on therapy services at the precise moment that she fell was inconsequential to the determination of medical vs. ordinary negligence.

The court found the facts of Dunagan v. Shalom more analogous. 976 S.W.2d 285 (Mo. App. W.D. 1998). In Dunagan, a plaintiff with Alzheimer’s disease who lived in a nursing home fell on five separate occasions and was injured. Id. Dunagan argued the nursing home’s negligence arose out of safety failings rather than medical treatment and, therefore, § 516.105’s two-year limitations period did not apply to bar his claim. Id. The appellate court found that because the plaintiff was admitted to the nursing facility to receive 24-hour care for his medical conditions, his injuries related to the provision of medical care, and, thus, were time barred under § 516.105. Id.

In Payne, much like Dunagan, the appellate court upheld the trial court’s finding that the claim labeled as “ordinary negligence” nevertheless arose out of the provision of health care and was time barred under § 516.105. This decision confirms that, regardless of how a negligence claim is plead, so long as it arises out of the provision of health care, the two-year limitations period applies. The Payne court refused to weaken an important statutory protection for health care providers. The statute of limitations benefits health care providers because it curtails the timeline for suit filing and ensures health care providers will not be forced to defend against stale claims. The Payne decision makes sure this protection will remain, even when plaintiff counsel attempts to evade the statute of limitations with artful pleading. 

Missouri Court of Appeals Holds Two-year Statutory Limitations Period Does Not Apply to Action Against In-home Personal Care Provider

November 22, 2021 | John Mahon, Jr.

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 Provider

August 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.  

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