Mello v. Giliberto

Citations: 73 S.W.3d 669; 2002 Mo. App. LEXIS 233; 2002 WL 171441Docket: ED 79491

Court: Missouri Court of Appeals; February 5, 2002; Missouri; State Appellate Court

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The Missouri Court of Appeals addressed a medical malpractice case involving Susan Mello, who appealed the dismissal of her claims against both Indiana and Missouri defendants following the death of her mother, Patricia Mello, after surgery. Patricia underwent elective femoral bypass surgery at St. Joseph's Medical Center in Indiana on December 19, 1996, performed by Indiana-based doctors Giliberto, Gibson, and Guentert. The plaintiff alleged negligence, including coercion into surgery and inadequate post-operative care, leading to severe complications.

After the surgery, new physicians were brought in, and Patricia was transferred to Barnes Jewish Hospital in St. Louis, Missouri, where she received further treatment from Dr. John Lynch. The plaintiff claimed additional malpractice by the Missouri defendants, resulting in wrongful death and other claims.

The Indiana defendants moved to dismiss based on lack of personal jurisdiction, which was granted, while the Missouri defendants' dismissal was based on the plaintiff's failure to file a required health care affidavit. The trial court upheld these dismissals, rejecting the plaintiff's post-judgment motions. On appeal, the court affirmed the trial court’s decisions and also considered and accepted motions by the defendants to strike the plaintiff's brief for non-compliance with appellate rules.

The statement of facts in the plaintiff’s appeal is deemed noncompliant with multiple sections of Rule 84.04, specifically Rule 84.04(c) regarding the necessity for a fair and concise statement of relevant facts, and Rule 84.04(i), which mandates that all facts must be supported by references to the legal file. The plaintiff's arguments fail to adhere to the required format outlined in Rule 84.04(d) and do not restate the points at the beginning of the argument section as required by Rule 84.04(e), substituting them instead with one-sentence claims. Such violations could justify dismissal of the appeal, as established in Shochet v. Allen and Faith Baptist Church of Berkeley, Inc. v. Heffner. Nonetheless, the court has chosen to conduct an ex gratia review of the plaintiff’s claims to address the merits.

Regarding the dismissal of the Indiana defendants for lack of personal jurisdiction, the plaintiff asserts the trial court erred by committing procedural mistakes that denied her due process. She argues that SJMC's motion to dismiss was missing from the court file, that a stay for discovery should have been granted, and that the court improperly considered certain affidavits without proper notice. However, the court finds all these claims unsubstantiated. Specifically, it confirms that SJMC's motion was indeed present in the court file, and the trial court had discretion over discovery matters, concluding that the plaintiff failed to provide a valid basis for personal jurisdiction over the Indiana defendants.

A trial court is deemed to have abused its discretion if its ruling is illogical, arbitrary, or shocks the sense of justice, indicating a lack of careful consideration. For a plaintiff to be entitled to discovery, they must allege facts in their petition that, if true, establish jurisdiction. The court found that the plaintiff's amended petition only included legal conclusions regarding jurisdiction and did not present factual allegations. The plaintiff failed to contest this finding or demonstrate that the court erred in its conclusion. Additionally, the trial court was not required to treat the motions to dismiss—based on lack of personal jurisdiction—as motions for summary judgment, as the relevant rule applies only to motions for failure to state a claim. The court may consider affidavits in such motions without converting them into summary judgment motions since the focus is solely on jurisdiction. The plaintiff also argued that the court did not consider facts from her affidavit regarding liability; however, she did not specify which facts were ignored or provide legal support for her claims. The trial court clarified that her allegations did not constitute facts but rather legal conclusions and thoroughly analyzed her position on jurisdiction. Consequently, the court's handling of the motions to dismiss was deemed appropriate.

The plaintiff argues that the trial court incorrectly determined that Missouri did not have personal jurisdiction over the Indiana defendants, asserting that the defendants committed torts or transacted business in Missouri. She bases her claim on Missouri's long arm statute, Section 506.500, citing three main points: (1) the Indiana defendants are liable for harm to her because the patient sought treatment in Missouri for injuries initially sustained in Indiana; (2) the defendants are jointly liable with Missouri defendants due to a direct transfer during a single hospitalization; and (3) their actions led to the patient’s death in Missouri, further supported by communications initiated by the Indiana hospital to Missouri, and that the defendants sent letters and bills to the plaintiff in Missouri. She contends that Missouri is the appropriate forum since she resides there, and it is where causation and joint liability issues can be addressed conveniently.

The Indiana defendants, including Dr. Giliberto, Dr. Gibson, and Dr. Guentert, contested personal jurisdiction, each filing motions with supporting affidavits. Dr. Giliberto argued that the plaintiff failed to provide facts demonstrating that the cause of action arose from activities defined in the long arm statute and claimed minimal contacts with Missouri, stating he resided in Florida, practiced solely in Indiana, and had no involvement in the patient's care outside Indiana. He denied making calls or sending communications regarding the patient’s transfer. Dr. Gibson made similar claims, asserting he also practiced only in Indiana and had no contact with Missouri regarding the patient. Dr. Guentert's motion echoed these points, emphasizing that he had not transacted business in Missouri or participated in the patient's treatment there, maintaining that his professional relationship with the patient ended before any Missouri involvement. SJMC, the Indiana not-for-profit corporation involved, filed a motion to dismiss, arguing that the plaintiff's claims did not support jurisdiction, as all relevant actions occurred in Indiana.

