Wann v. St. Francois County et al

Filing 130

MEMORANDUM AND ORDER - Accordingly, for all of the foregoing reasons, IT IS HEREBY ORDERED that defendant Ahmad Ardekani, M.D.'s Motion to Dismiss for Failure to File a Healthcare Affidavit in Compliance with Mo. Rev. Stat. Section 538.225 [10 1] is GRANTED. IT IS FURTHER ORDERED that defendant Ahmad Ardekani, M.D.'s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim 99 is DENIED AS MOOT. IT IS FURTHER ORDERED that defendant Americare at Maplebrook Assisted Living's Motion to Dismiss for Failure to File a Healthcare Affidavit in Compliance with Mo. Rev. Stat. Section 538.225 106 is GRANTED. IT IS FURTHER ORDERED that defendants Farmington Missouri Hospital Company's and Nicole Ro tter's Motion to Dismiss for Failure to File a Healthcare Affidavit in Compliance with Mo. Rev. Stat. § 538.225 108 is GRANTED as to the claims raised against defendant Farmington Missouri Hospital Company and DENIED as to the claims r aised against Nicole Rotter. IT IS FURTHER ORDERED that Counts 3, 4, 5, and 6 of plaintiff's complaint are dismissed without prejudice against defendants Farmington Missouri Hospital Company, Dr. Ahmad Ardekani, and Americare at Maplebrook Assisted Living. IT IS FURTHER ORDERED that Counts 3, 4, 5, and 6 of plaintiff's complaint shall proceed against defendant MSW Nicole Rotter. Signed by District Judge Catherine D. Perry on June 16, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD LEE WANN,
Plaintiff,
v.
ST. FRANCOIS COUNTY, MISSOURI,
et al.,
Defendants.

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No. 4:15 CV 895 CDP

MEMORANDUM AND ORDER
Plaintiff Richard Lee Wann filed this action on June 8, 2015, alleging that
various state and private actors violated a number of his state and federal rights in
relation to his confinement in health care facilities that led to guardianship/
conservatorship proceedings in St. Francois County probate court. A number of
claims against a number of defendants were previously dismissed. (See Memo. &
Order, ECF 83.) The claims that remain are those raised in Counts 3 through 6 of
the complaint against defendants Farmington Missouri Hospital Company, Dr.
Ahmad Ardekani, Social Worker Nicole Rotter, and Americare at Maplebrook
Assisted Living, alleging unlawful imprisonment, unlawful imprisonment by
chemical restraint and battery, and intentional and negligent infliction of emotional
distress. These defendants now move to dismiss the claims without prejudice,
arguing that Wann failed to file health care affidavits, which are required by Mo.

Rev. Stat. § 538.225 in actions related to the provision of health care services.
Because the allegations in Wann’s complaint show that MSW Rotter is not a
health care provider as that term is defined under the statute, Wann is not required to
file a health care affidavit regarding his claims against her. His claims against
Farmington, Dr. Ardekani, and Americare, however, require health care affidavits.
Because he failed to file them as required under the statute, I must dismiss his claims
against these defendants without prejudice.
RELEVANT BACKGROUND
On May 3, 2013, Wann was admitted to Mineral Area Regional Medical
Center (MARMC), which is owned by defendant Farmington Missouri Hospital
Company, after falling at his home. He was not released from MARMC after being
treated, however, but instead was admitted to Behavioral Health in MARMC’s
geriatric ward and was given psychotropic medications as ordered by defendant Dr.
Ahmad Ardekani. Wann alleges that as a result he experienced hallucinations and
confusion. Dr. Ardekani and defendant MSW Nicole Rotter participated in Wann’s
care while he was admitted to MARMC’s geriatric ward, each signing Wann’s
Interdisciplinary Treatment Plan upon his admission. During this admission, MSW
Rotter noted in Wann’s medical record that he had had a major decline in life skills
and could not reside alone because of his lack of cognitive abilities.
