Preview
24WA-CC00020
IN THE CIRCUIT COURT OF WASHINGTON COUNTY
STATE OF MISSOURI
ROBBIN STEGALL, INDIVIDUALLY AND IN © ) Case No.:
A REPRESENTATIVE CAPACITY FOR ) Div.
DECEDENT, EVA HAHN, ) JURY TRIAL DEMANDED
Plaintiff, )
Vv. )
POTOSI MANOR, INC. D/B/A POTOSI
MANOR, )
Serve: Brad Queen )
1220 N. Main Street )
Sikeston, MO 63801-1559 )
JAMES C. LINCOLN, )
Serve: 1220 N. Main Street
Sikeston, MO 63301 )
JOHN and JANE DOE 1 THROUGH 20, )
Defendants.
PETITION FOR DAMAGES
Robbin Stegall, individually, as surviving daughter to Eva G. Hahn, and in a
representative capacity for all person identified by RSMo. § 537.080, by and through her
attorneys, states:
THE PARTIES
1 Decedent Eva G. Hahn, who was born on November 25, 1942, and died on
November 9, 2022, was a resident of Potosi Manor, a skilled nursing facility located at
307 S. Highway 21 in Washington County, Potosi, Missouri.
2 This action was commenced by decedent’s surviving daughter, Robbin
Stegall, who is a resident of Cadet, Missouri.
3 Defendant Potosi Manor, Inc. operated a skilled nursing facility by the
name of Potosi Manor at 307 S. Highway 21 in Potosi, MO 63664 under a license issued
by the Missouri Department of Health & Senior Services and operated, controlled, and
conducted the business of a skilled nursing facility at said premises in Washington
County, Missouri.
4 Defendant James C. Lincoln operated a business providing healthcare
services at Potosi Manor at 307 S. Highway 21 in Potosi, MO 63664 under a license
issued by the Missouri Department of Health & Senior Services and operated, controlled,
and conducted the business of healthcare services at said premises.
5 Defendant James C. Lincoln had and has a partnership and ownership
interest in Potosi Manor as its majority shareholder. He, individually and collectively,
through the named defendants provided operational and management services to Potosi
Manor, a proprietary nursing home operating under Missouri’s Omnibus Nursing Home
Act and subject to state regulations. At all relevant times, individually and through the
named defendants, was in the business for the care and treatment of persons in need of
nursing home care. Moreover, James C. Lincoln is the majority owner operating Potosi
Manor, Inc. d/b/a Potosi Manor and other nursing home facilities owned, operated, and/or
managed by defendants and their myriad of corporate interests, including the defendant
companies named herein.
6. Defendant James C. Lincoln operated a business providing healthcare
services at Potosi Manor at 307 S. Highway 21 in Potosi, MO 63664 under a license
issued by the Missouri Department of Health & Senior Services and operated, controlled,
and conducted the business of healthcare services at said premises.
7 Upon information and belief, Defendant James C. Lincoln is a resident of
the state of Missouri. At certain times material to this action, Defendant James C. Lincoln
formed Potosi Manor, Inc. d/b/a Potosi Manor to further the business of his nursing home
operations in Missouri.
8 Defendant James C. Lincoln negotiated for favorable terms associated with
the healthcare services between Potosi Manor, Inc. and Potosi Manor all for his
individual benefit.
9 The agreements Defendant James C. Lincoin negotiated for himself is and
was solely for the benefit of himself and Potosi Manor, Inc, named herein except Potosi
Manor, where residents such as Eva G. Hahn were to receive care.
10. The agreements with themselves were designed to decrease the financial
resources available to Potosi Manor nursing facility where residents such as Eva G. Hahn
were to receive care.
11. Defendant James C. Lincoln retained the power to hire and terminate at will
employees of Potosi Manor facility and the other facilities and structures he owns in
whole or in part.
12. Defendant James C. Lincoln, individually, and in conjunction with Potosi
Manor, Inc., orchestrated additional compensation for his role as a member and was
responsible for overall management and planning of the operations of Potosi Manor.
Defendant James C. Lincoln, along with Potosi Manor, Inc., directly participated in
creating conditions at Potosi Manor, which led to the injuries and death suffered by Eva
G. Hahn, by directing or authorizing the manner in which the facility’s epstreutting,
budget and staffing’ was instituted with no regard for the discretion and the interest of
Potosi Manor or its residents, including Eva G. Hahn. Defendant James C. Lincoln,
individually and through Potosi Manor, Inc., created a budgetary and staffing strategy,
which minimized employee quantity, employee quality, safety, training, and supervision
in order to maximize profits.
13. Corporate Defendants were entities whose formal, legal structures are
known but whom it is believed and therefore averred owed, operated, maintained,
controlled, managed, financed, and in all ways operated the business of a skilled nursing
facility at 307 S. Highway 21, Potosi, MO 63664 for their profit and gain.
14. Corporate Defendants were entities whose formal, legal structures are
unknown but whom it is believed and therefore averred owned, operated, maintained,
controlled, managed, financed and in all ways operated the business of a skilled nursing
facility at 307 S. Highway 21, Potosi, MO 63664 including caring for the decedent and
deviated from accepted standards of practice in areas of: resident care; violation of the
Missouri Residents Bill of Rights, drafting and enforcement of policies and procedures,
hiring, retaining and deployment of adequate numbers of staff; supervision of employees;
and allocation of financial resources at Potosi Manor.
