                 In the Missouri Court of Appeals
                         Eastern District
                                     DIVISION TWO

MARY ANN THOMAS,                              )       No. ED98955
                                              )
       Appellant,                             )       Appeal from the Circuit Court
                                              )       of St. Louis County
vs.                                           )
                                              )       Hon. Mark D. Seigel
AMY K. MILLER, M.D.,                          )
                                              )       Filed:
       Respondent.                            )       June 17, 2014


       Mary Ann Thomas appeals from the granting of summary judgment on her claims

against Amy K. Miller, M.D., for injuries arising from an abdominoplasty performed

after liposuction. The motion for summary judgment was based on Thomas’s failure to

submit a health care affidavit in accordance with Section 538.225.1. Thomas argues that

her claim against Dr. Miller was for battery and, therefore, she was not required to file a

health care affidavit. Even if she was so required, Thomas contends, the trial court

should have dismissed her case without prejudice instead of entering summary judgment.

We find that a health care affidavit is required in this case, but agree that the case should

be dismissed without prejudice.

       Dr. Miller performed liposuction and an abdominoplasty (or skin recision) on

Thomas in December of 2006. In October of 2010, Thomas filed a petition against Dr.

Miller for damages resulting from the abdominoplasty, alleging medical negligence,
informed consent negligence, negligence res ipsa loquitor and battery. 1 Ultimately, all

counts except the battery claim were dismissed without prejudice on the defendant’s

motion to dismiss for failure to file an affidavit as required by Section 538.225.1. 2

Thomas had made no attempt to file a health care affidavit that complied with the statute

until the hearing on Dr. Miller’s motion to dismiss, and filing the affidavit at that point

was untimely. See Section 538.225.5 (affidavit must be filed within 90 days of the filing

of the petition unless court grants up to an additional 90 days for good cause shown).

The count that remained alleged that Dr. Miller “intentionally inserted a scalpel in

Plaintiff’s abdomen and performed a surgical procedure called an abdominoplasty.

Plaintiff was not informed of the nature of the procedure and did not consent to it.”

Thomas pled that she “suffered an improper placement of the incision, a wound edge

discrepancy, infection, excess drainage, an infected hematoma, scarring, abdominal

numbness, and a weakened abdominal wall,” among other damages.

        Dr. Miller filed a motion for summary judgment, arguing again that Thomas was

required to file an affidavit on her remaining count because, despite being titled

“battery,” the true claim was for medical negligence. Dr. Miller requested summary

judgment in her favor and, in the memorandum in support, specified that the petition

should be dismissed without prejudice.               Thomas responded that she had pled the

necessary elements of a medical battery claim—namely, a nonconsensual touching—and

that no health care affidavit was required in this case. Before the trial court on that

motion were portions of the parties’ depositions and the deposition of Dr. Hubert

Weinberg (plaintiff’s medical expert), all of which appear to have been taken during

1
  Thomas previously filed the same action against Dr. Miller, conducted discovery and then voluntarily
dismissed the case.
2
  Initially all four counts were dismissed, but that dismissal was set aside and the case was reopened.


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discovery conducted in the suit Thomas had voluntarily dismissed before filing this

petition. With her response, Thomas also filed her own affidavit. After a hearing, the

trial court issued an order and judgment, finding that plaintiff’s true cause of action was

one for medical negligence, which required the filing of a health care affidavit. The trial

court granted the motion for summary judgment and entered judgment in favor of the

defendant. This appeal follows.

       In her first point on appeal, Thomas maintains her argument that Section 538.225

does not apply because her true claim is medical battery. We disagree.

       Section 538.225.1 states:

       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
       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.


We review the trial court’s interpretation and application of Section 538.225.1 de novo.

Devitre v. Orthopedic Center of St. Louis LLC, 349 S.W.3d 327, 331 (Mo. banc 2011).

We apply a two-part test to determine whether a plaintiff is required to file a health care

affidavit under the statute.    Id. at 331-32.     First, we must determine whether the

relationship between the parties is that of health care provider and recipient. Id. Here,

there is no dispute that Dr. Miller was a health care provider and Thomas the recipient.

Second, we must determine whether the true claim relates solely to the provision of

health care services.   Id. at 332.    “This analysis applies no matter how a plaintiff

characterizes his or her claims. We will not allow a plaintiff to disguise his or her



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medical malpractice claim in order to avoid filing a health care affidavit.” Crider v.

Barnes-Jewish St. Peters Hospital, Inc., 363 S.W.3d 127, 130 (Mo. App. E.D. 2012).

       Thomas relies on Devitre for the proposition that as long as the essential elements

of a battery claim are properly pled, the claim is not one for medical malpractice and no

affidavit is required. In Devitre, the Supreme Court pointed out that substance is to be

elevated over form when reviewing the true nature of a petition. 349 S.W.3d at 334.

