SPRINGFIELD — The Missouri Court of Appeals Southern District has upheld a lower court’s decision to grant summary judgment in favor of Lester E. Cox Medical Centers and CoxHealth in a civil case involving allegations of sexual assault by a certified medical assistant against a patient during medical care.
The appellate court affirmed the ruling after finding that the plaintiff, A.O., failed to provide the necessary expert medical testimony to support her claims, according to the a July 23 decision in the appellate court.
A.O. filed the original petition on July 9, 2021, naming Cox South and CoxHealth among four defendants. The case centered on an incident that occurred on Oct. 26, 2020, when A.O. was receiving allergy shot treatment at the defendants’ allergy/immunology clinic.
According to the petition, while under observation for an allergic reaction, A.O. alleged that certified medical assistant K.T. lifted her shirt, touched her breasts, and instructed her to remove her bra and pants under the pretense of checking for hives. The petition further alleged that K.T. used his ungloved hands to touch A.O.’s vagina and rectum without her consent.
The plaintiff also alleged that K.T. had assaulted another woman months earlier and was neither fired nor punished after that incident was reported.
A.O. brought claims of negligent hiring and retention, general negligence, negligent supervision and failure to protect and supervise, asserting that the defendants’ negligence directly caused her harm.
Cox South and CoxHealth filed a motion to dismiss, citing A.O.’s failure to submit a timely affidavit of merit required in medical negligence cases.
The trial court granted A.O. time to submit affidavits, which she did on May 9, 2023. One affidavit referenced HR expert Stephanie Nelson, and the other referenced Dr. Brett Miller, an orthopedic surgeon.
Cox South argued that Nelson was not a licensed healthcare provider and that Miller, as an orthopedic surgeon, did not practice in the same specialty as the allergy clinic involved in the case.
Cox South later filed a motion for summary judgment, arguing A.O. had failed to produce competent medical expert testimony necessary to support her medical negligence claims. The trial court granted the motion on Oct. 11, 2023, quashing the previously scheduled jury trial.
The formal judgment was entered on Oct. 20, 2023, concluding that A.O. had not disclosed any timely or qualified expert witnesses to testify that K.T.’s actions deviated from the standard of care.
The trial court held that even though K.T.’s alleged conduct might have been inappropriate, determining whether his actions constituted a breach of medical care standards required expert testimony.
The court noted that because A.O. admitted K.T. told her he was checking for hives, and because the care occurred during a medical observation following an allergic reaction, a medical expert was needed to establish whether those actions fell below the standard of care for healthcare providers.
A.O. had attempted to designate Miller as an expert witness just 17 days before the trial, long after the April 3, 2023 deadline.
The trial court denied the late designation and relied on the undisputed facts that A.O. had not met the legal burden to proceed with her claims without medical expert support. It ruled that K.T.’s employment by Cox South was uncontested and that all other defendants had been dismissed or were not actively contested.
The Court of Appeals reviewed the summary judgment de novo and concluded that the trial court acted properly. The opinion reaffirmed that cases involving medical judgment require expert testimony and that A.O.’s failure to provide qualified and timely expert opinions was fatal to her claims. The appellate court also affirmed that the Oct. 20, 2023, judgment disposed of all parties and issues and became final when no post-trial motions were filed within 30 days.
A.O. filed a timely notice of appeal on Feb. 5, 2024, followed by a second appeal from the original judgment after being granted leave. The appeals were consolidated, but the appellate court found no merit in any of A.O.’s five points on appeal and upheld the lower court’s ruling in its entirety.
Missouri Court of Appeals, Southern District case number: SD38390, SD38397