15. The true names and capacities of Defendants Does 1 through 20 are
unknown to plaintiff, who sues these defendants by fictitious names and will seek leave
of Court to amend this Petition when the true names and capacities have been
ascertained. Plaintiff alleges that each defendant designated as a “Doe” was responsible
in some manner for the events and happenings which proximately caused injury and
death to plaintiff's decedent, Eva G. Hahn.
16. Said deviations were the cause of harm suffered and death by plaintiff's
decedent as averred herein.
17. At this juncture, before discovery, while defendants clearly know the
identities of the persons acting on their behalf, plaintiff is unaware of the specific
identities of those persons who acted as defendants’ agents and prior to discovery lack
information as to the identifies of defendants’ management and supervisory personnel.
18. Accordingly, plaintiff cannot specifically identity by name, the agents
referred to hereafter and are able only to describe, prior to discovery, what said actions
each of them performed or failed to perform.
VENUE
19. Venue is proper because the acts and omissions complained of herein
occurred in Washington County, Missouri because defendants operated a skilled nursing
facility in Washington County, Missouri where the negligence occurred.
THE OCCURRENCE
20. Decedent was admitted to Potosi Manor on or about August 9, 2018, which
is a skilled nursing facility.
21. Beginning on or about March 3, 2024, Eva G. Hahn’s condition began
deteriorated requiring updated care plans, transfer(s) to medical facilities, and/or nursing
home(s) which did not occur on a timely basis, causing or contributing to cause
decedent’s death.
22. Defendants’ staff members failed to provide decedent with any supervision,
oversight, assessments, examinations or other attention.
23. As a consequence of decedent’s injuries and neglect, decedent succumbed
to these injuries dying on November 9, 2022, at St. Mary’s Hospital in St. Louis.
24, Decedent’s condition that led to her death was, however, in whole. or in
significant part, the result of the neglect of care needs by defendants and their staff when
decedent resided in Potosi Manor.
25. The failure to provide plaintiff's decedent with adequate care, supervision,
and oversight and to provide her consistent, trained, adequate supervision were
substantial factors in causing or contributing to cause her injuries as set-forth herein.
26. When decedent resided at Potosi Manor decedent suffered abusive and
neglectful treatment for which defendants offered no or insufficient changes in her care to
protect her from injuries although they knew or should have known that the results of
such failures resulted in her injuries and death both which were foreseeable.
Die Prior to her death, decedent suffered significant pain, suffering and distress
as a result of these injuries.
28. Furthermore, decedent’s family, to this action, have suffered the loss of her
guidance, comfort, and companionship to which they are entitled.
29. The care deficiencies that led to the aforesaid fatal injuries to decedent were
caused, inter alia, by the lack of sufficient numbers of adequately trained staff and the
failure to assign enough appropriately trained staff to decedent as required and agreed to
by defendants.
30. This resulted from defendants’ decisions to retain excessive profits from
facility operations rather than use those monies for resident assistance and direct care.
31. The foregoing decisions were made with callous indifference to decedent’s
health and wellbeing and were made in reckless disregard of the risks to which they
exposed decedent and all of the residents of the facility.
32. The foregoing, therefore, was the result of errors, omissions, reckless
disregard, and the willful and wanton misconduct of defendants as aforesaid who knew or
should have known that facility staffing at the time in question was inadequate to
properly care for and protect decedent, that it presented a high and certain risk of causing
harm to decedent and other facility residents, including death.
COUNT I
WRONGFUL DEATH
33. Plaintiff incorporates by reference all prior allegations.
A Negligence Per Se — Violations of State Regulation:
34. As the entities who owned, operated, possessed and controlled the skilled
nursing facility in which these events occurred, administered, directed, operated,
controlled, monitored and supervised the daily activities of its agents, servants and
employees (as set forth through this Petition with the greatest specificity possible prior to
discovery) in all of their business operations and had the duty, and did assume the duty,
to assure their compliance with applicable state laws and regulations, standards of care
and the terms of any and all agreements between plaintiff, decedent, and said skilled
nursing facility.
BS: The duties and activities of defendants, in operating, owning, possessing,
and controlling said skilled nursing facility, were legally required to comply with the
laws and regulations set-forth for skilled nursing facilities in the State of Missouri.
36. Although these regulations do not impart by direct reference therein, a
private cause of action for breaches of them, these regulations do constitute a body of
specific mandatory requirements and care standards required in all activities at the skilled
nursing facility, including those operated, owned, managed and/or controlled by
defendants as well as the individuals providing care to residents therein.
37. The purpose and intent of the regulations is to protect the health, safety, and
well-being of the skilled nursing facility residents and, as.a skilled nursing facility
resident, decedent was one of the persons whose interests were intended to be protected
by said regulations.
38. Furthermore, said regulations specifically provide therein for specific rights
to residents including of skilled nursing facilities set-forth by the State of Missouri.
