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Trial court sanctions medical malpractice plaintiff counsel for false affidavits of merit.

14 May 2026

ABSTRACT: In a medical malpractice/wrongful death case pending in Nodaway County, Missouri, a trial court judge sanctioned a plaintiff attorney after determining he filed false affidavits of merit. The court dismissed all four nurse defendants, barred further amendment of the petition, authorized attorney’s fees, and referred plaintiff’s counsel to the Office of Chief Disciplinary Counsel.

Affidavits have always occupied a critical role in litigation. They are sworn statements used to support motions, satisfy statutory requirements, establish service, verify discovery responses, and authenticate facts. Because courts often rely on affidavits without live testimony, their integrity is essential.

A false affidavit can take many forms:

Claiming personal knowledge the affiant does not possess
Misstating dates, communications, or records
Omitting material qualifications or limitations
Attaching altered or incomplete documents
Signing without review or without understanding the contents

In healthcare liability cases, affidavits of merit are particularly significant. Under Missouri law, § 538.225, RSMo, a plaintiff in a healthcare liability case must file an affidavit confirming that a legally qualified healthcare provider has provided a written opinion that the defendant failed to use the required degree of care and caused the damage claimed in the petition. “The purpose of § 538.225 is to eliminate at the early stages of litigation the medical malpractice actions against health care providers which lack the color of merit and to protect the public against the costs of ungrounded medical malpractice claims.” Morrison v. St. Luke’s Health Corp., 929 S.W.2d 898, 901 (Mo. App. E.D. 1992) (citing, Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 510 (Mo. banc 1991)). As demonstrated in the case discussed below, courts take this affidavit requirement seriously and view misrepresentations in an affidavit to be serious misconduct.

In Janet Meier v. Mosaic Medical Center–Maryville, et al., Case No. 24ND-CC00112, a medical negligence/wrongful death case, the trial court found the plaintiff attorney failed to comply with the statute because several of his seven affidavits of merit were false when signed and filed in that the required written opinions had not been obtained at the time of filing. Defense counsel discovered the affidavit issues when deposing plaintiff’s experts. Defense counsel filed a motion for sanctions and to dismiss, under Camden v. Hamley, 306 S.W.3d 680 (Mo.App. S.D. 2010) (reversing dismissal as a sanction for a false affidavit of merit because it punished the party rather than the attorney and remanding with instructions to consider appropriate sanctions against the attorney and/or law firm).

The trial court found the four affidavits against the four nurse defendants were knowingly false because plaintiff’s counsel had not obtained a written opinion from the nurse expert when he signed and filed the affidavits. Even though he later obtained a written opinion, that did not change the fact that the affidavits were false at the time of filing. The trial court dismissed the claims against the four nurse defendants without prejudice as a statutory remedy. On the other hand, plaintiff’s counsel did in fact have a written opinion from his physician expert before filing related affidavits of merit. The trial court entered an order with a serious package of remedies that serves as a clear warning to practitioners and underscores exposure under Missouri Rule 55.03, which requires that factual contentions in filings have evidentiary support. The court order included the following sanctions:

Barred the plaintiff from adding parties
Authorized $75,000 in attorney’s fees as a sanction and staying the case until satisfied
Referred counsel to disciplinary authorities under Rule 4-3.3 (for false statements to tribunal)

The court docket reflects that, less than one month after the court awarded attorney’s fees, the parties reported “settlement of all issues.”

Practitioners should scrutinize affidavits early. Common red flags include:

Overly generic or formulaic language
Statements beyond the affiant’s expertise or role
Lack of foundation for key assertions
Missing or inconsistent supporting materials
Notarization irregularities
Unusual formatting or citation inconsistencies

When a false affidavit appears in litigation, counsel should respond both strategically and ethically. Not every instance is intentional misconduct—some could be mistakes—so a meet-and-confer is often an appropriate first step. Depending on the response, options may include:

Demanding withdrawal or correction
Filing a motion to strike
Seeking sanctions

Whether the issue is a false affidavit, a fabricated exhibit, or a fake case citation generated through careless use of artificial intelligence, the message from courts is increasingly clear: litigation filings must be real, accurate, and supportable. Lawyers who submit false filings face serious consequences. The Meier sanctions ruling is not an isolated event—it reflects a broader trend. Courts are increasingly intolerant of false filings, whether created by a dishonest lawyer, careless staff member, or unverified AI tool. Technology evolves. Ethical obligations do not. For practitioners—particularly those handling Missouri healthcare liability claims subject to § 538.225—this decision serves as a clear and timely warning: verify everything and assume the court will expect no less. Courts are far more forgiving of mistakes than of dishonesty.

U.S. Supreme Court Limits Application of Healthcare Affidavit of Merit Requirements in Federal Court

03 Feb 2026

ABSTRACT: In Berk v. Choy, the U.S. Supreme Court unanimously ruled that a state court healthcare affidavit of merit requirement is procedural and cannot be enforced in federal court when it conflicts with the Federal Rules of Civil Procedure. The decision impacts healthcare litigation strategy nationwide while re-affirming the legitimacy of early suit-screening policies.

On January 20, 2026, the United States Supreme Court issued a significant decision affecting healthcare litigation nationwide. In Berk v. Choy, the Court held Delaware’s statutory requirement that plaintiffs file an expert affidavit of merit does not apply in federal court because it conflicts with the Federal Rules of Civil Procedure. Though the decision restricted the use of a state affidavit statute in a federal case, the Court expressly recognized the legitimate policy concerns underlying those laws raised by healthcare providers and insurers.

Delaware’s affidavit of merit statute requires a plaintiff alleging medical negligence to file an affidavit with the petition from a qualified medical professional attesting that reasonable grounds exist to believe negligence occurred. Like Missouri’s affidavit of merit statute, the law was enacted in response to rising malpractice costs and was intended to serve as an early screening mechanism to weed out meritless claims.

Berk, who is from Florida, alleged the defendants negligently treated him for ankle fracture while on vacation in Delaware. Berk filed his medical malpractice action in federal court based on diversity jurisdiction. Though the cause of action arose under Delaware law, federal jurisdiction was proper under 28 U.S.C. § 1332.

Berk did not file the required affidavit of merit because, even after obtaining a statutory extension of time to file, he was unable to obtain expert support despite his efforts. Instead, Berk submitted copies of medical records under seal, prompting defendants to seek dismissal based on Delaware’s affidavit statute, and the District Court granted the motion. On appeal, the Third Circuit affirmed, holding the affidavit requirement applies in federal court.

