The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
FRANK HENDRICKS, as the surviving son of )
decedent, SHIRLEY F. HENDRICKS, )
)
Plaintiff, )
)
vs. ) Case No. 1:23-cv-156-MTS
)
N & R OF ELDON, INC., et al., )
)
Defendants. )
MEMORANDUM AND ORDER
Before the Court is Defendants N & R of Eldon, Inc., Health Systems, Inc., and James Lincoln
(collectively, “Defendants”)’s Motion to Dismiss for Failure to File a Compliant Health Care
Affidavit and Alternative Motion for In Camera Review, Doc. [39]. Plaintiff Frank Hendricks filed
his Complaint alleging a wrongful death claim against all Defendants and an alter ego claim against
James Lincoln. Doc. [1] at 23, 28. Plaintiff was granted leave to amend, and with his Amended
Complaint, Doc. [28], Plaintiff filed three Affidavits of Merit, one for each Defendant, Docs. [36],
[37] and [38]. Later, Defendants filed the present Motion to Dismiss claiming that the filed Affidavits
of Merit were insufficient. For the reasons discussed herein, the Court will deny Defendants’ Motion.
Background
Shirley F. Hendricks, who is now deceased (“Decedent”), was at risk of developing skin
breakdown and pressure ulcers at the time of her admission to Defendant N & R of Eldon, Inc.’s care,
a nursing facility located within Eldon, Missouri (“N & R”). Doc. [28] ¶¶ 1, 44. During her time at
N & R’s facility, Decedent experienced both the development and progression of pressure injuries in
her sacral/coccyx and heels due to prolonged contact with urine and feces. Id. ¶¶ 45-46. These
pressure injuries became infected resulting in severe “sepsis and bacteremia,” necessitating
hospitalization of the Decedent and subsequent antibiotic treatment. Id. ¶ 47. Ultimately, on July 26,
2022, Shirley Hendricks died from a pressure ulcer. Id. ¶ 1.
Plaintiff Frank Hendricks is a surviving child of Decedent, and he filed suit against Defendants
for wrongful death.1 Stated briefly, it is Plaintiff’s contention that N & R’s nursing facility failed to
conduct an assessment of Decedent’s developing skin breakdown, failed to offload Decedent’s
afflicted areas, and failed to implement a “Care Plan” or turning and repositioning program to offload
such pressure areas, along with other failures, which resulted in her death. Id. ¶¶ 45, 48-49.
Discussion
Missouri statute requires that in any action against a health care provider for damages for
personal injury or death on account of the rendering or failure to render health care services, the
plaintiff shall file an affidavit stating that he or she has 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 under similar circumstances and that
such failure directly caused or contributed to cause the damages claimed. Mo. Rev. Stat. § 538.225.1.
A “legally qualified health care provider” is then defined as “a health care provider licensed in this
state or any other state in the same profession as the defendant and either actively practicing or within
five years of retirement from actively practicing substantially the same specialty as defendant.” Id.
§ 538.225.2 (emphasis added).
Here, Plaintiff filed three Affidavits of Merit attempting to satisfy the prerequisites of
§ 538.225, and each Affidavit listed Dr. John Kirby as the legally qualified health care provider. See
Docs. [36], [37], [38]. The Affidavits state that Dr. Kirby is a “physician,” “board-certified in internal
1 Mo. Rev. Stat. § 537.080 provides that “[w]henever the death of a person results from any act, occurrence, transaction,
or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof,
the person or party who . . . would have been liable if death had not ensued shall be liable in an action for damages,
notwithstanding the death of the person injured, which damages may be sued for: (1) [b]y the spouse or surviving
children[.]”
medicine,” and “actively practicing.” Id. It is Defendants’ contention that this is insufficient to be
“licensed in the same profession as the defendant” or to be in “substantially the same specialty”
because Plaintiff has alleged Defendants operated a Missouri licensed nursing home, and the involved
medical negligence involves the delivery of nursing care to long term care residents. Doc. [39] at 4-
5. Plaintiff has attached the opinion to be provided by Dr. Kirby, as well as his curriculum vitae to
demonstrate he practices in substantially the same specialty. Docs. [40-1], [40-2].
The Missouri Supreme Court’s “primary rule of statutory interpretation is to give effect to
legislative intent as reflected in the plain language of the statute at issue.” Sender v. City of St. Louis,
681 S.W.3d 189, 191 (Mo. banc 2024). Looking to § 538.225.2, the plain language requires a legally
qualified health care provider to be “licensed in the same profession as the defendant.” A “health
care provider” is defined as “any physician, hospital, health maintenance organization, . . . [or] long-
term care facility.” Mo. Rev. Stat. § 538.205(6). Here, Defendants include N & R of Eldon, a skilled
nursing facility; James Lincoln, who “operated, managed, maintained, and/or controlled N & R OF
ELDON, INC.;” and Health Systems, Inc., who also “operated, managed, maintained, and controlled
N & R OF ELDON, INC.” Doc. [28] ¶¶ 7, 16, 23. Dr. Kirby is licensed as a physician, which is
considered a health care provider, and is sufficient to satisfy the initial licensure requirement of §
538.225. See Vaughn v. United States, 6:07-cv-03412-RED, 2008 WL 11338413, at *1 (W.D. Mo.
Apr. 17, 2008) (explaining that when a “plaintiff sues an institutional health care provider” the
plaintiff must submit “affidavits of merit from physicians who practice in substantially the same
specialties as that of the institutional defendant’s employees”).
Dr. Kirby also practices substantially the same specialty as Defendants. Specifically, Dr.
Kirby has “extensive experience in long term care treatment and geriatric medicine.” Doc. [40-1];
Doc. [40-2] (explaining that Dr. Kirby’s professional experience includes “nursing
home/rehabilitation hospital patient care, office practice, 2011-present”). The Missouri Supreme
Court has stated that “[t]o honor [the legislature’s] intent, ‘substantially the same specialty’ must
modify ‘actively practicing’ as well as ‘within five years of retirement from actively practicing,’” and
that there may be situations where the health care provider may not have the “exact board certification
as the defendant.” Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683, 688-689 (Mo. banc
2010). Such is the case here. Dr. Kirby has “substantially the same specialty” as Defendants, a
nursing facility, because although he is a physician, he has “extensive experience in long term care
treatment and geriatric medicine” and is actively practicing medicine. Doc. [40-1]. Therefore, the
Court will deny Defendants’ Motion to Dismiss.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, Doc. [39], is DENIED.
Dated this 4th of June 2024.
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UNITED STATES DISTRICT JUDGE