On May 16, MSW Rotter sent Wann’s information to the St. Francois County
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Public Administrator to begin guardianship and/or conservatorship proceedings.
Although Wann was scheduled to be released from MARMC on May 16, Dr.
Ardekani and MSW Rotter extended Wann’s release date to May 24.
On May 17, the public administrator filed a petition in probate court for the
emergency appointment of a temporary guardian on behalf of Wann. The petition
was accompanied by Dr. Ardekani’s deposition. While this petition was pending,
Dr. Ardekani and MSW Rotter extended Wann’s MARMC release date from May
24 to May 30, and later extended the release date to June 6. On June 4, however,
Wann was transferred to another care facility, The Arbors (which is operated by
defendant Americare), whereupon he continued to receive psychotropic
medications.
On June 13, the probate court entered a consent judgment appointing the
public administrator as temporary guardian ad litem over Wann and as temporary
conservator ad litem over his estate.
On January 30, 2014, the probate court permitted Wann to return to his private
residence. The public administrator’s appointment as temporary guardian was
continued, however, through June 2014. The remainder of the case was terminated
in July 2014.
The claims remaining in this cause of action are brought in Counts 3 through 6
of the complaint against Farmington, Dr. Ardekani, MSW Rotter, and Americare.
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These claims of unlawful imprisonment (Count 3), unlawful imprisonment by
chemical restraint and battery (Count 4), intentional infliction of emotional distress
(Count 5), and negligent infliction of emotional distress (Count 6) are based on
Wann’s assertions that he was involuntarily medicated with psychotropic
medications that caused him to experience hallucinations and to be diagnosed as
having an altered mental state, and that the continued administration of such
medication was done for the purpose of maintaining his altered mental state so that
he would remain subject to residential care through the guardianship/
conservatorship proceedings.
DISCUSSION
Each remaining defendant has filed a motion to dismiss Wann’s remaining
claims for his failure to comply with Mo. Rev. Stat. § 538.225, which requires:
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.
Mo. Rev. Stat. § 538.225.1. A separate affidavit must be filed for each named
defendant not later than ninety days after the filing of the complaint, unless the time
is extended by the court for a period not to exceed an additional ninety days. Mo.
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Rev. Stat. §§ 538.225.4, 538.225.5. “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.” Mo. Rev. Stat. § 538.225.6. This statute applies
to state law tort claims brought in federal court based on the provision of health care
services. Smith v. Planned Parenthood of St. Louis Region, 225 F.R.D. 233, 242
(E.D. Mo. 2004).
In determining whether Wann was required to file health care affidavits under
the statute, I must consider whether the relationship between the parties is one of
health care provider and patient, and whether the “true claim” relates only to the
provision of health care services. Crider v. Barnes-Jewish St. Peters Hosp., Inc.,
363 S.W.3d 127, 130 (Mo. Ct. App. 2012). This analysis applies no matter how
Wann characterizes his claims, id., even if they are couched in terms of intentional
tort. J.K.M. v. Dempsey, 317 S.W.3d 621, 626-27 (Mo. Ct. App. 2010); St. John's
Reg'l Health Ctr., Inc. v. Windler, 847 S.W.2d 168, 170-71 (Mo. Ct. App. 1993).
See also Budding v. SSM Healthcare Sys., 19 S.W.3d 678, 680 (Mo. banc 2000)
(legislature’s use of the words “any action” in § 538.225 shows its intent that the
statute not be limited to only negligence actions). In making this determination on
a motion to dismiss, I look to the facts as they are alleged in the complaint. See
Jacobs v. Wolff, 829 S.W.2d 470, 472-73 (Mo. Ct. App. 1992).
As used in § 538.225, the term “health care provider” means
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any physician, hospital, health maintenance organization, ambulatory
surgical center, long-term care facility including those licensed under
chapter 198, dentist, registered or licensed practical nurse, optometrist,
podiatrist, pharmacist, chiropractor, professional physical therapist,
psychologist, physician-in-training, and any other person or entity that
provides health care services under the authority of a license or
certificate[.]