There, like here, the plaintiff argued that his claim was for battery. Id. Within the

context of medical treatment, a battery can occur when a physician performs a medical

procedure without consent. Id. To establish battery on the grounds that the physician

lacked consent, the plaintiff must plead and prove that consent was not given or was

withdrawn. Id. In Devitre, the plaintiff had alleged that he was intentionally assaulted

and battered when the doctor forced him to move his arm beyond its range of motion

causing pain and other damage. Id. at 334-35. Attached to his petition was a transcript of

the recording of the doctor’s examination. Id. at 335. It revealed that the plaintiff had

told the doctor “don’t press on me” and “don’t do that doctor.” Id. The Court concluded

that he had not alleged a nonconsensual touching because there was no indication that the

plaintiff had pulled his arm away or told the doctor to stop the exam. Id. Thus, the true

nature of that claim was medical malpractice, not battery, and an affidavit was required

under Section 538.225.1. Id.

       Thomas contends that she pled a nonconsensual touching as required by Devitre.

Perhaps on the face of the petition alone, one could conclude that Thomas has stated a

claim for medical battery because she alleged that she “did not consent” to the

abdominoplasty. This may be why that count survived the motion to dismiss, where the




                                            4
court considers only what is contained in the pleadings. See id. at 331. Thomas argues

that neither the law nor the facts changed between the denial of the motion to dismiss and

the granting of the summary judgment motion. But the materials the court had before it

to consider in determining the true nature of Thomas’s claims changed: excerpts from

the parties’ deposition and the medical expert’s testimony were attached to both the

motion for summary judgment and the response, and Thomas also included her own

affidavit with her response. Thomas contends that the court improperly considered these

matters outside the pleadings, including the ones she herself put before the court. She

cites Devitre again to support the proposition that only the pleadings may be considered

in determining the necessity of filing a health care affidavit. In that case, however, the

issue arose on a motion to dismiss. Id. Here, the issue has arisen on a motion for

summary judgment.

       We have found no other Missouri state case in which the health care affidavit

requirement in Section 538.225 was raised as an issue in a motion for summary

judgment. There is one federal district court case dismissing a case for failure to file an

affidavit under this statute on a defendant’s motion for summary judgment. Prosser v.

Nagaldinne, 2013 WL 308770 at *1 (E.D.Mo. January 25, 2013) (slip op.). There

appears to be nothing in the statute that precludes the issue from being raised in this way

or at this stage in the litigation. When a party fails to file an affidavit, the case is to be

dismissed “upon motion of the party.” Section 538.225.6. The statute does not specify

or limit the type of motion. Moreover, although the purpose of the affidavit requirement

is to eliminate frivolous medical malpractice claims at an early stage of litigation, there

are no time constraints on when a party can move to have the case dismissed for failure to




                                              5
file that affidavit.   See Crider, 363 S.W.3d at 130 (discussing purpose of statute

generally). We see no reason why this issue cannot be raised at any time on any type of

motion—weeding out frivolous claims even at this later stage in the case serves the

statute’s purpose. Moreover, it was proper to consider the matters outside the pleadings

to determine the true nature of this claim. See Spears ex rel. Clendening v. Freeman

Health Systems, 403 S.W.3d 616, 622 n. 4 (Mo. App. S.D. 2012) (trial court properly

considered testimony outside pleadings, without objection from plaintiff, on motion to

dismiss for failure to file health care affidavit because motion based on facts outside the

record).

       The record before the trial court on this motion for summary judgment

demonstrates that—despite alleging that she did not consent—the true nature of

Thomas’s claim involves the manner of her consent to the abdominoplasty and whether

Dr. Miller deviated from the standard of care in accepting that consent. In Crider, this

Court addressed the difference between lack of consent and manner of consent when

determining whether a plaintiff’s true claim is for medical negligence. 363 S.W.3d at

131. In that case, the plaintiff, who was deaf, alleged that when she was admitted to the

hospital to give birth, she notified the defendant’s staff of her desire to have a natural

delivery without an epidural. Id. at 128. She alleged that she refused to consent to any

pain medication that was not absolutely necessary.        Id.   She alleged that she was

encouraged to have the epidural, but was not provided an interpreter to explain with sign

language why an epidural was necessary. Id. The plaintiff asserted that, without an

interpreter, the defendants could not effectively explain the risks and benefits of an

epidural and could not understand the plaintiff’s wishes and instructions and thereby did




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not obtain “informed consent” from the plaintiff. Id. at 128-29. This Court found that

the true claim was for medical negligence, not a Missouri Human Rights Act violation as

plaintiff had stated in her petition. Id. at 131. The Court found that the wrong alleged

was the manner in which the defendant obtained consent to the epidural. Id. “When a

plaintiff’s ‘true claim’ is that a defendant failed to appropriately obtain informed consent,

a health care affidavit is required.” Id.

