              SUPREME COURT OF MISSOURI
                       en banc
PAUL M. LANG and ALLISON M. BOYER                            )
                                                             )
                Appellants,                                  )
                                                             )
v.                                                           )      No. SC94814
                                                             )
DR. PATRICK GOLDSWORTHY, ET AL.,                             )
                                                             )
                Respondents.                                 )
                                                             )

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
                   The Honorable Charles H. McKenzie, Judge

                               Opinion issued October 13, 2015

         The issue on appeal here is whether the trial court erred in granting a motion to

dismiss a wrongful death action alleging medical negligence pursuant to section 538.225 1

because no health care affidavit was filed in the case. Plaintiffs argue that the affidavit

requirement of the statute is unconstitutional because it arbitrarily bars their case from

proceeding in violation of the “open courts” doctrine and the right to a jury trial. MO.

CONST. art. I, secs. 14, 22(a). Although Plaintiffs had in their possession a compliant

affidavit that they had filed in their first cause of action, they did not refile it in their

second after voluntarily dismissing their first suit. Because the trial court properly

1
    Unless otherwise indicated, all statutory references are to RSMo Supp. 2013.

                                                 1
sustained Defendants’ motion to dismiss for failure to comply with the requirements of

section 538.225, the dismissal without prejudice is affirmed. 2

                                    Factual Background

       Family members (Plaintiffs) filed a wrongful death action alleging that the

negligent chiropractic services of Dr. Patrick Goldsworthy, Dr. Aston Goldsworthy, and

Patrick L. Goldsworthy (Defendants) caused the death of Michael Lang, their relative.

Plaintiffs timely filed an affidavit stating that they obtained the written opinion of a

qualified health care provider in support of their claims as required by section 538.225.

After two and a half years of litigation, Plaintiffs voluntarily dismissed that action and

timely refiled an identical petition in the same court, but did not attach the affidavit to

their new petition.

       Defendants filed a motion to dismiss Plaintiffs’ second action for failure to file the

affidavit pursuant to section 538.225. In their response in opposition, Plaintiffs

acknowledged that they had not filed the affidavit in the second action, but argued that

section 538.225 unconstitutionally barred their access to the courts, violated their right to

a trial by jury, and constituted an impermissible special law. The trial court dismissed the

action without prejudice because Plaintiffs failed to file the affidavit within 180 days of

filing the second action. Section 538.225. This appeal follows.




2
  This Court has jurisdiction pursuant to MO. CONST. art. V, sec. 3 as Plaintiffs challenge
the validity of a statute of this state.
                                               2
                                    Standard of Review

       The standard of review for a trial court’s grant of a motion to dismiss is de novo.

Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). In determining the

appropriateness of the trial court’s dismissal of a petition, an appellate court reviews the

grounds raised in the defendant’s motion to dismiss. In re Estate of Austin, 389 S.W.3d

168, 171 (Mo. banc 2013). If the motion to dismiss cannot be sustained on any ground

alleged in the motion, the trial court’s ruling will be reversed. Id. Constitutional

challenges to a statute are also issues of law that this Court reviews de novo. State v.

Young, 362 S.W.3d 386, 390 (Mo. banc 2012).

                                          Analysis

       Plaintiffs ask this Court to determine the constitutional validity of section 538.225,

which provides in relevant part:

       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
       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.

                                          ***
       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.

The language of section 538.225 unambiguously requires: (1) plaintiffs to file an affidavit

in medical negligence cases; and (2) trial courts to dismiss without prejudice any such


                                              3
action if the affidavit is not filed. Mayes v. St. Luke’s Hosp. of Kansas City, 430 S.W.3d

260, 271 (Mo. banc 2014). 3 Here, Plaintiffs’ second cause of action was dismissed

without prejudice for failing to timely file the health care affidavit. Due to the passage of

time and the three-year statute of limitations governing wrongful death claims, they were

prohibited from refiling their claims in a third suit. Section 537.100, RSMo 2000. As a

result, Plaintiffs allege that section 538.225 unreasonably and arbitrarily deprives them of

access to the courts and their right to a jury trial in violation of article I, sections 14 and

22 of the Missouri Constitution. 4

       The merits of these arguments do not need to be reached here. This Court will

avoid deciding a constitutional question if the case can be resolved fully without reaching

it. State ex rel. SLAH, L.L.C. v. City of Woodson Terrace, 378 S.W.3d 357, 361 (Mo.

banc 2012). Plaintiffs’ timely filing of an affidavit pursuant to section 538.225 in their

first action against Defendants demonstrated that Plaintiffs were aware of the statute’s

procedural requirements. Moreover, neither party argues that the affidavit filed by

Plaintiffs in the first action failed to meet any of the requirements of the statute. Had

Plaintiffs stapled the affidavit already in their possession to their petition in the second


3
 Prior to 2005, section 538.225 provided that a trial court “may” dismiss without
prejudice any action in which the plaintiff failed to file an affidavit. Sec. 538.225.5,
RSMo 1986. This Court upheld the prior version of section 538.225 against a
constitutional challenge in Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503,
508-513 (Mo. banc 1991). The statute was amended in 2005 to require mandatory
dismissal. See Mayes, 430 S.W.3d at 271.
4
 Additionally, Plaintiffs make other constitutional arguments. They contend that section
538.225 violates their federal right to a jury trial and is an impermissible special law in
violation of article III, section 40 of the Missouri Constitution.