Berk then appealed to the U.S. Supreme Court, arguing Delaware’s affidavit of merit statute could not be enforced in federal court because it conflicts with the Federal Rules of Civil Procedure, which require only a short and plain statement of the claim and do not permit dismissal based on the absence of expert evidence at the pleadings stage. The defendant healthcare providers argued this screening function is both necessary and sensible. They emphasized that affidavit requirements protect healthcare providers from being subjected to costly discovery and litigation based solely on conclusory allegations, particularly in technically complex medical cases where expert support is essential. Without an early expert review requirement, defendants are forced to incur substantial litigation expenses before a plaintiff is ever required to demonstrate the claim has medical support.

Despite acknowledging the purpose behind healthcare affidavit of merit statutes, the Supreme Court unanimously concluded Delaware’s affidavit law could not be enforced in federal court. The Court explained that when a state law claim is litigated in federal court, the Federal Rules of Civil Procedure govern procedural matters. Federal Rule of Civil Procedure 8 requires only a “short and plain statement” showing entitlement to relief and does not permit courts to demand evidentiary proof, such as an expert affidavit, at the pleadings stage. Because the Delaware statute imposed an additional requirement beyond what the Federal Rules require, the Court held it conflicted with valid federal rules and therefore could not be applied in federal court, even though the statute remains enforceable in state court.

Importantly, the Court did not question the wisdom or legitimacy of the policy goals behind affidavit statutes. Rather, it concluded only that those policy objectives cannot override the uniform procedural framework established by the Federal Rules.

Implications for Missouri Healthcare Claims

Missouri’s affidavit of merit statute, Section 538.225, RSMo, remains fully enforceable in Missouri state courts. Plaintiffs must still timely file an affidavit of merit, and failure to do so continues to provide grounds for dismissal under Missouri law. However, after Berk v. Choy, Missouri’s affidavit requirement cannot be applied in federal court if it conflicts with the Federal Rules of Civil Procedure. Plaintiffs pursuing Missouri healthcare claims in federal court therefore might not be subject to the affidavit of merit requirement. Instead, federal courts must evaluate pleadings under federal standards, with challenges to the merits occurring through motions to dismiss, expert disclosures, summary judgment, and Daubert proceedings.

The decision creates a clear procedural divide between state and federal healthcare litigation. While affidavit statutes remain a powerful tool for early claim screening in state court, the federal rules do not currently provide such a mechanism. As a result, jurisdictional strategy will continue to play an important role. When federal jurisdiction exists, early case evaluation, focused discovery planning, and aggressive expert practice become even more critical in addressing meritless claims at the earliest practicable stage.

The Supreme Court’s decision in Berk v. Choy clarifies that a state affidavit of merit requirement is procedural, not substantive, and cannot override the Federal Rules of Civil Procedure in federal court. Although Berk limits the use of a state statutory affidavit requirement in federal court, the Court’s discussion confirms that the underlying policy, screening unsupported malpractice claims before significant litigation costs are incurred, remains a valid and compelling objective, even if it must be pursued through other procedural means, and preserves their continued enforcement in state court proceedings. This decision could spark efforts for a federal rule change to create a healthcare affidavit of merit requirement mirroring that of numerous states.

Timing is Everything: Appellate Court Confirms Section 538.225 Unambiguously Allows No More than 90 Days to File Healthcare Affidavit of Merit, Absent Timely Extension for Good Cause.

29 Jul 2025

ABSTRACT: Missouri Court of Appeals confirms § 538.225 RSMo. is unambiguous in allowing 90 days—not 180 days—to file an affidavit of merit, absent a timely extension for good cause.

After years of varying application in circuit courts, the Court of Appeals for the Eastern District of Missouri confirmed that Section 538.225 of the Missouri Revised Statutes is clear and unambiguous: a plaintiff has a maximum of 90 days to file an affidavit of merit against a healthcare provider defendant, not an automatic extension up to 180 days. This definitive interpretation comes from the decision in Christopher Shreves v. Mercy-GoHealth Urgent Care, LLC, et al., No. ED113000, 2025 Mo. App. LEXIS 456 (App. E.D. June 24, 2025), published late last month.

Background

Purpose of Statute

The affidavit of merit requirement exists for any person bringing “any action against a health care provider for damages for personal injury on account of the rendering of or failure to render health care services.” The “affidavit” must confirm the plaintiff “obtained the written opinion of a legally qualified health care provider” stating “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 the reasonable care directly caused or directly contributed to cause the damages claimed.”[i]

The purpose of Section 538.225 is “to eliminate at the early stages of litigation” actions against health care providers which lack merit, and to protect the public against the costs of ungrounded claims against healthcare providers.[ii] This statute is mandatory and must be obeyed. The Supreme Court of Missouri has explained “the language of section 538.225 is unambiguous and mandatory, and there is no statute requiring that it be liberally construed.”[iii] Without a valid affidavit filed in support a claim against a healthcare provider, the claim “lacks even color of merit and is frivolous.”[iv]

Underlying Case

In Shreves, the plaintiff filed suit against healthcare provider defendants on March 26, 2024, and failed to file the required affidavits within 90 days, by June 24, 2024. The defendants filed motions to dismiss on July 3, 2024. On August 9, 2024 (135 days after filing suit), the plaintiff filed a motion for extension of time to file the affidavits, including an affidavit of merit as an attachment to the motion. On September 16, 2024, the trial court granted the defendants’ motions to dismiss and denied the plaintiff’s motion for extension of time, dismissing the case without prejudice. The Court of Appeals affirmed the trial court’s decision, explaining that a plaintiff must either file an appropriate affidavit of merit or timely request an extension of time for good cause, otherwise the court must dismiss the case, without prejudice.[v]

What This Means for the Defense

The Shreves case holds plaintiffs to strict compliance with the 90-day deadline to file an affidavit of merit or to request an extension of time. Because the defendants in Shreves filed a motion to dismiss pursuant § 538.225.6 after plaintiff failed to file an affidavit or move for an extension within the 90 days, the appellate court held the trial court was required to grant defendants’ motion. The court did not reach the issue regarding whether plaintiff showed “good cause” for an extension of time because plaintiff’s request was untimely.

Importantly, counsel should be mindful of the 90-day deadline, and defendants should move for dismissal promptly at the conclusion of the 90 days.

Looking Ahead

This Shreves decision also comes in the wake of the United States Supreme Court agreeing to hear a case, Berk v. Choy, that asks whether a state law affidavit of merit requirement is substantive or procedural, and whether a federal court must enforce it. We will continue to monitor the outcome of that case.[vi]

[i] § 538.225, RSMo. (2005).

[ii] Morrison v. St. Luke’s Health Corp., 929 S.W.2d 898, 901 (Mo. App. E.D. 1992) (citing, Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 510 (Mo. banc 1991)).

[iii] Austin v. Schiro, 466 S.W.3d 694, 697 (Mo. App. W.D. 2015) (quoting Mayes v. St. Luke's Hosp. of Kansas City, 430 S.W.3d 260, 271 (Mo. banc 2014)).

