Missouri Court of Appeals Holds Two-year Statutory Limitations Period Does Not Apply to Action Against In-home Personal Care Provider
ABSTRACT: A trial court's grant of summary judgment in favor of an in-home personal care provider has been reversed on statute of limitation grounds, where the plaintiff had filed her personal injury suit two years and one day after the date of injury.
In Noelke v. Heartland Independent Living Center, the Missouri Court of Appeals, Eastern District, reversed a trial court’s grant of summary judgment in favor of an in-home personal care provider on statute of limitations grounds, where the plaintiff had filed her personal injury suit two years and one day after the date of injury. The suit was brought by a plaintiff with spina bifida resulting in paraplegia. Noelke claimed that defendant Heartland’s employee, a certified nurse’s aide, injured her with hot water while bathing, resulting in severe permanent injury requiring skin grafting and debridement surgery. This decision has potentially significant implications for individual in-home care providers and their employers.
The central issue was which statutory limitations period applied – the two-year limitations period in § 516.105, RSMo. (for actions against health care providers), or the general five-year limitations period in § 516.120 for personal injury and other types of actions. This distinction was critical because the suit was filed less than five years but more than two years after the injury date.
Heartland argued that since its employee was providing health care services to the plaintiff pursuant to a vendor contract with the Missouri Department of Health and Senior Services, it qualified as a health care provider “that provides health care services under the authority of a license or certificate” under § 538.205(6), and thus § 516.105’s two-year limitations period applied to bar the claim. The trial court agreed and granted Heartland’s motion for summary judgment.
On appeal, Noelke argued her claim was one for ordinary negligence and not a medical negligence claim against a health care provider, and thus the five-year limitations period applied. She argued Heartland failed to establish it was a health care provider under Missouri law or that its employee was performing a health care service at the time of the injury.
The Court of Appeals agreed with Noelke and held that Heartland did not satisfy the statutory requirements, and the two-year limitations period did not apply. The court stated that in-home personal care services are not one of the enumerated professions under § 538.205(6), RSMo., and these providers do not otherwise qualify as health care providers, because they are not required to practice under the authority of a license or certificate. The court was not persuaded by Heartland’s argument that its contract with the Missouri Department of Health and Senior Services qualified it as an entity providing health care services.
The court was also not persuaded by the fact that Heartland’s employee was a nurse’s aide certified by the State of Missouri. The court explained:
“… [the] employee’s certification is irrelevant to Heartland’s status as an entity providing health care services. Only Heartland, not the individual employee, was named in the lawsuit, and thus only Heartland’s status as a health care provider determines the statute of limitations… courts do not consider the certifications of the individual employees in determining whether the employer meets the definition of a health care provider.” (Emphasis added).
The Noelke court cited the 1999 Stalcup v. Orthotic & Prosthetic Lab, Inc. decision for the proposition that courts do not consider certifications of individual employees in determining whether the employer meets the definition of a health care provider. The Stalcup court held that the employer lab did not meet the definition of a health care provider, and the two-year statute of limitations was inapplicable, even though the employee who performed a prosthetic fitting was a certified prosthetist. The lab also had argued it qualified as a health care provider because it was a lab certified by the American Board for Certification in Orthotics and Prosthetics, and that the statute does not require licensing or certification by a governmental body. The court disagreed and concluded that government regulation is the authority that the statute requires.
The plaintiff in Stalcup relied on expert testimony from the Director of Northwestern University's Prosthetic and Orthotic Center to establish the lab’s deviation from the standard of care. This expert was a certified prosthetist who was familiar with the employee, also a certified prosthetist. The expert testified that, in his opinion, the procedures employed by the prosthetist and his employer fell below the skill level employed by certified prosthetists. The authors believe this testimony suggests the lab and its employee were, in fact, providing a health care service, and that the two-year limitations period should have applied.
The Noelke court also cited the 2004 Payne v. Mudd Court of Appeals decision, where the court distinguished its facts from Stalcup and found that the two-year limitations period applied. The Payne court held that “unlike fitters of prosthetics, hearing instrument specialists such as Mudd are licensed by the State of Missouri, and the practice of fitting hearing instruments is a regulated profession in Missouri.”
One case the Noelke parties and court did not seem to consider is the 2013 Court of Appeals decision in State ex rel. Red Cross Farm, Inc. v. Harman, which addressed who is or is not a “health care provider”. Harman did not involve a statute of limitations issue but instead involved another statutory provision – the “affidavit of merit” requirement in § 538.225. The court held a pharmacy qualified as a health care provider, and thus the affidavit of merit requirement applied. The court found a pharmacy satisfied the definition of health care provider in that a pharmacist is one of the professions listed in the statutory definition, and it would be incongruous to hold that a pharmacist is a health care provider, but the pharmacy employer where the pharmacist works is not.
The Harman court cited the 1994 Court of Appeals decision in PS vs. Psychiatric Coverage Ltd., which observed that “public-policy grounds” support the conclusion “that a professional corporation providing health care services through licensed practitioners is a health care provider for the purposes of Chapter 538”. The Harman court also cited a 2005 federal district court ruling in Henry v. Mylan Pharms., Inc. where the court concluded that “It would be unfair to hold a corporate pharmacy liable for the actions of its employee, the pharmacist, but not extend to the pharmacy the same statutory rights the pharmacist holds.”
In Noelke, the defendants are seeking to have the case reviewed by the Missouri Supreme Court, but it is not yet known if the Supreme Court will agree to do so. The authors believe this case was incorrectly decided in that the statutory protections afforded to a certified nurse’s aide should have applied to Heartland. This position is largely based on the public policy argument expressed in the Harman case (and others cited therein) that the Noelke court did not seem to consider. We will continue to monitor this case, and report on any further developments.