Mo. Rev. Stat. § 538.205(5). The term “health care services” is defined as
any 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(6).
Defendants Farmington, Dr. Ardekani, and Americare:
In his complaint, Wann identifies Farmington Missouri Hospital Company as
the owner or controller of MARMC, a medical center where he was taken to receive
medical care, was ultimately admitted to the geriatric unit, and received
psychotropic medications that rendered him incapacitated. Dr. Ardekani is
identified as a licensed physician who was a psychiatrist with hospital privileges at
MARMC in the geriatric unit. Finally, Wann identifies Americare as the assisted
care facility where he was confined after leaving MARMC’s geriatric unit. Given
Wann’s identification of these defendants as a hospital, physician, and long-term
care facility, they are considered to be “health care providers” for purposes of §
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538.225.
Further, the allegations in Wann’s complaint arise out of the manner and
method by which these defendants provided health care services to him. Although
he couches his claims as ones for unlawful imprisonment, unlawful imprisonment
by chemical restraint and battery, and intentional and negligent infliction of
emotional distress, a review of the allegations within each of these claims shows that
they all arise out of and relate only to defendants’ provision of health care services,
and specifically, that they:
* falsely asserted he was unstable in order to admit him to the MARMC
geriatric ward;
* refused to release him on his scheduled release dates;
* gave him psychotropic drugs without his consent for the purpose of falsely
imprisoning him in the MARMC geriatric ward;
* made false representations in reports in order for the public administrator
to procure temporary guardianship/conservatorship over him and his estate;
* kept him falsely imprisoned at The Arbors where he was given
psychotropic drugs without his consent;
* which caused him to suffer emotional distress and physical stress.
All of these claims relate solely to the wrongful acts of the health care providers in
providing health care services to Wann, and the damages he seeks are for his
personal injuries. See Windler, 847 S.W.2d at 172 (“personal injuries” include “all
actions for injuries to the person, whether to the person's rights or to the person's
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body.”). The true claims in these counts of the complaint are therefore within the
statute requiring a health care affidavit. Mello v. Giliberto, 73 S.W.3d 669, 679
(Mo. Ct. App. 2002) (statute applied to all claims raised in plaintiff’s complaint,
including claims of battery, lack of informed consent, and violations of state policies
on care and treatment of elderly). See also Vitale v. Sandow, 912 S.W.2d 121 (Mo.
Ct. App. 1995) (affidavit required for claim of libel because doctors’ challenged
statements constituted their medical diagnosis and evaluation of plaintiff’s
condition); Windler, 847 S.W.2d at 170-71 (affidavit required for claim of false
imprisonment where the basis for the claim was the incorrect medical determination
that plaintiff needed to be confined in psychiatric hospital); Jacobs, 829 S.W.2d at
472-73 (affidavit required for claim of negligence against nurse who, inter alia,
allegedly submitted false report regarding plaintiff’s activities during rehabilitation).
Although Wann argues that the defendants are precluded from claiming that
they provided health care services to him, given that their answers to his complaint
contained general denials of the alleged conduct, I am limited to the allegations of
the complaint when determining defendants’ motions to dismiss. Because the
gravamen of all of Wann’s remaining tort claims against these health care
provider-defendants relate only to alleged injuries that arose out of their rendering of
health care services to him, Wann was required to file an appropriate affidavit as to
each of these defendants under § 538.225. Wann failed to file such affidavits
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within the time permitted under the statute. I therefore must grant these defendants’
motions to dismiss for Wann’s failure to comply with § 538.225.
Accordingly, Wann’s claims of unlawful imprisonment, unlawful
imprisonment by chemical restraint and battery, intentional infliction of emotional
distress, and negligent infliction of emotional distress – raised in Counts 3 through 6
of his complaint – are dismissed without prejudice as to defendants Farmington, Dr.
Ardekani, and Americare.