[iv] Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503, 507-508 (Mo. banc 1991).

[v] See Christopher Shreves v. Mercy-GoHealth Urgent Care, LLC, et al., No. ED113000, 2025 Mo. App. LEXIS 456 (App. E.D. June 24, 2025), at *3-6.

[vi] Berk v. Choy, 145 S. Ct. 1328, 221 L.Ed.2d 416 (2025); Berk v. Choy, No. 23-1620, 2024 U.S. App. LEXIS 18336 (3d Cir. July 25, 2024).

Court's Opinion Highlights Importance of Limiting Punitive Damages Instructions in Medical Negligence Cases

15 Oct 2024

ABSTRACT: The Court of Appeals for the Southern District of Missouri reversed a $500,000 punitive damage award in a medical negligence case involving the prescription of opioid medication. Ultimately, the appellate court held that the alleged conduct did not reach the extraordinarily high bar for the submission of punitive damages.

In Frost v. PCRMC Medical Group, Inc., the Court of Appeals for the Southern District of Missouri reviewed six points on appeal, two of which discussed the punitive damage instruction and award. In the underlying case, plaintiff Gregory Frost claimed that the negligence of his treating physicians at defendant PCRMC Medical Group caused him to become addicted to opioids.

Following a motorcycle accident in 2002, Frost developed chronic pain syndrome from his injuries. Frost treated his pain with a low dose opioid medication for about eight to nine years, before seeing any PCRMC Medical Group physician.

From 2011 until 2015, PCRMC Medical Group physician, Dr. Lebedowicz, treated Frost for his chronic pain as his primary care physician. During this time, Dr. Lebedowicz prescribed a pain regimen with daily opioid dosages increasing from 30 to 300 MME per day.[1]

Throughout this treatment, Frost informed Dr. Lebedowicz that he sometimes cut his prescribed fentanyl patches in half, used marijuana to help with his pain, used heroin and cocaine in the past, and tried to stop using the patches but failed. Dr. Lebedowicz advised Frost not to cut his prescribed patches. Dr. Lebedowicz also referred Frost to a pain specialist, neurosurgeon, sports medicine specialist, and orthopedist, but Frost only visited the pain specialist. While Dr. Lebedowicz also intended to refer Frost to a psychiatrist, this referral never occurred before Frost transferred to a different physician.

In 2015, PCRMC Medical Group physician, Dr. James, took over Frost’s primary care. During this treatment, Frost informed Dr. James that he had stopped using marijuana. Across four appointments in 2015-2016, Dr. James continued the same opioid pain regimen of 300 MME per day.

Following Dr. James, PCRMC Medical Group physician Dr. Vail treated Frost from 2016 until 2018. The same pain regimen continued until 2017, when Frost expressed to Dr. Vail that he wanted to stop taking fentanyl. To aid in this endeavor, Dr. Vail lowered Frost’s fentanyl dosage by fifty percent while maintaining the dosage of oxycodone. However, three months later Frost reported his medication did not control his pain. Dr. Vail reordered the fentanyl patches, which brought the opioid dosage to 250 MME per day.

In June 2018, Dr. Vail informed Frost that the opioid regimen was not a long-term solution to treat his pain. Frost disclosed that he had been obtaining unprescribed pain medication and cutting his fentanyl patches in half. Additionally, Frost explained that the surgery referral determined he was not a candidate for surgery to relieve his pain. Dr. Vail cautioned Frost not to use nonprescribed narcotics, referred him to physical therapy and pain management, and continued the opioid regimen.

In the following days, Frost called Dr. Vail’s office several times, “ranting and crying” that “the government [was] going to take his medications away from him.” Believing Frost was having a psychiatric crisis, Dr. Vail contacted a psychiatrist and requested the police conduct a wellness check. In the following visit, Dr. Vail diagnosed Frost with a narcotic addiction and provided pain management and psychiatric referrals.

After this incident, Dr. Vail required monthly check-ins and visits with the pain management and psychiatry referrals to refill any opioid prescriptions. Frost refused steroid injections recommended by the pain management specialist and instead requested Lyrica, a drug he had obtained without a prescription in the past. Frost also admitted he still used marijuana for pain. In November 2018, Dr. Vail gave Frost a termination notice.

At trial, the circuit court submitted both a negligence and punitive damages verdict director to the jury. The jury awarded $200,000 in compensatory damages and found that Frost was 90% at fault, while PCRMC Medical Group was 10% at fault. Additionally, the jury found PCRMC Medical Group liable for $500,000 in punitive damages. Along with other points raised on appeal, PCRMC Medical Group argued that it was error for the trial court to submit the verdict director for punitive damages because it was unsupported by clear and convincing evidence.

In Missouri, punitive damages are intended to punish and should be used only sparingly. Since 1986, Chapter 538 of the Missouri Revised Statutes has included a definition for punitive damages as those “intended to punish or deter willful, wanton or malicious misconduct.” § 538.205(11) (1986). Consistent with this definition, the Legislature intended that punitive damages may be awarded against a health care provider only “upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct . . . . § 538.210.8 (1986). Courts have interpreted this standard as being the same as “acting with a complete indifference to or in conscious disregard for the rights or safety of others.” Generally, punitive damages are not recoverable for negligent conduct, unless the “defendant knew or had reason to know that there was a high degree of probability that the action would result in injury.” Additionally, there must be clear and convincing proof of this conduct for the court to submit a punitive damages verdict director.[2]

Ultimately, the Court of Appeals found that the alleged conduct by PCRMC Medical Group physicians did not support a punitive damages verdict director or award and reversed the punitive damage award.

The Court distinguished Frost’s care with that of a past opioid case, Koon v. Walden. In the Koon case,the court found punitive damages were appropriate for the reckless prescription of opioids. There, the total prescribed daily dosage was 1,555.94 MME, which far exceeded the pain regimen of 300 MME prescribed to Frost.

The appellate court agreed that Dr. Lebedowicz knew or should have known that Frost exhibited certain risk factors for opioid addiction, such as failing to meet with a pain management specialist and past usage of unprescribed narcotics. However, these were merely risk factors, not clear indicators that a failure to act would naturally and probably cause injury to Frost. Later in Frost’s treatment, Dr. Lebedowicz addressed other concerning conduct by instructing Frost not to cut his fentanyl patches. The court noted that this intervention by Dr. Lebedowicz illustrated a lack of complete indifference to Frost’s safety.

During the time Frost showed signs of addiction, Dr. Lebedowicz referred him to a neurosurgeon, sports medicine specialist, orthopedist, and pain management specialist while continuing his opioid regimen. The court found that even if Dr. Lebedowicz should have started tapering off Frost’s opioid prescription when Frost showed signs of addiction instead of waiting until a viable non-opioid pain management solution was in place, this decision, while possibly incorrect or negligent, did not suggest a complete indifference or conscious disregard for Frost.

