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.

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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