Defendant MSW Rotter:
With respect to Wann’s claims against MSW Rotter, however, there are no
facts alleged in Wann’s complaint to support a finding that she is a health care
provider as defined under the statute. In his complaint, Wann identifies MSW
Rotter as a “social worker with hospital privileges at MARMC, Geratric Unit, and
upon information and belief was an employee of MARMC.” (Compl., ECF 1 at
para. 8.) He claims that Rotter participated in his care during his admission to
MARMC’s geriatric ward, made notations in his medical record regarding his ability
to engage in life skills, sent information to the public administrator regarding
guardianship and/or conservatorship proceedings, and participated with Dr.
Ardenaki to extend Wann’s release date from MARMC.
While these are arguably “health care services” as that term is defined, there is
nothing in the complaint demonstrating that MSW Rotter meets the statutory
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definition of “health care provider.” Her status as an MSW is not within the
delineated health care positions listed in the statute; nor is there any factual basis in
the complaint that would lead me to believe that she is “any other person . . . that
provides health care services under the authority of a license or certificate.” While
I understand that “licensed persons . . . providing health-care services constitute[]
‘health care providers,’ even though they [are] not specifically listed in the statute,”
State ex rel. Red Cross Pharm., Inc. v. Harman, 423 S.W.3d 258, 263-64 (Mo. Ct.
App. 2013), they nevertheless must be licensed or certified to provide such services.
In Missouri, an MSW – that is, a person holding a master’s degree in social work – is
not required to be licensed in order to hold herself out to be a social worker. See
Mo. Rev. Stat. § 337.604.
Nothing in Wann’s complaint shows that MSW Rotter is licensed or certified
to provide health care services. She therefore is not considered to be a health care
provider for purposes of the affidavit requirement of § 538.225, and her motion to
dismiss for Wann’s failure to file such an affidavit will be denied.
CONCLUSION
To summarize, the claims raised against defendants Farmington Missouri
Hospital Company, Dr. Ahmad Ardekani, and Americare at Maplebrook Assisted
Living in Counts 3 through 6 of the complaint are dismissed without prejudice.
Accordingly, no claims remain in this cause of action against these defendants. The
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claims will go forward against defendant MSW Rotter, however. She therefore
remains a defendant in this action on the following claims: Count 3 (unlawful
imprisonment), Count 4 (unlawful imprisonment by chemical restraint and battery),
Count 5 (intentional infliction of emotional distress), and Count 6 (negligent
infliction of emotional distress).
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that defendant Ahmad Ardekani, M.D.’s
Motion to Dismiss for Failure to File a Healthcare Affidavit in Compliance with Mo.
Rev. Stat. § 538.225 [101] is GRANTED.
IT IS FURTHER ORDERED that defendant Ahmad Ardekani, M.D.’s
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim
[99] is DENIED AS MOOT.
IT IS FURTHER ORDERED that defendant Americare at Maplebrook
Assisted Living’s Motion to Dismiss for Failure to File a Healthcare Affidavit in
Compliance with Mo. Rev. Stat. § 538.225 [106] is GRANTED.
IT IS FURTHER ORDERED that defendants Farmington Missouri
Hospital Company’s and Nicole Rotter’s Motion to Dismiss for Failure to File a
Healthcare Affidavit in Compliance with Mo. Rev. Stat. § 538.225 [108] is
GRANTED as to the claims raised against defendant Farmington Missouri Hospital
Company and DENIED as to the claims raised against Nicole Rotter.
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IT IS FURTHER ORDERED that Counts 3, 4, 5, and 6 of plaintiff’s
complaint are dismissed without prejudice against defendants Farmington Missouri
Hospital Company, Dr. Ahmad Ardekani, and Americare at Maplebrook Assisted
Living.
IT IS FURTHER ORDERED that Counts 3, 4, 5, and 6 of plaintiff’s
complaint shall proceed against defendant MSW Nicole Rotter.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 16th day of June, 2016.

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