Finally, the court determined that Dr. Lebedowicz’s failure to refer Frost to a psychiatrist when his treatment was transferred to Dr. James, while possibly negligent as Dr. Lebedowicz testified he intended to make this referral, certainly was not “something tantamount to intentional wrongdoing.”

Like Dr. Lebedowicz, Dr. James did not show complete indifference to the safety of Frost. Despite risk factors for addiction previously shown by Frost, Dr. James only knew or had reason to know of Frost’s past use of marijuana at the start of treatment. However, Frost told Dr. James he had quit, and did not exhibit any other concerning behavior during treatment.

Similarly, Dr. Vail did not show a complete indifference to the safety of Frost during his treatment. In response to Frost’s concerning behavior, Dr. Vail diagnosed Frost with a narcotic addiction, made appropriate referrals, and required monthly check-ins for opioid refills.

In addition to the alleged negligence by individual physicians, Frost argued that PCRMC Medical Group as an organization demonstrated a complete indifference to the safety of patients who were prescribed opioids because it did not have policies or procedures concerning chronic opioid use. In Koon, the medical entity knew about the opioid crisis yet saw no basis to supervise opioids differently from other medications, suggesting that the entity was simply unwilling to implement a new policy. Here, however, PCRMC Medical Group noted the impracticality and impossibility of an opioid prescription policy because of the group’s multispecialty nature, which failed to show the complete indifference illustrated in Koon.

Noting that punitive damages is a harsh remedy, the Court of Appeals found that the alleged actions or inactions by PCRMC Medical Group and its physicians were not enough to warrant punitive damages. Further, because the punitive damages verdict director was improper, the Court of Appeals reversed the $500,000 punitive damage award.

The court’s opinion is consistent with the legislative and judicial trend to limit when punitive damages instructions may be given to a jury. The court found the physicians faced imperfect options regarding alleged “red flags” and exercised clinical decision-making. Exercising judgment, good or bad, is antithetical to the standard of complete indifference to the safety of patients required for submission of a punitive damages claim. One thing the court did not appear to consider is whether the improper submission of a claim for punitive damages tainted the jury such that it believed compensatory damages were a foregone conclusion and that its only real decision was whether to also award aggravating circumstances damages. This shows how important it is for trial courts to utilize the appropriate standard for submissibility of punitive damages claims and the potential impact that error in allowing a jury to consider such a claim can have on the entire case from a defense perspective.

* Manni Jandernoa Watson, Associate, assisted in the research and drafting of this post. Jandernoa Watson is a graduate of Saint Louis University School of Law and passed the July 2024 Missouri Bar Exam.

[1] Because there is a range of opioid medications, each with varying properties and potencies, a uniform way to measure a dosage of any particular opioid is to compare its potency to milligrams of morphine, otherwise referred to as morphine milligram equivalents (“MME”).

[2] This case was decided based on pre-2020 Missouri law. In 2020, the Legislature clarified and heightened the standard for punitive damages, which requires that a jury find “the evidence clearly and convincingly demonstrated that the health care provider intentionally caused damage to the plaintiff or demonstrated malicious misconduct that caused damage to the plaintiff.” § 538.210.8, RSMo. (2020). Further, “Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct.” Id. This change reflects a return to the original common-law standard of intentional misconduct and is an effort to clarify for the courts the proper standard and prohibit the use of lesser standards.

Missouri Court of Appeals Affirms Jury Verdict for Plaintiff Despite Concerns Regarding Expert Opinions

03 Oct 2024

ABSTRACT: The Missouri Court of Appeals, Eastern District, affirmed a trial court's judgment of $5 Million in compensatory damages in favor of Debbie Pyzyk in a medical malpractice case stemming from the death of her daughter, K.P. Though the court agreed with defendants' argument that plaintiff's expert’s cause of death opinion was unreliable and should not have been admitted, the court held the error did not materially affect the outcome, as other substantial evidence at trial supported the opinion and verdict. The defense also raised instructional issues and an argument the trial court should not have allowed the plaintiff to submit a claim for aggravating circumstances damages, which the jury ultimately declined to award.

Dr. Gordon Robinson is a psychiatrist who began treating K.P. on June 25, 2013 and continued treating her until her March 16, 2016 death. K.P. was admitted to Harris House Treatment and Recovery Center for inpatient treatment for alcohol dependence and Adderall abuse. K.P. suffered from various health conditions, including alcohol dependence, ADHD, amphetamine abuse, generalized anxiety disorder, bulimia nervosa, and anorexia nervosa. While treating K.P. at Harris House, Dr. Robinson prescribed her Vyvanse, an amphetamine. K.P was abusing the Vyvanse and taking more than the prescribed amount. One evening, K.P. and her mother got into an argument about paying for a Vyvanse prescription. About fifteen minutes after the argument ended, K.P. was found unresponsive in her bedroom. She was taken to the hospital and declared brain dead a few days later. The St. Louis County Medical Examiner’s Office determined K.P.’s cause of death was an “intraventricular hemorrhage secondary to acute Lisdexamfetamine toxicity” (the generic name for Vyvanse), which was also identified on the death certificate. K.P.'s mother filed a wrongful death lawsuit alleging that Dr. Robinson’s negligence caused K.P.’s death. At the conclusion of the trial, the jury found in favor of plaintiff and awarded $5 Million in compensatory damages, which the trial court reduced to $801,061 pursuant to the medical malpractice liability limitations in Section 538.210. The jury declined to award aggravating circumstances damages.

Defendants Gateway Psychiatric Group and Dr. Gordon Robinson raised four separate issues on appeal: (1) that the trial court improperly included conflicting theories of negligence in the verdict directing instruction; (2) the expert testimony about K.P.'s cause of death did not comply with legal standards; (3) the death certificate was admitted into evidence without proper foundation; and (4) aggravating circumstances damages were incorrectly allowed as there was no evidence of intentional wrongdoing.

Appellants argued that the trial court erred by including both the ultimate fact and additional evidentiary details in the jury verdict director. They argued that the sole ultimate fact for the jury's consideration should have been whether Dr. Robinson unreasonably prescribed Vyvanse to K.P., while the remaining four disjunctive theories of negligence—prescribing Vyvanse above the recommended dose, failing to weigh risks, not monitoring for side effects, and not discontinuing the medication—were improper evidentiary details. Plaintiff argued that these additional disjunctives represented different theories of negligence, not just evidentiary details, all of which were separate ultimate facts for the jury to consider. The court noted Appellants failed to object to the submission of the verdict director instruction at the instruction conference and instead only proposed an alternative instruction, which was denied. Because they failed to object to the submission, Appellants failed to preserve any claim of error. Nevertheless, the court exercised its discretion to conduct a plain error review and determined that all five disjunctives were proper ultimate facts and denied the Appellants' claim of error, concluding that no manifest injustice occurred.