39. Accordingly, while these regulations do impose specific obligations upon
defendants by the Missouri Department of Health & Senior Services, which enforces
them, they also, by the terms thereof, establish a personal right of all residents at skilled
nursing to live free of neglect or physical mistreatment of all kinds.
40. Furthermore, the obligations, duties and requirements of care imposed upon
skilled nursing facility, including the defendants’ parties to this case, constitute, in part,
the minimum standards of care owed to residents of such facilities by their owners and
operators.
41. Accordingly, under Missouri law, violations by defendants, their agents,
servants, and employees herein of the provisions of said regulations as alleged herein
constitute negligence per se.
42. Those regulations that defendants breached during and up to the time of
decedent’s discharge included:
a. Failing to provide plaintiffs decedent with appropriate wound care,
conducting and completing regular and frequent observation and
assessments of decedent, and supervision and monitoring of;
Failing to establish and implement a quality management plan that’
periodically reviews and evaluates staff person training, licensing
violations and plans of correction and implements measures to address
the areas needing improvement that are identified during periodic
reviews and evaluations;
Failing to provide adequate staff to meet the needs of the residents,
including decedent, as specified in the resident’s assessment and care
plan which resulted in decedent receiving care that was in violation of
applicable regulations and standards of care;
Failing to provide adequate direct care staff training to initially hired
employees and annual training to the entire staff in those areas set forth
therein;
e. Failing to perform an adequate and frequent assessment of decedent’s
wounds, blood glucose, fungal rash, foley catheter, determine whether
and how the decedent’s needs could be more safely met in defendants’
skilled nursing facility or if she needed transfer to another facility with
greater supervision of residents;
Failing to perform an adequate assessment following changes in
decedent’s condition so as to determine whether and how her care needs
could still be met in defendants’ skilled nursing facility as it was then
designed, constructed, constituted, organized, structured and staffed;
and,
Defendants’ actions constitute abuse including but not limited to neglect
of the resident, which results in physical harm, pain, and/or mental
anguish.
B Joint Venture/Aiding & Abetting
43. Defendants made an agreement, express or implied, had the equal right to
control, and did exercise such control, over the business operated, by and through
defendants’ agents, under the name of “Potosi Manor.”
44. The common purpose of defendants’ agreement was to maximize the
profits of “Potosi Manor” by providing insufficient funding to hire qualified staff and to
comply with state and professional regulations as well as the professed policies and
procedures of “Potosi Manor,” by understaffing “Potosi Manor,” and by staffing “Potosi
Manor” with improperly trained or unqualified staff.
10
AS. The common purpose of the agreement among defendants was to maximize
the profits of “Potosi Manor,” and in doing so maximize the profits to each member of
the agreement, thus creating a community of pecuniary interest among the members.
46. Defendants, whether through their administrative, supervisory, nursing,
custodial, and corporate representatives and their agents, servants, employees or
otherwise, had the right to control or else exercised significant control over decedents’
custodial and health care by the nature of their businesses activities insofar as they were
to:
a. Provide or effectuate certain diagnostic evaluations and assessments
of decedent evolving and progressing physical health and medical
ondition via periodic examination, observations and assessment as
required under applicable regulations and/or standards of care;
Provide services in accordance with portions of periodic care plans
prepared by them for decedent including, but not limited to, medical,
nursing, rehabilitative, diagnostic, curative and palliative services;
Determine decedent’s need for and effect the delivery of certain medical
interventions including evaluation and reporting changes in condition to
doctors, monitoring of her nutrition and hydration, request
hospitalizations for her medical conditions and the delivery of
prescription drugs and other medical, and rehabilitative treatments;
il
d. Participate in and undertake duties relating to evaluations and diagnoses
of the nature and extent of the medical, nursing and custodial services
required by decedent; and,
Allocate financial resources and enter into contracts and agreements
with third parties providing for the availability and delivery of services
to residents of its skilled nursing facility including decedent.
47. As a resident of defendants’ facility, decedent’s choices in her custodial and
health care decisions were substantially limited and controlled by defendants, themselves
or through their agents.
48. Defendants owed legal duties directly to and beyond any vicarious liability
of their agents, servants or employees to plaintiff and her decedent to:
a. use reasonable care in the maintenance, hiring and procurement of safe,
skilled, and adequate facilities, staff, and equipment;
b. oversee all persons who practiced nursing and care within its walls as to
patient care; and,
c. formulate, adopt, and enforce adequate rules and policies to ensure
quality care for the patients.
49. Defendants operated, administered, controlled, managed, and maintained all
administrative, supervisory and care giving activities at the skilled nursing facility in
which decedent resided.
50. Defendants controlled, regulated, effected, influenced, and directed
expenditures, allocated financial resources and funding, oversaw the care provided to its
12
residents, promulgated and enforced policies and procedures at the skilled nursing facility
in which decedent resided and undertook the responsibility to provide care to the
residents consistent with accepted standards of practice.
S51. Accordingly, defendants are directly, and jointly severally liable to plaintiff
for all of the breaches of duties of care owed to decedent as set forth hereinafter, as well
as for those breaches of duties of care owed decedent by its agents, servants, and
employees all of which constitute deviations from standards of care which caused
decedent harm and plaintiff the damages set forth herein.