The defendant denied any actions that could establish personal jurisdiction. When a defendant challenges personal jurisdiction in a motion to dismiss, the plaintiff must demonstrate a prima facie case for jurisdiction by proving: (1) the action arises from activities covered by Missouri's long-arm statute, Section 506.500, and (2) the defendant has sufficient minimum contacts with Missouri to meet due process requirements. Activities under the long-arm statute include conducting business or committing a tort within Missouri. Due process necessitates that the defendant has minimum contacts that do not violate fair play and substantial justice principles.

To evaluate minimum contacts, five factors are considered: (1) nature and quality of contact; (2) quantity of contacts; (3) relationship of the cause of action to those contacts; (4) Missouri's interest in providing a forum; and (5) convenience to the parties. In medical malpractice cases, the plaintiff must show that the healthcare provider purposefully availed itself of conducting business in Missouri. The defendant must reasonably anticipate being brought to court in Missouri, and mere effects of the defendant's actions in Missouri do not suffice for establishing jurisdiction.

The plaintiff submitted a memorandum and an "Affidavit" arguing for jurisdiction, but it contained speculative and hearsay information rather than factual evidence. The trial court ruled that the plaintiff failed to establish a prima facie case under the long-arm statute, as the claims were based on legal conclusions rather than facts. It found no due process satisfaction regarding contacts between the Indiana defendants and Missouri, noting that treatment concluded before the patient was transferred to Missouri. The court determined that the Indiana defendants' contacts did not directly cause the plaintiff’s injury in Missouri and dismissed the notion that they acted as successive tortfeasors as a basis for jurisdiction.

The plaintiff alleges that the Indiana defendants are jointly liable with the Missouri defendants for a tort committed in Missouri due to the patient's treatment in Missouri for a condition caused by the Indiana defendants. However, the court clarifies that the Indiana defendants cannot be deemed to have committed a tort in Missouri as they acted independently and were not joint tortfeasors with the Missouri defendants, who were identified as successive tortfeasors only liable for their own negligence. The claims of joint liability do not transform the Indiana defendants' actions in Indiana into a tort in Missouri, and assertions of a 'single hospitalization' lack legal support. The Indiana defendants, being an Indiana corporation, had no business or medical care operations in Missouri, while the Missouri defendants operated a hospital in St. Louis. The plaintiff failed to establish any continuing duty of care from SJMC post-transfer of the patient. Furthermore, the plaintiff's arguments regarding the Indiana defendants’ communications with Missouri do not meet the requirements for personal jurisdiction under Missouri's long-arm statute, as mere communication does not constitute sufficient minimum contacts. The court emphasizes that the focus is on the defendants' conduct in relation to Missouri, not the effects of their actions on the patient in Missouri.

In P.A.C.C.S., 728 S.W.2d at 604, the court dismissed the argument that out-of-state physicians could be held liable for tortious acts in Missouri due to the effects of their actions being felt in the state, as the plaintiff failed to establish minimum contacts with Missouri. Consequently, the court did not need to examine whether exercising personal jurisdiction would align with fair play and substantial justice. The plaintiff’s claims regarding Missouri’s interest as a forum were also disregarded since she did not demonstrate that her cause of action arose from activities covered by the long arm statute or establish minimum contacts, leading to the denial of her second point.

Regarding the dismissal of the Missouri defendants for the plaintiff's failure to file a health care affidavit under section 538.225, the plaintiff contended that such an affidavit was unnecessary and that she had substantially complied with the statute. However, Chapter 538 mandates that a health care affidavit be filed in tort actions against health care providers, stating that the defendant failed to meet the standard of care and that this failure caused the claimed damages. The affidavit must include the health care provider's qualifications and be submitted within ninety days after filing the petition, with potential extensions granted for good cause. Failure to file a proper affidavit can result in dismissal without prejudice.

The plaintiff argued that her claims were based on "common sense errors" that did not require expert testimony, but the statute does not permit this exception. The Missouri Supreme Court clarified that an affidavit is necessary even for claims deemed straightforward regarding the standard of care. The relationship between the parties must be that of a health care provider and recipient, and the claims must pertain solely to health care services as defined by the statute.

A health care affidavit was deemed necessary in Ferrier-Harris, Ltd. v. Sanders, 905 S.W.2d 123 (Mo.App.1995) due to allegations of medical neglect against nursing home providers. The plaintiff's claims were directly tied to the health care services rendered, thus requiring affidavits for each defendant. The trial court correctly concluded that the plaintiff needed to comply with the affidavit requirement.

The plaintiff contended she substantially complied by obtaining a verbal opinion from medical personnel regarding the case's merit; however, the statute mandates a written opinion from a qualified health care provider, which she did not provide. Additionally, the plaintiff sought extensions for filing the affidavit. Although the court has discretion to grant such extensions for good cause, the trial court found no abuse of discretion in this case. The plaintiff had initially filed her petition in February 1999, received an extension until June 1999, but dismissed her case without filing an affidavit.

She subsequently refiled in June 2000 and again requested extensions but failed to meet the affidavit requirement. Following various motions and confirmations regarding expert affidavits, the court denied her requests to set aside earlier dismissals, citing a lack of good cause for her delays and failure to submit valid affidavits. Ultimately, the trial court's judgment was affirmed, and the defendants' motions to strike the appeal were denied as moot. The plaintiff, a licensed attorney, represented herself throughout this process.