On their second point on appeal, Appellants argued plaintiff’s expert’s cause of death opinion lacked sufficient factual support, was unreliable, and should not have been admitted. They claimed the expert failed to consider all relevant facts and did not provide physical evidence linking Vyvanse to K.P.’s death. The court cited an "obvious problem" with the expert’s opinion, in that there was no evidence presented of the physical effects of Vyvanse on K.P.’s cardiovascular system, the expert failed to identify all the scientifically plausible causes of death, and the expert ignored uncontested evidence of K.P.’s various comorbid conditions. However, the court found the opinion was supported by substantial other evidence, to which defendants failed to object, including the death certificate, medical examiner’s report, medical records, family testimony, medical literature, and warnings from Vyvanse’s FDA packaging materials. The court concluded that even if the expert’s differential diagnosis methodology was deficient and his opinion unreliable, the overall evidence was sufficient to uphold the judgment, as the error did not materially affect the outcome. Thus, the court denied Appellants' challenge to the expert’s cause of death opinion testimony.

On defendants' third point on appeal, the court found that the trial court acted within its discretion by admitting K.P.'s death certificate into evidence, as it is considered prima facie evidence of the facts it states, including the cause of death. Additionally, the long-form investigative report from the St. Louis County Medical Examiner’s Office, which included the death certificate's information and more details, was also admitted without objection. Since the death certificate’s information was cumulative of other evidence that was admitted without objection, Appellants could not demonstrate that its admission caused them any prejudice.

As mentioned above, the jury awarded plaintiff $5 Million in compensatory damages but chose not to award any damages for aggravating circumstances. In their fourth point on appeal, Appellants argued that the consideration of aggravating circumstances might have tainted the jury’s decision on the amount of compensatory damages awarded. The court did not reject the argument outright, or indicate that the improper submission of a claim for aggravating circumstances damages could not constitute reversible error in a case such as this where the jury awarded only compensatory damages. However, the court found the argument lacked specific factual or legal support and was therefore speculative and noted that the trial court reduced the compensatory damages to $801,061 due to the medical malpractice liability limitations in Section 538.210. Considering the lack of concrete evidence of prejudice, the court found the issue of aggravating circumstances damages moot. The defense does not appear to have cited specific evidence and argument in the record submitted in support of the aggravating circumstances claim or argued that the improper admission of this claim tainted the jury such that it believed compensatory damages were a foregone conclusion and that its only real decision was whether to also award aggravating circumstances damages. This appears to have been information the court was looking for to fully analyze the issue but failed to find any in the record on appeal.

This opinion highlights the trial court's broad discretion regarding the admission of expert opinions at trial. It also further underscores the importance of proper objections during trial to preserve claims of error for appeal. Though the court ultimately considered the issue moot, this case also shows how important it is for trial courts to utilize the appropriate standard for submissiblity of aggravating circumstances damages claims and the potential impact that error in allowing a jury to consider such a claim can have on the entire case from a defense perspective.

Healthcare Entities Beware: Cyberattack vulnerability leads to HIPAA liability risk

22 Feb 2024

ABSTRACT: With an increase in recent HHS enforcement and accountability for the healthcare sector, understanding cybersecurity vulnerabilities, cyberattack risks, and data breach of sensitive and confidential information is vital to prevent liability and promote best practices for risk management.

In light of the recent U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) settlements with healthcare organizations pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) last year, it is worth analyzing key potential liability concerns for healthcare clients, specifically as they relate to cyberattacks on sensitive protected health information (PHI).

HHS Resources for HIPAA Cybersecurity Compliance

The OCR has published multiple resources for covered healthcare entities to protect themselves and patients from cyber-attacks. The HHS website includes newsletters advising on HIPAA Rule compliance for defending against common cyberattacks, development of sufficient policies, and other helpful guidance. Importantly, HHS released a Concept Paper in early December 2023 outlining its healthcare sector cybersecurity strategy—a key signal of HHS’ intent to enforce cybersecurity compliance more aggressively.

HHS’ recent focus on healthcare sector cybersecurity is undoubtedly linked to the Biden Administration’s National Cybersecurity Strategy released March 1, 2023, which detailed the federal approach to improving national cyber-defense and solidifying digital infrastructure in the United States’ inevitably digital future. Essentially all key industries are undergoing a digital transformation through AI-launches and ever-advancing technology in delivery of service to consumers.

Through its recently released Concept Paper, HHS details its plan to improve cybersecurity with concurrent steps of: establishing voluntary performance goals; providing incentive resources; and—most relevant—increasing enforcement and accountability for the healthcare sector.

Recent OCR Settlements

In October 2023, OCR and a medical management company (DMS) entered into a Ransomware Settlement after DMS’ network server was infected with ransomware from April 2017, going undetected by DMS until December 2018 when the ransomware encrypted files containing PHI. More than 200,000 individuals’ electronic PHI (ePHI) was affected by this data breach. DMS paid OCR $100,000 and entered into a resolution agreement after the OCR investigation found DMS failed to: conduct sufficient risk analysis; implement proper audit procedures to track PHI-including system activity; and create and enforce acceptable policies and procedures to comply with HIPAA rules. The resolution agreement required DMS to: review and update risk analyses for vulnerabilities in DMS PHI-related data; update its risk management plan to mitigate any security risks and vulnerabilities; revise written policies and procedures to better comply with HIPAA rules; and provide HIPAA training to all staff who have access to PHI.

In December 2023, OCR and a medical group specializing in emergency and occupational practice and laboratory testing (LMG) entered into a Phishing Settlement after LMG was victim to a phishing attack where an unauthorized hacker obtained access to an LMG owner’s email account. LMG was unable to definitively identify which patients’ PHI was affected, thus leading to notification of all patients—nearly 35,000. OCR investigation determined LMG failed to: conduct the requisite HIPAA risk analysis and implement policies and procedures to safeguard PHI through regular system activity review. LMG agreed to pay OCR $480,000 and enter a corrective action plan through resolution agreement, including OCR-monitoring for two years. The action plan requires LMG to: establish and implement a detailed risk management plan to reduce security vulnerability to ePHI (including conducting annual risk analyses); and develop and enforce written policies and procedures in compliance with HIPAA, including regular review of all records of information system activity and processes for evaluating when collection of new or different records must be updated.

Healthcare Cybersecurity and other Legal Risks of Data Breach

In addition to HHS penalties, data breach can also have other severe consequences on healthcare entities, including reputational damages, broken trust, monetary loss, and legal liability. Data breach frequency continues to rise, with healthcare hit most often.