52. Defendants treated Potosi Manor as its cat’s paw or else aided and abetted
Potosi Manor’s torts, as follows:
(a) These other defendants knew that Potosi Manor was going to breach,
or had breached, its legal duties to plaintiffs decedent (as well as the
other residents at the “Potosi Manor” skilled nursing facility);
(b) These other defendants gave substantial assistance or encouragement
to the other defendants to breach these duties;
(©) Such substantial assistance or encouragement proximately caused
Potosi Manor to commit its torts, including those against plaintiff's
decedent.
Cc Ordinary Negligenc
53. Defendants jointly, severally and or successively, owned, operated,
managed, maintained, controlled, possessed, budgeted, supervised and staffed the
custodial and elder care services at Potosi Manor.
13
54. The injuries to decedent as set forth herein were a direct and proximate
result of defendants’ joint and several breaches of their direct duties of care owed
decedent as well as those of their agents, servants, and employees in violating applicable
standards of care and applicable regulations, all of which have been set forth and
identified herein.
55. Accordingly, as a result of defendants’ inadequate record keeping, plaintiff
has alleged the elements of negligence and substandard care committed by defendants to
the greatest degree possible prior to discovery with the expectation and belief that further
facts in support of the allegations herein shall be later established.
56. Defendants’ negligence included:
a. Failing to create and follow the provisions of defendants’ care plan so as
to provide decedent adequate supervision and numbers of staff as
provided for and required in said service plan;
Failing to provide decedent the assistive devices and supervision she
required in order to maintain, protect and preserve her health, safety and
well-being;
Failing to keep adequate, consistent and necessary records of her
custodial and medical care including, but not limited to her orientation at
the facility so that her care givers and family could obtain information as
to her need for intervention;
14
Failing to hire, retain, employ, and train adequate numbers of the
required skilled and qualified staff to provide treatment, monitoring and
care services to decedent;
Failing to promulgate, disseminate and enforce acceptable policies and
procedures in the facility;
Failing to provide the care and supervision of decedent that defendants
and their representatives promised plaintiff they would provide;
Knowingly failing to initiate processes to discharge and transfer
decedent to another facility that could meet her care and custodial needs
when defendants and their agents, servants, and employees knew that
her care and safety could not be maintained and protected at Potosi
Manor;
Failing to hire and retain sufficiently trained medical and nursing staff at
Potosi Manor relying instead upon untrained persons lacking adequate
knowledge to make care and treatment decisions;
Failing to prevent neglect to the decedent of such a character and to
such an extent that it constituted and amounted to abuse as defined by
applicable standards and regulations;
Failing to allot sufficient portions of operational revenue to remain at
Potosi Manor to fund adequate and necessary care and, instead,
harvesting and retaining unreasonable and unwarranted revenue from
facility operations thus depriving decedent of the care which she
45
required and which was necessary for maintenanceand. protection of her
health and well-being;
The failure to diagnose and/or treat decedent’s needs was a consequence
of defendants minimizing expenditures to maximize facility profits
which, in turn, were a direct cause of the short staffing, poor training,
lack of staff to provide care and lack of supervisory staff needed to
ensure that policies, procedures and standards of care were being
implemented; and,
Acting and failing to act as aforesaid as a result of each defendants’
decision to maximize defendants’ financial and economic gain by:
i. Maintaining high rates of occupancy at the facility; and
ii. Generating private pay and insurance revenues; and,
iii. Generating higher revenues and unearned salaries for the
benefit of the officers, directors, and owners of defendants.
37. On or about August 9, 2018, Eva G. Hahn became a resident of Potosi
Manor in Washington County, Missouri.
58. When admitted to Potosi Manor, Eva G. Hahn did not have conditions
threatening her life or health.
59. Upon her admission to Potosi Manor, Eva G. Hahn was able to feel pain
and remained able to feel pain to the day of her death.
60. During her residence, defendants abused and neglected Eva G. Hahn’s
needs, care, and treatment. During her residency, Eva G. Hahn was allowed to suffer
16
injuries as a result of defendants’ negligent care and treatment. The injuries she suffered
caused or contributed to cause her death on November 9, 2022.
61. Defendants by and through their owners, management, and employees
failed to provide immediate medical care, diagnoses and treat the decedent’s life-
threatening injury, which led to her wrongful death.
62. Defendants by and through their negligence, failed to adequately transfer,
place, check, monitor, care for or assist Eva G. Hahn which caused, or contributed. to
cause her injuries and ultimately death,
63. Eva G. Hahn’s injuries were a result of neglect by defendants which caused
or contributed to cause her death on November 9, 2022. The deprivations Eva G. Hahn
suffered were the result of actions or omissions by defendants — and each of them — all of
which caused the physical pain, suffering and death to Eva G. Hahn.
64. As a direct and proximate result of defendants’ negligence as stated above,
Eva G. Hahn suffered multiple wounds, rashes, sepsis, physical abuse, severe pain, anxiety,
mental distress, injuries, and ultimately death. Additionally, Eva G. Hahn incurred expenses
for her medical care, funeral and burial.
