Williams v. American National Red Cross
Filing
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MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss (ECF No. 20) is GRANTED in part and DENIED without prejudice in part, in accordance with the foregoing. 20 Signed by District Judge Jean C. Hamilton on 11/9/12. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTOINE WILLIAMS,
Plaintiff(s),
vs.
AMERICAN NATIONAL RED CROSS,
Defendant(s).
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Case No. 4:12CV1516 JCH
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss, filed October 23, 2012.
(ECF No. 20). The motion is fully briefed and ready for disposition.
BACKGROUND1
Defendant American National Red Cross is a non-profit organization that responds to and
provides aid in the aftermath of natural disasters. (Plaintiff’s Original Petition (“Complaint”), ¶ 2).
On July 3, 2010, Plaintiff went to Defendant’s facility located at 3533 Dunn Road in Florissant,
Missouri, to donate blood. (Id., ¶ 5). The phlebotomist employed by Defendant was having trouble
obtaining blood from Plaintiff’s left arm, and so a co-worker suggested using a heating pad to initiate
the blood flow. (Id., ¶¶ 5, 6). A heating pad was heated in a microwave, and then placed on
Plaintiff’s left arm for 2-5 minutes. (Id., ¶ 7). When the pad was removed there was a bright red
blotch on his arm, but the phlebotomist assured Plaintiff it would resolve over time. (Id., ¶ 8). By
the next day, however, the area where the heating pad was placed had blistered. (Id., ¶ 9). Plaintiff
therefore sought medical care, and was diagnosed with 3rd degree burns on his left arm, which later
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The Court views the facts in the light most favorable to Plaintiff, as it must for purposes
of resolving the instant Motion to Dismiss.
scabbed. (Id., ¶ 9). Plaintiff ultimately developed keloids in the area of the burn, and further suffered
sharp pain in his fingers, nerve damage, and limited use of his left arm. (Id., ¶¶ 9, 10). Based on the
foregoing, Plaintiff filed the instant Complaint asserting claims for negligence (Count I), punitive
damages for negligence (Count II), negligent supervision (Count III), and punitive damages for
negligent supervision (Count IV).
On October 3, 2012, Plaintiff filed a Motion for Ninety-Day Extension to File Expert Affidavit
pursuant to Missouri Statute § 538.225. (ECF No. 13). In his motion, Plaintiff maintained the
affidavit was unnecessary, because this matter does not involve a claim of medical negligence as
defined by Missouri Statute § 516.105. Plaintiff nevertheless sought the ninety-day extension, in the
interest of preserving his rights should the Court find his action is subject to § 538.225's affidavit
requirement. The Court granted Plaintiff’s motion on October 10, 2012, and currently Plaintiff has
until January 8, 2013, within which to file the health care affidavit. (ECF No. 17).
As stated above, Defendant filed the instant Motion to Dismiss on October 23, 2012. (ECF
No. 20). In its motion, Defendant acknowledges Plaintiff’s time for filing the appropriate affidavit
has not expired. Defendant requests that the Court determine sections 538.205 through 538.230 are
controlling in this case, however, and dismiss Plaintiff’s Complaint if he does not file the requisite
health care affidavit by January 8, 2013.
DISCUSSION
Mo.Rev.Stat. § 538.225 provides in relevant part as follows:
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
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damages claimed in the petition.2
(Mo.Rev.Stat. § 538.225.1). Elsewhere, “health care provider” is defined in part as, “any other
person or entity that provides health care services under the authority of a license or certificate.”
(Mo.Rev.Stat. § 538.205.4). Furthermore, “health care services” are defined as:
[A]ny services that a health care provider renders to a patient in the ordinary course
of the health care provider’s profession or, if the health care provider is an institution,
in the ordinary course of furthering the purposes for which the institution is organized.
Professional services shall include, but are not limited to, transfer to a patient of
goods or services incidental or pursuant to the practice of the health care provider’s
profession or in furtherance of the purposes for which an institutional health care
provider is organized.
(Mo.Rev.Stat. § 538.205.5). “[T]he resolution of the issue of whether a party must file a health care
affidavit depends on whether the relationship of the parties is that of health care provider and
recipient and if the true claim relates only to the provision of health care services.” Devitre v.