Focusing on fundamentals of cybersecurity is crucial, such as basic protections and best practices for reinforcement. To strengthen healthcare data security, entities should encrypt sensitive data throughout the chain of custody; implement strict retention and destruction policies; minimize storing PHI on servers; establish comprehensive risk management policies; and investigate security practices of relevant third-party vendors or partners. Implementing best practices should include standards for monitoring and access control of all individuals handling PHI; two-factor authentication credentials; automatic time-outs; password strength criteria and regular update requirements; and routine training on phishing, ransomware, and cybersecurity generally.

Despite an organization’s best efforts, though, data breaches compromising PHI can still occur. When that happens, strict compliance with notification rules is necessary. Under HIPAA, covered entities and their business associates must report a breach within 60 days of discovery. If more than 500 individuals are affected, HHS, the media, and the affected individuals must also be notified.

Notably, it is not just the covered entities who can be held accountable under HIPAA. Even individuals such as directors, employees, or officers of a covered entity can also be held directly and criminally liable for HIPAA violations, including both fines and possible jail time. Though a patient cannot sue on the sole grounds of a HIPAA violation, patients can generally pursue damages through state privacy laws overlapping with HIPAA.

Cyber Liability Coverage

Many professional liability insurers offer cyber liability coverage which may provide comprehensive protection for high-risk sensitive information (SSN, DOB, PHI, billing records, etc.) Some insurers also provide resources to help prevent breaches and expert guidance in necessary steps if a breach occurs.

Law Firms Beware – “Business Associates” by Definition

Law firms who counsel healthcare clients must remain vigilant in their responsibility to protect PHI. HIPAA defines such firms as “business associates” who may also be directly liable under HIPAA Rules, meaning not only the client, but also the firm, could be subject to civil, and in some cases, criminal penalties for a data breach. See 45 CFR 160.103.

Illinois Supreme Court Determines Termination on Death Clause Voids Long-Term Care Arbitration Agreement

15 Nov 2023

ABSTRACT: Illinois Supreme Court resolves appellate court dispute by ruling a resident’s death can terminate entire arbitration clause due to the termination-on-death clause -- even actions that survive through the Illinois Survival Act.

Long Term Facilities in Illinois should review their arbitration agreements if they want personal injury claims to be resolved through arbitration. The Illinois Supreme Court has determined that an overly broad termination-on-death clause can prevent all claims, including those that survive a decedent’s death, from being decided in arbitration. Clanton v. Oakbrook Healthcare Centre, Ltd., 2023 IL 129067.

Case Facts

In Clanton, plaintiff, Nancy Clanton, as the independent administrator of the Estate of the Decedent, Laurel Jansen, brought a claim of negligence-wrongful death against multiple defendants associated with care provided in a long-term care facility. Defendants filed a motion to compel arbitration, which would have stayed the civil suit and sent the entire case to arbitration. The trial court denied defendants’ motion to compel arbitration, and the Illinois Supreme Court affirmed this decision.

It was undisputed that Jansen, acting through her power of attorney, signed a contract with the long-term care facility. That contract forced arbitration to resolve any civil claim arising out of the services provided by the facility. The contract also included a termination clause, which noted the contract is terminated, “[i]mmediately upon the resident’s death.”

According to plaintiff’s complaint, Jansen suffered falls while a resident at Oak Brook, which led to her death. Plaintiff alleged four counts of negligence against the facility, (1) a violation of the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2018), (2) a common-law negligence claim, (3) a wrongful death claim, and (4) a res ipsa loquitur claim. All these claims, aside from the wrongful death claim, were brought through the Survival Act (755 ILCS 5/27-6 (West 2018)), while the wrongful death claim was brought through the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2018)). The Survival Act allows a representative of the decedent to maintain any statutory or common law actions that accrued before decedent’s death. Wrongful death actions do not accrue until the death of an individual.

Oak Brook, along with the other defendants, filed a motion to compel arbitration of all claims brought through the Survival Act and to stay the wrongful death claim. In response, plaintiff argued defendants, including Oak Brook, waived their right to arbitrate by litigating for nearly a year, that the arbitration clause was procedurally and substantively unconscionable, and that the POA lacked the authority to execute an arbitration clause on decedent’s behalf. The trial court concluded that the defendants did not waive their right to arbitrate, nor was the contract procedurally unconscionable, as the POA could sign the arbitration agreement. However, the trial court concluded that the contract was substantively unconscionable because it waived plaintiff’s entitlement to punitive or treble damages. The trial court declined to sever the limitation on damages from the rest of the contract and determined that the entire dispute resolution provision was unconscionable.

Defendants appealed this decision, arguing that the trial court erred in its decision, and alternatively argued it erred in not severing that portion it found unconscionable. In response, plaintiff reasserted its arguments from the trial court but added the argument that the arbitration clause terminated upon decedent’s death.

Appellate Review

The First District agreed that the defendants did not waive their right to arbitrate but also ruled it was not precluded from reviewing the new issue raised by the parties – Whether the arbitration clause terminated upon decedent’s death. Taking the plain language of the contract, the Appellate Court determined the contract, therefore the arbitration provision, terminated upon decedent’s death.

Defendants relied on the Fourth District opinion in Mason v. St. Vincent’s Home, Inc., 2022 IL App (4^th) 210458, 459 Ill. Dec. 893. In Mason, the arbitration clause was similar, and the court concluded the arbitration clause was valid because the Survival Act Claims accrued before the decedent’s death, so the arbitration provision was still valid when the cause of action accrued.

The First District rejected the Mason analysis, citing the plain language of the contract, which stated it terminated upon the resident’s death. There was no exception which stated the Survival Act claims survived the resident’s death.

The Illinois Supreme Court decided to take this issue up for appellate review, as the Fourth and First District Opinions were in conflict. At the Illinois Supreme Court, the plaintiff argued the Mason court was incorrect because it added an exception not contained in the termination-on-death clause. Further, the plaintiff argued that if defendants had intended the arbitration clause to survive the resident’s death, the burden was on them to explicitly state that exception in the resident’s contract.

Defendants argued the arbitration agreement provision was not terminated on death, as the contract specifically provided that “all civil claims arising in any way out of this Agreement,” made it clear the arbitration agreement survived decedent’s death. Defendants argued their obligation to provide personal services to decedent was terminated upon death, but the dispute resolution provision remained. This interpretation was necessary to “harmonize” the entire contract so that the arbitration clause was not in conflict with or neutralized by the termination-on-death clause.

The Illinois Supreme Court found the contract was unambiguous, as the plain language of the contract compelled arbitration, but only up until the resident’s death. Upon death, the entire contract ceased to exist. The Illinois Supreme Court determined Defendants could have drafted the contract differently, by allowing specific portions to remain in effect after the resident’s death, including the arbitration clause.