65. As a further, direct and proximate cause of the negligence of defendants,
plaintiff has sustained losses because of Eva G. Hahn’s death in the nature of loss of
services, companionship, comfort, instruction, guidance, counsel, training and support.
D. Professional Negligenc
17
66. Defendants were healthcare providers, providing healthcare to plaintiff's
decedent.
67. Defendants’ provision or failure to provide healthcare services to plaintiff's
decedent failed to meet the requisite standard of care for such healthcare providers.
68. Defendants’ professional negligence proximately caused the injuries to, and
death of, plaintiff's decedent.
COUNT II
LOST CHANCE OF RECOVERY OR SURVIVAL’
69. Plaintiff incorporates by reference all prior allegations.
70. As healthcare providers to plaintiff's decedent, defendants had a duty to
professionally diagnose and treat Eva G. Hahn.
71. Defendants breached that duty by failing to professionally treat or diagnose
the medical problems, injuries, and diseases of plaintiff's decedent.
72. Defendants’ breach of their professional duty to plaintiff's decedent
eliminated whatever chance she had to recover or survive.
73. It’s impossible to establish that plaintiff's decedent died because of
defendants’ negligence, individually or collectively.
WHEREFORE, plaintiff prays that judgment be entered against defendants,
jointly and severally, and that plaintiff be awarded (1) a fair and reasonable amount
’ Counts II is pleaded in the alternative to Count I. See Rule 55.10 (“A party may set forth two or
more statements of a claim . . . alternately or hypothetically, either in one count . . . or in separate counts .
. . When two or more statements are made in the alternative and one of them if made independently would
be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative
statements. A party may also state as many separate claims . . . has regardless of consistency and whether
based on legal or equitable grounds.”).
18
of damages, greater than $25,000, including damages authorized by Section
538.215 and 537.090, RSMo.; (2) attorney fees, (3) costs, (4) post-judgment interest,
and (5) any other relief, legal or equitable, that is just and proper.
19
CONSTITUTIONAL CHALLENGE
COME NOW Plaintiff, by and through counsel, and raise the below constitutional
issues at the earliest opportunity as required by Missouri law as follows:
1 In limiting the amount of non-economic damages a plaintiff in a medical
negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate
the guarantee of equal protection set forth in Art. I, §.2 of the Missouri Constitution by
treating medical negligence plaintiffs differently than other negligence plaintiffs without
a rational basis for doing so.
2. In failing to provide an index for inflation on the limits for non-economic
damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the guarantee of equal
protection set forth in Art. I, § 2 of the Missouri Constitution by treating medical
negligence plaintiffs differently than other negligence plaintiffs without a rational basis
for doing so.
3 In limiting the amount of non-economic damages a plaintiff in a medical
negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate
the guarantee of open courts and certain remedies set forth in Art. I, § 14 of the Missouri
Constitution by denying medical negligence plaintiffs free and open access to Missouri’s
courts of justice and a certain remedy afforded for every injury.
4 In failing to provide an index for inflation on the limits for non-economic
damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the guarantee of open courts
and certain remedies set forth in Art. I, § 14 of the Missouri Constitution by denying
20
medical negligence plaintiffs free and open access to Missouri’s courts of justice and a
certain remedy afforded for every injury.
iF In failing to provide an index for inflation on the limits for non-economic
damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate Art. I, § 26 of the Missouri
Constitution by taking private property without just compensation.
6 In limiting the amount of non-economic damages a plaintiff in a medical
negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate
Art. I, § 10 of the Missouri Constitution by depriving medical negligence plaintiff's of due
process of law without a rational basis that furthers a legitimate state interest.
7 In failing to provide an index for inflation on the limits for non-economic
damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate Art. I, § 10 of the Missouri
Constitution by depriving medical negligence plaintiffs of due process of law without a
rational basis that furthers a legitimate state interest.
8 In limiting the amount of non-economic damages a plaintiff in a medical
negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate
the right to trial by jury set forth in Art. I, 22(a) of the Missouri Constitution.
9 In failing to provide an index for inflation on the limits for non-economic
damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the right to trial by jury set forth
in Art. I, 22(a) of the Missouri Constitution.
10. In limiting the amount of non-economic damages a plaintiff in a medical
negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate
the guarantee of equal protection set forth in the United States Constitution by treating
21
medical negligence plaintiffs differently than other negligence plaintiffs without a
rational basis for doing so.
11. In limiting the amount of non-economic damages a plaintiff in a medical
negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate
the guarantee of due process of law set forth in Art. I, § 2 of the United States
Constitution without a rational basis that furthers a legitimate interest.
12. In limiting the amount of non-economic damages a plaintiff in a medical
negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate
the right to trial by jury set forth in the Seventh Amendment to the federal Constitution.
13. In limiting the amount of non-economic damages that a plaintiff may
recover in a medical negligence case R.S.Mo. §§ 538.205, 538.210, 538.215 violate the
right of substantive due process inasmuch as the legislature is substituting its judgment
regarding the amount of compensation due to a plaintiff without any consideration of (1)
the nature of the injury; (2) the severity of the injury; (3) the wrongfulness of the
defendant’s conduct ; or (4) the impact of the injury on the plaintiff's ability to enjoy life
and liberty; and by so doing the above statutory cites deny the medical malpractice
plaintiff a cognizable liberty interest by infringing on the constitutionally guaranteed
right to have damages determined by a jury with respect to the award of non-economic
damages.
