GEORGE J. BUCKLES v. THE SKAGGS COMMUNITY HEALTH ASSOCIATION D/B/A COX MEDICAL CENTER, BRANSON, and JOHN DOE and JOHN DOE CO., Defendants-Respondents

GEORGE J. BUCKLES, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD36739
)
THE SKAGGS COMMUNITY HEALTH ) Filed: December 7, 2020
ASSOCIATION D/B/A COX MEDICAL )
CENTER, BRANSON, and JOHN DOE )
and JOHN DOE CO., )
)
Defendants-Respondents. )

APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

Honorable Jeffrey M. Merrell, Circuit Judge

REVERSED AND REMANDED

George J. Buckles (“Appellant”) filed a petition for damages for the torts of

battery and false imprisonment. Defendants filed a motion to dismiss for failure to file an

affidavit in accordance with section 538.225, RSMo 2016. The trial court granted the

motion to dismiss. The trial court’s judgment is reversed, and the case is remanded for

further proceedings.

The review of a grant of a motion to dismiss is de novo. Devitre v. Orthopedic

Center of St. Louis, LLC, 349 S.W.3d 327, 331 (Mo. banc 2011). The factual allegations

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in the petition are taken as true as well as all reasonable inferences. Id. The application

of a statute to specific facts is also reviewed de novo. Spradling v. SSM Health Care St.

Louis, 313 S.W.3d 683, 686 (Mo. banc 2010). Section 538.225.1 has been interpreted to

require: that an affidavit must be supplied with a petition if (1) the parties were in a

health care provider-patient relationship AND (2) the plaintiff’s claim in substance

relates solely to the provision of health care services.

We review de novo the trial court’s interpretation and application
of § 538.225.1. Devitre, 349 S.W.3d at 331. We apply a two-part test to
determine whether a plaintiff is required by § 538.225.1 to file a health
care affidavit. See Devitre, 349 S.W.3d at 331–32. First, we must
determine whether the relationship between the parties is that of health
care provider and recipient. Id.[] . . . Second, we must determine whether
the true claim relates solely to the provision of health care services. Id. at
332.

Spears ex rel. Clendening v. Freeman Health Systems, 403 S.W.3d 616, 619 (Mo.App.

S.D. 2012) (footnote omitted).

As [our Supreme] Court stated in Mahoney v. Doerhoff Surgical
Services, Inc., 807 S.W.2d 503, 507 (Mo. banc 1991), the purpose of
section 538.225 “is to cull at an early stage of litigation suits for
negligence damages against health care providers that lack even color of
merit, and so to protect the public and litigants from the cost of
ungrounded medical malpractice claims.” (emphasis added). Mr. Doe’s
claims against Quest are for breach of confidentiality. This is not a
medical malpractice action.
. . . Yet, the affidavit of merit required by section 538.225 is
addressed to just such a duty: a plaintiff must obtain the written opinion of
a health care provider stating that the defendant “failed to use such care as
a reasonably prudent and careful health care provider would have under
similar circumstances.”

Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 19 (Mo. banc 2013).

The allegations in this petition are that Appellant went to Defendant Skaggs

Community Health Association d/b/a Cox Medical Center Branson (“Respondent”), for

medical care; however, Appellant did not receive any medical care and chose to leave. A

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nurse instructed a security guard to stop him from leaving. The security guard “violently

assaulted, battered, attacked and restrained” Appellant. Appellant further alleged he was

injured as a result of the security guard’s conduct.

There is nothing in the petition that would require an expert’s affidavit to

determine that the Defendants “failed to use such care as a reasonably prudent and careful

health care provider would have under similar circumstances.” As correctly noted by

Respondent, there are cases that indicate that a patient can be a patient prior to receiving

care; however, Respondent has not provided any cases to support its claim that the

security guard was providing “heath care services.” The claim in this action is for an

intentional tort. As in Doe, this action is not based on what a reasonable medical

provider would have done. It cannot be said that this intentional tort, in substance, relates

solely to the provision of “health care services” under section 538.225. Id. Therefore,

Appellant was not required to provide a medical affidavit from an expert pursuant to

section 538.225 to support his petition.

The trial court’s judgment is reversed, and the case is remanded for further

proceedings.

Nancy Steffen Rahmeyer, P.J. – Opinion Author

Daniel E. Scott, J. – Concurs

William W. Francis, Jr., J. – Concurs

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