Conclusion

All long-term care facilities should review their arbitration agreements. Termination on death clauses should be narrowly tailored to exclude arbitration clauses or any claim that would survive through the Illinois Survival Act. If a resident’s contract includes such a clause, and no exception exists, then a resident’s death could void the entire contract, including the arbitration agreement based on Clanton.

Missouri Appellate Court Holds Affidavit of Merit Requirement Inapplicable to Privacy Breach Claim Against Hospital

26 Oct 2023

ABSTRACT: In September 2023, the Missouri Court of Appeals, Eastern District, reversed a trial court’s judgment granting Poplar Bluff Regional Medical Center’s (PBRMC) motion to dismiss for plaintiff’s failure to file an “affidavit of merit,” as prescribed by RSMo. § 538.225. The statute provides that in a personal injury or wrongful death action, the plaintiff must certify in an affidavit that he or she has obtained the written opinion of a legally qualified health care provider that the defendant failed to exercise reasonable care, and that this caused or contributed to the alleged injury.

J.J. v. Poplar Bluff Regional Medical Center, LLC was a suit brought by a minor psychiatric patient alleging the hospital breached its fiduciary duty of confidentiality and violated HIPAA, the Health Information Technology Act (HITECH), and the Missouri Merchandising Practices Act when a PBRMC employee, who was uninvolved in the plaintiff’s medical treatment, accessed his mental health records and disclosed his protected health information to the employee’s daughter. The daughter, a school classmate of the plaintiff, then is alleged to have disclosed this information to other students in the school. Plaintiff claims this was an invasion of privacy that led to his being harassed and bullied at school.

The trial court granted PBRMC’s motion to dismiss under RSMo. § 538.225.1 on the grounds that the plaintiff failed to file the statutorily required affidavit of merit applicable to suits against health care providers arising out of the provision of health care services. Plaintiff appealed, successfully arguing that Section 538.225’s affidavit requirement did not apply to his claim.

On appeal, the court applied a two-part test to determine whether an affidavit of merit was required: (1) whether the relationship between the parties is that of a health care provider and recipient; and (2) whether the claims relate solely to the provision of health care services. The court acknowledged the first part was easily met in that the plaintiff received healthcare services at PBRMC. However, the second part was more difficult and dispositive. The court reviewed RSMo. § 538.205.7 and determined “health care services” necessarily involve a question of professional judgment, and the affidavit of merit requirement only applies to claims of alleged injury from the rendering of or failure to render health care services involving professional judgment. However, that does not mean this requirement is limited solely to medical negligence claims – it applies to various other types of claims against healthcare providers, such as claims for surgical battery, lack of informed consent, libel, and others.

Turning to the facts of the case, the court noted that other Missouri courts had determined a health care provider’s duty to keep medical records confidential is not a “health care service” under Section 538.225 because it is an administrative duty incidental to medical treatment and does not necessarily involve a question of professional judgment that complies with a reasonable standard of care. Therefore, because the plaintiff’s claims stemmed solely from an alleged breach of confidentiality, and did not involve a question or professional judgment, the court held an affidavit of merit was not required and the trial court erred in dismissing the case. The appellate holding is limited to the plaintiff’s recitation of the facts specific to this case, which the court accepted as true, that the alleged privacy breach did not involve a question of professional judgment and was more akin to “an act of gossip” by a PBRMC employee who was uninvolved in the plaintiff’s care.

The holding in J.J. distinguishes certain medical privacy claims from medical negligence and other personal injury claims against health care providers that involve a question of professional judgment. The latter requires the filing of an affidavit of merit to verify that the claim involves services requiring professional judgment that fell below the standard of reasonable care. A medical privacy claim, however, may not require an affidavit of merit if the claim is unrelated to medical treatment and does not involve a question of professional judgment. However, healthcare privacy is a highly regulated and specialized space that constantly evolves as technology evolves. The court did not address whether a privacy breach claim could involve questions of healthcare privacy policy, procedure, and process developed and implemented by health care providers using professional judgment and whether that should trigger the affidavit of merit requirement. J.J. does not appear to establish a bright line rule, and the answer to this question in future cases will likely depend on the specific facts of each individual case.

Eighth Circuit Court of Appeals Allows COVID-19 Case to Proceed in Missouri State Court

22 Sep 2023

ABSTRACT: The Eighth Circuit Court of Appeals ruled that Defendant’s removal to federal court based on (1) diversity; (2) preemption; (3) and U.S.C. § 1442(a)(1) were improper and thus, a COVID-19 nursing home wrongful death suit can proceed in Missouri state court.

In June 2020, the plaintiff, the son of a nursing home resident who contracted and died from COVID-19, brought suit in Missouri state court against the nursing home, its corporate owners, and twelve individual defendants. Plaintiff asserted Missouri causes of action for wrongful death, negligence per se, and lost chance of survival. While none of the corporate defendants were Missouri citizens, most of the individual defendants were. Thus, after the corporate defendants were served – but prior to service on the individual defendants – the corporate defendants attempted to remove the case to federal court. The district court concluded that it lacked subject matter jurisdiction, remanded the case to state court, and the corporate defendants appealed.

On appeal, the corporate entities asserted three independent grounds for federal jurisdiction: (1) diversity jurisdiction existed because none of the “properly joined and served” defendants were Missouri citizens at the time of the attempted removal; (2) federal question jurisdiction because the plaintiff’s claims were preempted by a federal statute, the Public Readiness and Emergency Preparedness Act (PREP) Act; and (3) the increased federal regulation of nursing homes during the COVID-19 pandemic effectively federalized the corporate defendants and availed them of the federal officer statute set forth in 28 U.S.C § 1442(a)(1).

On the first issue – diversity jurisdiction – the Eighth Circuit rejected the corporate defendants’ attempt at “snap removal” because it was undisputed that the plaintiff and some of the named individual defendants were all Missouri citizens. The Court noted the attempt at snap removal – filing for removal before all parties are served – did not cure the underlying lack of complete diversity among the named parties. Without complete diversity, the suit could not have been brought in a federal district court and the case could not be removed based on diversity of citizenship.

Defendants’ second argument – federal question jurisdiction – was similarly rejected by the Eighth Circuit. It concluded the PREP Act did not completely preempt state causes of action for negligence. The Court also addressed the defendants’ alternative argument - even if Plaintiff’s claims were not “completely preempted” by the PREP Act, the claims still “necessarily raise[d]” a federal question. The Court rejected this argument as well, noting the defendants failed to identify a federal issue that was a necessary element of the plaintiff’s state law claims and, thus, the mere assertion of PREP Act immunity did not create federal jurisdiction.