14. By requiring plaintiff's counsel to submit an affidavit stating that counsel
has obtained the written opinion of a legally qualified health care provider that each
defendant had breached the applicable standard of care, purports to limit the definition of
22
“legally qualified health care provider” to those who either are practicing or have recently
practiced the same specialty as the defendant, and purports to require the court to dismiss
the action if either plaintiffs counsel fails to submit said affidavit or, after in camera
review of the written opinion, the court determines that there is not probable cause to
believe that a qualified and competent health care provider will testify that the plaintiff
was injured due to medical negligence by a defendant, R.S.Mo. §538.225 violates
plaintiff's right to open courts and a certain remedy for every injury, guaranteed by
Article L, Section 14 of the Missouri Constitution, violates plaintiff's right to trial by jury,
guaranteed by Article I, Section 22(a) of the Missouri Constitution, violates the
separation of powers, established by Article II, Section 1 of the Missouri Constitution,
and violates the requirement that any law amending or annulling a Supreme Court rule of
practice, procedure, or pleading be limited to that purpose, established by Article V,
Section 5 of the Missouri Constitution.
PLAINTIFF DEMANDS TRIAL BY JURY AS TO ALL MATTERS
Respectfully submitted,
REEVES & GOFF, P.C.
/s/ Joseph L: Goff, Sr.
Joe L. Goff, #36736
1 North Jefferson
Farmington, MO 63640
(573) 760-8810 Office
(753) 760-1198 Facsimile
jgoff@reevesandgoff.com
D. Matthew Dreesen, #43641
DREESEN LAW GROUP, LLC
16105 Swingley Ridge Road #4097
Chesterfield, MO 63006
(636) 449-4400 Office
(636) 220-7161 Facsimile
23
mdreesen@dreesenlaw.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that on February 27, 2024, I electronically filed the foregoing with
the Clerk of the Court by using the Court’s electronic filing system which will send a
notice of electronic filing to all who have entered an appearance in this matter.
/s/ Joseph L: Goff, Sr.
Attorney
24
Preview
24WA-CC00020 IN THE CIRCUIT COURT OF WASHINGTON COUNTY STATE OF MISSOURI ROBBIN STEGALL, INDIVIDUALLY AND IN © ) Case No.: A REPRESENTATIVE CAPACITY FOR ) Div. DECEDENT, EVA HAHN, ) JURY TRIAL DEMANDED Plaintiff, ) Vv. ) POTOSI MANOR, INC. D/B/A POTOSI MANOR, ) Serve: Brad Queen ) 1220 N. Main Street ) Sikeston, MO 63801-1559 ) JAMES C. LINCOLN, ) Serve: 1220 N. Main Street Sikeston, MO 63301 ) JOHN and JANE DOE 1 THROUGH 20, ) Defendants. PETITION FOR DAMAGES Robbin Stegall, individually, as surviving daughter to Eva G. Hahn, and in a representative capacity for all person identified by RSMo. § 537.080, by and through her attorneys, states: THE PARTIES 1 Decedent Eva G. Hahn, who was born on November 25, 1942, and died on November 9, 2022, was a resident of Potosi Manor, a skilled nursing facility located at 307 S. Highway 21 in Washington County, Potosi, Missouri. 2 This action was commenced by decedent’s surviving daughter, Robbin Stegall, who is a resident of Cadet, Missouri. 3 Defendant Potosi Manor, Inc. operated a skilled nursing facility by the name of Potosi Manor at 307 S. Highway 21 in Potosi, MO 63664 under a license issued by the Missouri Department of Health & Senior Services and operated, controlled, and conducted the business of a skilled nursing facility at said premises in Washington County, Missouri. 4 Defendant James C. Lincoln operated a business providing healthcare services at Potosi Manor at 307 S. Highway 21 in Potosi, MO 63664 under a license issued by the Missouri Department of Health & Senior Services and operated, controlled, and conducted the business of healthcare services at said premises. 5 Defendant James C. Lincoln had and has a partnership and ownership interest in Potosi Manor as its majority shareholder. He, individually and collectively, through the named defendants provided operational and management services to Potosi Manor, a proprietary nursing home operating under Missouri’s Omnibus Nursing Home Act and subject to state regulations. At all relevant times, individually and through the named defendants, was in the business for the care and treatment of persons in need of nursing home care. Moreover, James C. Lincoln is the majority owner operating Potosi Manor, Inc. d/b/a Potosi Manor and other nursing home facilities owned, operated, and/or managed by defendants and their myriad of corporate interests, including the defendant companies named herein. 6. Defendant James C. Lincoln operated a business providing healthcare services at Potosi Manor at 307 S. Highway 21 in Potosi, MO 63664 under a license issued by the Missouri Department of Health & Senior Services and operated, controlled, and conducted the business of healthcare services at said premises. 7 Upon information and belief, Defendant James C. Lincoln is a resident of the state of Missouri. At certain times material to this action, Defendant James C. Lincoln formed Potosi Manor, Inc. d/b/a Potosi Manor to further the business of his nursing home operations in Missouri. 8 Defendant James C. Lincoln negotiated for favorable terms associated with the healthcare services between Potosi Manor, Inc. and Potosi Manor all for his individual benefit. 