Elmore et al v. Mansfield et al
ORDER denying 69 Defendant Penkalski's motion to dismiss case. Signed on 5/21/12 by District Judge Greg Kays. (Francis, Alexandra)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
JOHN P. ELMORE, et. al.,
CONNIE MANSFIELD, et. al.,
Case No. 3:11-cv-5088-DGK
ORDER DENYING DEFENDANT PENKALSKI’S MOTION TO DISMISS
This case arises out of allegations that Defendants caused Plaintiff John Elmore’s
daughters, Plaintiffs Sarah and Rachel Elmore, to be wrongfully removed from his custody and
subjected to a traumatic and humiliating investigation into false sexual abuse claims. Plaintiffs
have brought multiple claims for damages under 42 U.S.C. § 1983 and Missouri state law.
Now before the Court is Defendant Melissa Penkalski’s Motion to Dismiss for Failure to
File a Health Care Provider Affidavit (Doc. 69). Penkalski, a nurse, contends the claims against
her should be dismissed because Plaintiffs have not complied with Missouri Revised Statute §
538.225.1, which requires a plaintiff in a medical malpractice action to file an affidavit from a
healthcare provider certifying the merits of the case. Plaintiffs respond that 1) this is a state
procedural rule which does not apply in federal court; and 2) even if the statute supplies a
substantive rule which a federal court must apply, it is inapplicable here because Plaintiffs have
not alleged medical malpractice.
Holding that the statute supplies a substantive rule of decision which applies in federal
court, but that Plaintiffs have not brought any medical malpractice claims to which it applies, the
motion is DENIED.
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.
The statute is designed to prevent frivolous medical malpractice suits from being filed. Crider v.
Barnes-Jewish St. Peters Hosp., Inc., No. ED 96907, 2012 WL 121151, at *2 (Mo. Ct. App. Jan.
17, 2012). It recognizes that the nature of medical malpractice actions “are such that expert
medical testimony is required to prove the acceptable standard of professional care,” and that
without such testimony, the plaintiff cannot meet her burden of proof. Morrison v. St. Luke’s
Health Corp., 929 S.W.2d 898, 905 (Mo. Ct. App. 1996).
The law, however, “applies only to medical malpractice tort actions.” Grace v. Harris,
4:06-CV-1510-CEJ, 2007 WL 3530200, at *2 (E.D. Mo. Nov. 13, 2007). A health care affidavit
is required only if the relationship between the parties is that of health care provider and recipient
and if the ‘true claim’ relates to the provision of health care services. Lucarelli v. Renal
Treatment Centers-Illinois, Inc., 2008 WL 440225, at *3 (E.D. Mo. Sept. 24, 2008) (citation
As a threshold matter, the Court holds that the statute supplies substantive Missouri law
which this Court must apply. Smith v. Planned Parenthood of St. Louis, 225 F.R.D. 233, 241
(E.D. Mo. 2004) (conducting detailed analysis and concluding the statute “is substantive state
law which must be applied.”); see Mackovich v. United States, 630 F.3d 1134, 1135 (8th Cir.
2011) (upholding without comment district court’s dismissal of claim for failure to comply with
The question here is whether the statute applies to Plaintiffs’ claims against Penkalski. If
the counts brought against Penkalski are medical malpractice claims, the statute applies. If they
are not, the statute is inapplicable.
The Court holds that Plaintiffs claims against Penkalski are not for medical malpractice.
The ‘true claims’ against Defendant Penkalski are in the nature of assault and battery. Although
Penkalski is a nurse who may have honestly believed she was delivering medical services to the
children, the allegation here is that she was without lawful authority to touch the children, thus
she was assaulting them. Plaintiffs are not complaining about the manner in which Penkalski
conducted the childrens’ medical examinations, for example, that she did not use appropriate
skill in examining the girls. The allegation is that Penkalski’s actions were an unconstitutional
and illegal invasion of the girls’ privacy and bodily integrity: Count III alleges her actions
violated the girls’ Fourth Amendment rights; Count VI alleges she committed assault and battery
on the children; and Count IX alleges she conspired with numerous other Defendants to violate
Plaintiffs’ constitutional rights by separating the girls from their father. These are assault
allegations, not medical malpractice allegations, thus § 538.225 does not apply.
Contrary to Defendant’s suggestion, Crider v. Barnes-Jewish St. Peters Hosp., Inc. is not
analogous. In Crider a deaf plaintiff sued her healthcare providers under the Missouri Human
Rights Act for failing to provide interpretation services during the delivery of her child, alleging
this failure resulted in her being administered an epidural without her consent. No. ED 96907,
2012 WL 121151, at *2 (Mo. Ct. App. Jan. 17, 2012). Crider is factually distinct in that the
plaintiff voluntarily went to the hospital and placed herself in the hospital’s care as a patient. Id.
at *1. There was no question that the parties formed a health care provider-recipient relationship
between them as required by the statute, or that the plaintiff agreed to the epidural. Id. at *2-3.
The malpractice claim arose because Plaintiff had allegedly not been adequately informed of all
the risks of the procedure, not because she did agree to it. Id. By contrast, in the present case no
health care provider-recipient relationship was ever formed because the children never agreed
either to be Penkalski’s patients or to be examined by her.
Finally, the Court notes that applying the statute to the facts in this case would not serve
the purpose of the statute. The statute’s goal is to prevent frivolous medical malpractice lawsuits
from being filed by requiring a plaintiff to prove early on in the litigation that at least one
medical expert believed that the standard of care was not followed. The statute thus “weeds out”
those cases where no medical malpractice actually occurred. The question in the present case,
however, is whether Penkalski violated 42 U.S.C. § 1983 or committed assault.
determination turns on facts that can be found by a lay person. It is not a medical determination
that requires expert medical testimony to prove. Consequently, applying the statute here would
not serve any constructive purpose but would delay timely resolution of this case on the merits.
Accordingly, the Court holds § 538.225.1 does not apply to the claims in this case.
For the reasons discussed above, the motion (Doc. 69) is DENIED.
IT IS SO ORDERED.
Dated: May 21, 2012
/s/ Greg Kays
UNITED STATES DISTRICT JUDGE
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