On the last issue – federal officer removal – the Court acknowledged corporate entities like the defendants played an important role during the COVID-19 pandemic, but ruled, “the federal government’s designation of a private industry as important – or even critical – was not sufficient to federalize that industry’s operations and confer federal jurisdiction.”

With its ruling, the Eighth Circuit joined a majority of other circuits that have considered the issue of the protections of the PREP Act and determined it either did not apply to a defendants’ alleged conduct or that the Act does not completely preempt state law claims because it fails to provide an exclusive federal cause of action to enable federal courts to adjudicate plaintiffs’ claims on the merits.

* Sara Rakowiecki, Law Clerk, assisted in the research and drafting of this post. Rakowiecki is a Law Clerk pending being sworn into the Missouri Bar on September 29.

Missouri Court of Appeals Holds a Healthcare Provider Has No Legal Duty to Protect a Patient's Child from Unforeseen Criminal Abuse by a Third Party

10 Aug 2023

ABSTRACT: The Missouri Court of Appeals, Eastern District, affirmed a defense verdict in a suit in which the plaintiff alleged a hospital negligently caused an infant to suffer shaken baby syndrome by failing to alert authorities about potential child abuse by the patient/mother’s then-boyfriend. The court held that a converse jury instruction instructing that the jury should find for the hospital if it believed the boyfriend injured the infant, along with evidence of the boyfriend’s fault, was not improper because the hospital owed no legal duty to protect the infant from the unforeseen act of a third party outside the patient-provider relationship.

In June 2023, the Missouri Court of Appeals, Eastern District, affirmed a defense verdict for Poplar Bluff Regional Medical Center in Hollis v. Poplar Bluff Regional Medical Center, LLC, a suit brought by an infant (through the mother as next friend) alleging the hospital negligently failed to alert authorities about the patient/mother’s potential for committing child abuse and thereby caused the child to suffer shaken baby syndrome. The mother had been a voluntary patient in the hospital’s psychiatric ward over five days, about four months before the child abuse occurred. After the child was injured, the mother pleaded guilty to child abuse. The plaintiff alleged the hospital negligently failed to report the mother’s risk for committing child abuse or neglect when the mother was a patient. However, at trial, the trial court permitted the hospital to introduce evidence that the mother’s boyfriend at the time, rather than the mother herself, was the one who abused the child and caused his injuries. The trial court also allowed the hospital’s converse jury instruction that the verdict must be for the hospital if the jury believed the boyfriend injured the infant. The jury found the hospital not liable for the infant’s injuries. On appeal, the plaintiff made several arguments, but we will focus on the claims of trial court error surrounding the hospital’s converse jury instruction admission of the hospital’s evidence that the boyfriend caused the infant’s injuries.

Missouri recognizes a general common law rule that there is no legal duty to protect someone from a third party's criminal act. The reason that courts do not generally impose such a duty is because criminal acts are rarely foreseeable. The touchstone for the creation of a legal duty is foreseeability – if a healthcare provider were held liable for failing to warn of any potential harm that a third party might cause to another third party, there would be almost no limit to the potential legal liability. In Missouri, as in other states, there is, however, an exception to this general rule. Nearly 30 years ago, in Bradley v. Ray, 904 S.W.2d 303, 311 (Mo. App. W.D. 1995), the Court of Appeals held that liability for a failure to warn may be imposed only where there is a "special relationship" between a healthcare provider and a patient who is the foreseeable perpetrator of harm against a readily identifiable victim.

In reaching its holding, the Bradley court discussed Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425 (Cal. 1976). the seminal case imposing a legal duty on a healthcare provider to warn an impending victim of foreseeable violence at the hand of a patient. In that case, a patient informed a university psychologist that he intended to kill Tatiana Tarasoff before he took her life. Tarasoff's parents filed suit, alleging the university psychologist owed Tarasoff a duty to warn of the threat. The California Supreme Court noted that foreseeability was the most important consideration in establishing whether a duty exists. The court acknowledged the difficulty of predicting whether a mental health patient may criminally act against his intended victim but held the "special relationship" between a psychologist and a patient establishes a duty of care for the safety of both the patient and "any third person whom the [mental health provider] knows to be threatened by the patient.” Most jurisdictions, including Missouri, have adopted a Tarasoff duty exception.

Just as Bradley relied on the analysis in Tarasoff, the Hollis court looked to the holding in Bradley, the sole Missouri case addressing a failure to warn in the context of child abuse where the victim was abused by a patient who had a "special relationship" with a mental healthcare provider. Bradley emphasized the critical role of foreseeability in establishing duty even under the recognized narrow "special relationship" exception. Critically, Bradley noted that the duty to warn arose not only from the special relationship between the healthcare provider and the patient, but from the healthcare provider having specific knowledge that the patient posed a dangerous threat to a third party, as well as having sufficient time and ability to prevent the harm.

Since Bradley, there has been at least a narrow duty to warn relevant to Missouri mental healthcare providers in certain situations. Notably, however, Missouri courts have refused to expand the "special relationship" exception to create a blanket duty for a mental healthcare provider to warn the public at large about dangerous propensities of a patient.

Following this standard, the Hollis court reasoned that evidence of a special relationship between the hospital and the mother arising out of her mental health treatment could impose on the hospital a duty to warn of foreseeable child abuse by the mother, but not for abuse at the hands of a third party who was not a hospital patient. The hospital’s converse instruction in Hollis was proper because if the boyfriend and not the mother abused the infant, then it negated any legal duty to warn because the boyfriend was not a hospital patient. Bradley, as well as Tarasoff and its progeny, imposed a duty to warn because the harm to the victim by the patient (rather than by a third party) was foreseeable by the mental healthcare providers.

Ultimately, the Hollis court explained that if the child abuse that injured the plaintiff was committed by the patient’s boyfriend, as submitted in the court’s instructions to the jury, then the foreseeability of such abuse would be too speculative to establish a duty to warn arising out of a patient-provider relationship with the mother. “To hold otherwise potentially would make a mental health provider liable for an indeterminate range of harms for an indeterminate amount of time.”

Implications

The holding in Hollis clarifies that in Bradley, which imposed a duty to warn of a foreseeable risk of future abuse by a patient against a child only when the patient is in a special relationship with a mental health provider and the patient is the perpetrator of the child abuse. Because of the critical role of foreseeability in establishing a duty, the duty to warn does not apply to third parties outside of the special relationship between a patient and healthcare provider, as imposing liability in such a manner would be impossible to foresee. In other words, healthcare providers should keep in mind that they may have a duty to warn of risks of a patient committing harm to a third party, but there is generally no such duty to warn of potential risk of harm committed by a third-party individual who is not a patient.

* Hans Liu, 2023 Summer Law Clerk, assisted in the research and drafting of this post. Liu is a rising 3L student at Washington University School of Law.