9 The agreements Defendant James C. Lincoin negotiated for himself is and was solely for the benefit of himself and Potosi Manor, Inc, named herein except Potosi Manor, where residents such as Eva G. Hahn were to receive care. 10. The agreements with themselves were designed to decrease the financial resources available to Potosi Manor nursing facility where residents such as Eva G. Hahn were to receive care. 11. Defendant James C. Lincoln retained the power to hire and terminate at will employees of Potosi Manor facility and the other facilities and structures he owns in whole or in part. 12. Defendant James C. Lincoln, individually, and in conjunction with Potosi Manor, Inc., orchestrated additional compensation for his role as a member and was responsible for overall management and planning of the operations of Potosi Manor. Defendant James C. Lincoln, along with Potosi Manor, Inc., directly participated in creating conditions at Potosi Manor, which led to the injuries and death suffered by Eva G. Hahn, by directing or authorizing the manner in which the facility’s epstreutting, budget and staffing’ was instituted with no regard for the discretion and the interest of Potosi Manor or its residents, including Eva G. Hahn. Defendant James C. Lincoln, individually and through Potosi Manor, Inc., created a budgetary and staffing strategy, which minimized employee quantity, employee quality, safety, training, and supervision in order to maximize profits. 13. Corporate Defendants were entities whose formal, legal structures are known but whom it is believed and therefore averred owed, operated, maintained, controlled, managed, financed, and in all ways operated the business of a skilled nursing facility at 307 S. Highway 21, Potosi, MO 63664 for their profit and gain. 14. Corporate Defendants were entities whose formal, legal structures are unknown but whom it is believed and therefore averred owned, operated, maintained, controlled, managed, financed and in all ways operated the business of a skilled nursing facility at 307 S. Highway 21, Potosi, MO 63664 including caring for the decedent and deviated from accepted standards of practice in areas of: resident care; violation of the Missouri Residents Bill of Rights, drafting and enforcement of policies and procedures, hiring, retaining and deployment of adequate numbers of staff; supervision of employees; and allocation of financial resources at Potosi Manor. 15. The true names and capacities of Defendants Does 1 through 20 are unknown to plaintiff, who sues these defendants by fictitious names and will seek leave of Court to amend this Petition when the true names and capacities have been ascertained. Plaintiff alleges that each defendant designated as a “Doe” was responsible in some manner for the events and happenings which proximately caused injury and death to plaintiff's decedent, Eva G. Hahn. 16. Said deviations were the cause of harm suffered and death by plaintiff's decedent as averred herein. 17. At this juncture, before discovery, while defendants clearly know the identities of the persons acting on their behalf, plaintiff is unaware of the specific identities of those persons who acted as defendants’ agents and prior to discovery lack information as to the identifies of defendants’ management and supervisory personnel. 18. Accordingly, plaintiff cannot specifically identity by name, the agents referred to hereafter and are able only to describe, prior to discovery, what said actions each of them performed or failed to perform. VENUE 19. Venue is proper because the acts and omissions complained of herein occurred in Washington County, Missouri because defendants operated a skilled nursing facility in Washington County, Missouri where the negligence occurred. THE OCCURRENCE 20. Decedent was admitted to Potosi Manor on or about August 9, 2018, which is a skilled nursing facility. 21. Beginning on or about March 3, 2024, Eva G. Hahn’s condition began deteriorated requiring updated care plans, transfer(s) to medical facilities, and/or nursing home(s) which did not occur on a timely basis, causing or contributing to cause decedent’s death. 22. Defendants’ staff members failed to provide decedent with any supervision, oversight, assessments, examinations or other attention. 23. As a consequence of decedent’s injuries and neglect, decedent succumbed to these injuries dying on November 9, 2022, at St. Mary’s Hospital in St. Louis. 24, Decedent’s condition that led to her death was, however, in whole. or in significant part, the result of the neglect of care needs by defendants and their staff when decedent resided in Potosi Manor. 25. The failure to provide plaintiff's decedent with adequate care, supervision, and oversight and to provide her consistent, trained, adequate supervision were substantial factors in causing or contributing to cause her injuries as set-forth herein. 26. When decedent resided at Potosi Manor decedent suffered abusive and neglectful treatment for which defendants offered no or insufficient changes in her care to protect her from injuries although they knew or should have known that the results of such failures resulted in her injuries and death both which were foreseeable. Die Prior to her death, decedent suffered significant pain, suffering and distress as a result of these injuries. 28. Furthermore, decedent’s family, to this action, have suffered the loss of her guidance, comfort, and companionship to which they are entitled. 29. The care deficiencies that led to the aforesaid fatal injuries to decedent were caused, inter alia, by the lack of sufficient numbers of adequately trained staff and the failure to assign enough appropriately trained staff to decedent as required and agreed to by defendants. 30. This resulted from defendants’ decisions to retain excessive profits from facility operations rather than use those monies for resident assistance and direct care. 31. The foregoing decisions were made with callous indifference to decedent’s health and wellbeing and were made in reckless disregard of the risks to which they exposed decedent and all of the residents of the facility. 