       Here, Thomas stated in her affidavit that before the liposuction, she had told Dr.

Miller that she did not want any surgical procedure to remove excess skin because she

could not take the extra time off work to heal from any additional surgery. She also

testified that she had “no recollection of having any conversation with Defendant or

anyone in Defendant’s office between the time period the sedatives took effect in the

morning prior to the tumescent liposuction procedure and when I awoke at approximately

4:30 p.m.”

       Dr. Miller’s handwritten notes after the liposuction indicate that the

abdominoplasty was performed “after discussion” with patient. Dr. Miller testified that

Thomas had been asleep during the liposuction, but that after she awoke and stood up,

Dr. Miller could see that there was excess skin that needed to be fixed. At that point,

according to Dr. Miller, Thomas “was awake and conversing with us.” Thomas appeared

“alert” to Dr. Miller or they would not have asked her to stand up.            Once it was

determined that Thomas was alert, Dr. Miller stated that she discussed the possibility of

skin recision with Thomas and at some point Thomas said yes. Dr. Miller indicated that

she got “verbal consent” from Thomas twice.




                                             7
       Dr. Weinberg testified that Thomas did not recall the post-liposuction discussions

with Dr. Miller because Thomas was under the influence of the pre-operative medications

when and if any discussion occurred regarding the need for abdominoplasty. Thus, she

was “not aware and alert to make an informed consent.”            Also, according to Dr.

Weinberg, Thomas was particularly sensitive to medication and Dr. Miller should have

known to give her only half the pre-operative medication dosage. He testified that the

possibility of a skin recision should have been discussed with Thomas before any

medication was given and written consent obtained prior to the day of surgery. Dr.

Weinberg also testified that Dr. Miller deviated from the standard of care in the operation

procedures themselves.

       Thomas does not claim that she did not consent immediately after the

liposuction—rather, Thomas claims she cannot remember anything from the time she was

sedated until she woke up after the abdominoplasty. As in Crider, the true nature of

Thomas’s claim revolves around whether she was in any condition to give informed

consent and whether the doctor should have accepted that consent. In the same way any

conversations the deaf patient had with the doctors in Crider were allegedly affected by

the lack of a sign language interpreter, Thomas’s consent was allegedly affected by her

sedation. Therefore, the question here is whether Dr. Miller failed to appropriately obtain

informed consent and, as in Crider, a health care affidavit was required.

       Point I is denied.




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         In her second point on appeal, Thomas claims that the trial court erred by entering

summary judgment in favor of Dr. Miller because the only remedy for failure to file an

affidavit pursuant to Section 538.225.1 is dismissal without prejudice. 3 We agree.

         Section 538.225.6 of the statute requires the trial court to dismiss the action

without prejudice, upon motion of the party, if the plaintiff does not file a health care

affidavit. See id. at 130; see also SSM Health Care St. Louis v. Schnieder, 229 S.W.3d

279, 287 (Mo. App. E.D. 2007) (upon motion, dismissal is mandatory, not discretionary

as in earlier version of statute). The trial court commits error when it dismisses a case

with prejudice under these circumstances. See Devitre, 349 S.W.3d at 330 n 3. As

discussed above, the failure to file an affidavit was raised in a motion for summary

judgment, which normally requires the court to reach the merits of the case. But it clearly

did not reach the merits here and stated in its order that the motion was being granted for

the failure to comply with the health care affidavit statute. In this situation, dismissal

without prejudice is the proper remedy even though the issue was raised in a motion for

summary judgment. See Borges v. Missouri Public Entity Risk Management Fund, 358

S.W.3d 177, 184 (Mo. App. W.D. 2012) (where standing argument raised in motion for

summary judgment or other motion including matters outside pleadings, court must enter

dismissal not summary judgment).

         Point II is granted.

         We affirm the trial court’s finding that Thomas was required to file an affidavit

under Section 538.225.1 and failed to do so. We reverse the entry of summary judgment


3
  Dr. Miller argues that this point is moot because there is a docket entry indicating the case was dismissed
without prejudice. That entry is from May of 2011, when the court granted the motion to dismiss as to all
counts. That order then was set aside, and the case was reopened and disposed of by this summary
judgment as indicated in the August 2012 docket entry showing the case disposition as “tried by court.”


                                                      9
in Dr. Miller’s favor and enter the order the trial court should have entered, dismissing

Thomas’s petition without prejudice. See Rule 84.14.




                                            _________________________________
                                            ROBERT G. DOWD, JR., Judge

Lawrence E. Mooney, P.J. and
Sherri B. Sullivan, J., concur.




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