                                                4
action, they would have avoided dismissal. It was Plaintiffs’ own inaction that prevented

them from being able to pursue their second suit. 5

       Similarly, section 538.225 did not prevent Plaintiffs from refiling a third petition

alleging their medical negligence claims after the trial court dismissed without prejudice

their second action. As required by section 538.225, the trial court dismissed the second

action without prejudice, which would have permitted Plaintiffs to refile their petition in

a third suit along with the required affidavit. However, because the second action was

not filed until nearly a year after the dismissal of the first action, Plaintiffs were

prevented from filing a third action within the one-year savings provision of section

537.100. 6 Plaintiffs have not challenged the constitutional validity of section 537.100 in

this appeal, nor do they argue that the statute’s savings provisions should be interpreted

to permit them to refile their claims. In short, section 538.225 is not the root of Plaintiffs’

quandary.


5
  Further, Plaintiffs do not allege they were unable to comply with section 538.225, that
such compliance was so unduly burdensome as to constitute a material impediment to
suit, or that such compliance required an evidentiary showing that would not be a part of
Plaintiffs’ burden at trial. Although they stated at oral argument that no threshold
showing of negligence would have been necessary to make a submissible case on their
res ipsa loquitor claim, Plaintiffs did not raise this argument in the trial court or assert it
in their points relied on in this Court. As such, this argument is not preserved.
6
  Section 537.100 permits a plaintiff who has “take[n] or suffer[ed] a nonsuit” to refile an
action within one year of the date of the nonsuit. Plaintiffs in this action relied on this
savings provision when they refiled their second action more than a year after the original
limitations period had expired. It is not clear whether a savings provision like the one in
section 537.100 may be used more than once. See Mayes, 430 S.W.3d at 266 (noting that
the plaintiffs in that case did not argue that their third action was timely filed under
section 537.100’s savings provision). This Court does not address whether a savings
statute could be used a second time by Plaintiffs in this action.

                                               5
          Plaintiffs argue that dismissal of their case under section 538.225 is arbitrary

because the trial court found that their claims should be tried to a jury when it denied

Defendants’ motion for summary judgment in the first suit. This argument is unavailing.

In the instant case, the trial court’s determination in the first action that Plaintiffs’ claims

merited a jury trial did not alleviate Plaintiffs of the obligation to refile the affidavit in the

second action. As this Court held on the strikingly similar facts in Mayes, section

538.225 requires plaintiffs to file an affidavit in every medical negligence action: it

makes no exception for a plaintiff who previously filed an affidavit in an identical prior

action. 430 S.W.3d at 271-72. Moreover, Plaintiffs’ argument assumes that the discovery

filed in the first action was also filed in the second, which was not true. Nothing before

the trial court in the second action indicated that Plaintiffs’ case was meritorious because

Plaintiffs failed to refile the affidavit or any of the discovery obtained in the previous

action.

          Plaintiffs had up to 180 days to file their affidavit pursuant to section 538.225.

Because they failed to do so, the trial court properly granted Defendants’ motion to

dismiss.

                                           Conclusion

          The trial court’s dismissal without prejudice is affirmed.

                                                     ______________________________
                                                     Mary R. Russell, Judge


Breckenridge, C.J., Fischer, Wilson, and Stith, JJ., concur;
Teitelman, J., dissents in separate opinion filed;
Draper, J., concurs in opinion of Teitelman, J.
                                                 6
             SUPREME COURT OF MISSOURI
                                         en banc

PAUL M. LANG and ALLISON M. BOYER, )
                                   )
                     Appellants,   )
                                   )
vs.                                )                        No. SC94814
                                   )
DR. PATRICK GOLDSWORTHY, ET AL., )
                                   )
                     Respondents.  )

                                  DISSENTING OPINION

       I respectfully dissent. The circuit court dismissed Plaintiffs’ petition for failure to

comply with the section 538.225 affidavit requirement. Plaintiffs’ argument that section

538.225 violates the open courts clause is directly before this Court. I would address

Plaintiffs’ argument that section 538.225 violates the “open courts” clause in article I,

section 14 of the Missouri Constitution and hold that it does.

       Article I, section 14 provides: “That the courts of justice shall be open to every

person, and certain remedy afforded for every injury to person, property or character, and

that right and justice shall be administered without sale, denial or delay.” An open courts

violation is established upon a showing that: (1) a party has a recognized cause of action;

(2) that the cause of action is being restricted; and (3) the restriction is arbitrary or

unreasonable. Kilmer v. Mun, 17 S.W.3d 545, 549-550 (Mo. banc 2000).
       In this case, the section 538.225 affidavit requirement arbitrarily restricted

Plaintiffs from pursuing a recognized cause of action seeking compensation for the

wrongful death of their loved one. The statute requires circuit courts to dismiss a case if

an affidavit is not filed. The primary justification for the mandatory affidavit requirement

is that it screens out non-meritorious cases. This justification fails for at least two

reasons.

       First, the purpose of our court system is to screen out non-meritorious cases

through motions to dismiss, discovery, motions for summary judgment and trials that

nearly always include expert testimony. The justification for the affidavit requirement is

duplicative of the purpose of the courts and, therefore, amounts to nothing but a

restriction on access to the courts.

        Second, in practice, the affidavit requirement imposes considerable practical

burdens on injured parties as a prerequisite to obtaining access to the courts. The

necessity of an affidavit requires injured parties to scour the medical community to find a

health care provider willing to criticize the actions of his or her colleagues. This effort

often requires injured parties to seek out non-local providers and incur the associated

costs and delays prior to bringing a claim. The affidavit requirement is, therefore, not

only duplicative of the purpose of the court system, it also amounts to a considerable

practical burden imposed on injured parties as a prerequisite to simply exercising their

constitutional right to access the courts to seek a remedy for their injuries.




                                               2
       The affidavit requirement of section 538.225 violates article I, section 14 of the

Missouri Constitution. I would reverse the judgment dismissing Plaintiffs’ petition for

failure to file an affidavit.

                                          ______________________________________
                                          Richard B. Teitelman, Judge




                                             3