Orthopedic Center of St. Louis, LLC, 349 S.W.3d 327, 331-332 (Mo. banc 2011) (internal quotation
marks and citation omitted).
In his response to Defendant’s Motion to Dismiss, Plaintiff asserts this action is not subject
to the requirements of § 538.225, as under the circumstances at issue Defendant was not a health care
provider, and was not providing a health care service. The Court finds Plaintiff’s position is
precluded by the Eighth Circuit’s ruling in Smith v. Paslode Corp., however, as follows:
[Plaintiffs] first contend section 516.1053 does not apply because the Red
Cross is not an “entity providing health care services.” We disagree. The Red Cross
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§ 538.225.6 provides that in the event the plaintiff or his attorney fails to file the affidavit,
upon motion of any party the Court must dismiss the action without prejudice.
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The statute at issue in Smith, Mo.Rev.Stat. § 516.105, provides in relevant part as
follows: “All actions against physicians, hospitals,....and any other entity providing health care
services and all employees of any of the foregoing acting in the course and scope of their
employment, for damages for malpractice, negligence, error or mistake related to health care shall
be brought within two years from the date of occurrence of the act of neglect complained of...”
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is an entity, and under Missouri law, the procurement, processing, distribution, or use
of whole blood, plasma, blood products, and blood derivatives for transfusion into the
human body is a service. Mo.Stat.Ann. § 431.069 (Vernon 1992). The district court
found the undisputed evidence showed the Red Cross uses medical expertise in
collecting, processing, and distributing blood. 799 F.Supp. at 966. We agree with
the district court that the Red Cross is an entity that provides health care services....
Other Missouri statutes support our view that the Red Cross provides health
care services. After the Missouri legislature enacted section 516.105, it enacted
statutes that limit noneconomic damages in tort actions for improper health care.
Mo.Stat.Ann. §§ 538.205-.230 (Vernon 1988). For the purpose of chapter 538,
“health care services” are defined as including “transfer to a patient of goods or
services....in furtherance of the purposes for which an institutional health care
provider is organized.” Id. § 538.205(5). “Health care provider” is defined as “any....
entity that provides health care services under the authority of a license or certificate.
Id. § 538.205(4). The Red Cross collects and transfers blood in furtherance of its
institutional purpose, and the undisputed evidence shows the Red Cross performs
blood banking under a Food and Drug Administration license. Thus, it appears that
under chapter 538, the Red Cross would be a health care provider that provides health
care services.
Smith v. Paslode Corp., 7 F.3d 116, 117-118 (8th Cir. 1993). The Court thus finds the Red Cross
is a health care provider for purposes of § 538.225.
To the extent Plaintiff asserts his claims sound in simple negligence rather than negligence
related to the provision of health care, the Eighth Circuit addressed this as well, holding that because
the actions at issue were implemented by physicians, nurses, and other health care professionals
exercising professional judgment, they were related to health care. Smith, 7 F.3d at 118. The same
reasoning holds true in this case, as the Court finds that at the time of the incident, Plaintiff’s blood
was being drawn by a licensed practical nurse exercising her professional judgment. Under these
circumstances, the Court holds Plaintiff’s claims are subject to the requirements of § 538.225.4 The
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Several of the cases cited by Plaintiff are not to the contrary, as they apparently
distinguish between claims for which the Red Cross is not a “health care provider” providing a
“health care service,” such as ones for failure to adopt proper testing and screening procedures to
eliminate contamination of blood donations, from claims for which it is, such as ones involving the
medical malpractice of its employees acting pursuant to their professional licenses. See, e.g.,
Miles Laboratories, Inc. Cutter Laboratories Div. v. Doe, 556 A.2d 1107, 1125 (Md. App. 1989);
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Court agrees with Plaintiff that dismissal would be premature, however, as Plaintiff previously was
granted until January 8, 2013, within which to file the necessary affidavit.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (ECF No. 20) is
GRANTED in part and DENIED without prejudice in part, in accordance with the foregoing.
Dated this 9th day of November, 2012.
/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
Kaiser v. Memorial Blood Center of Minneapolis, Inc., 486 N.W.2d 762, 767-768 (Minn. 1992).
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