32. The foregoing, therefore, was the result of errors, omissions, reckless disregard, and the willful and wanton misconduct of defendants as aforesaid who knew or should have known that facility staffing at the time in question was inadequate to properly care for and protect decedent, that it presented a high and certain risk of causing harm to decedent and other facility residents, including death. COUNT I WRONGFUL DEATH 33. Plaintiff incorporates by reference all prior allegations. A Negligence Per Se — Violations of State Regulation: 34. As the entities who owned, operated, possessed and controlled the skilled nursing facility in which these events occurred, administered, directed, operated, controlled, monitored and supervised the daily activities of its agents, servants and employees (as set forth through this Petition with the greatest specificity possible prior to discovery) in all of their business operations and had the duty, and did assume the duty, to assure their compliance with applicable state laws and regulations, standards of care and the terms of any and all agreements between plaintiff, decedent, and said skilled nursing facility. BS: The duties and activities of defendants, in operating, owning, possessing, and controlling said skilled nursing facility, were legally required to comply with the laws and regulations set-forth for skilled nursing facilities in the State of Missouri. 36. Although these regulations do not impart by direct reference therein, a private cause of action for breaches of them, these regulations do constitute a body of specific mandatory requirements and care standards required in all activities at the skilled nursing facility, including those operated, owned, managed and/or controlled by defendants as well as the individuals providing care to residents therein. 37. The purpose and intent of the regulations is to protect the health, safety, and well-being of the skilled nursing facility residents and, as.a skilled nursing facility resident, decedent was one of the persons whose interests were intended to be protected by said regulations. 38. Furthermore, said regulations specifically provide therein for specific rights to residents including of skilled nursing facilities set-forth by the State of Missouri. 39. Accordingly, while these regulations do impose specific obligations upon defendants by the Missouri Department of Health & Senior Services, which enforces them, they also, by the terms thereof, establish a personal right of all residents at skilled nursing to live free of neglect or physical mistreatment of all kinds. 40. Furthermore, the obligations, duties and requirements of care imposed upon skilled nursing facility, including the defendants’ parties to this case, constitute, in part, the minimum standards of care owed to residents of such facilities by their owners and operators. 41. Accordingly, under Missouri law, violations by defendants, their agents, servants, and employees herein of the provisions of said regulations as alleged herein constitute negligence per se. 42. Those regulations that defendants breached during and up to the time of decedent’s discharge included: a. Failing to provide plaintiffs decedent with appropriate wound care, conducting and completing regular and frequent observation and assessments of decedent, and supervision and monitoring of; Failing to establish and implement a quality management plan that’ periodically reviews and evaluates staff person training, licensing violations and plans of correction and implements measures to address the areas needing improvement that are identified during periodic reviews and evaluations; Failing to provide adequate staff to meet the needs of the residents, including decedent, as specified in the resident’s assessment and care plan which resulted in decedent receiving care that was in violation of applicable regulations and standards of care; Failing to provide adequate direct care staff training to initially hired employees and annual training to the entire staff in those areas set forth therein; e. Failing to perform an adequate and frequent assessment of decedent’s wounds, blood glucose, fungal rash, foley catheter, determine whether and how the decedent’s needs could be more safely met in defendants’ skilled nursing facility or if she needed transfer to another facility with greater supervision of residents; Failing to perform an adequate assessment following changes in decedent’s condition so as to determine whether and how her care needs could still be met in defendants’ skilled nursing facility as it was then designed, constructed, constituted, organized, structured and staffed; and, Defendants’ actions constitute abuse including but not limited to neglect of the resident, which results in physical harm, pain, and/or mental anguish. B Joint Venture/Aiding & Abetting 43. Defendants made an agreement, express or implied, had the equal right to control, and did exercise such control, over the business operated, by and through defendants’ agents, under the name of “Potosi Manor.” 44. The common purpose of defendants’ agreement was to maximize the profits of “Potosi Manor” by providing insufficient funding to hire qualified staff and to comply with state and professional regulations as well as the professed policies and procedures of “Potosi Manor,” by understaffing “Potosi Manor,” and by staffing “Potosi Manor” with improperly trained or unqualified staff. 10 AS. The common purpose of the agreement among defendants was to maximize the profits of “Potosi Manor,” and in doing so maximize the profits to each member of the agreement, thus creating a community of pecuniary interest among the members. 46. Defendants, whether through their administrative, supervisory, nursing, custodial, and corporate representatives and their agents, servants, employees or otherwise, had the right to control or else exercised significant control over decedents’ custodial and health care by the nature of their businesses activities insofar as they were to: a. Provide or effectuate certain diagnostic evaluations and assessments of decedent evolving and progressing physical health and medical ondition via periodic examination, observations and assessment as required under applicable regulations and/or standards of care; Provide services in accordance with portions of periodic care plans prepared by them for decedent including, but not limited to, medical, nursing, rehabilitative, diagnostic, curative and palliative services; Determine decedent’s need for and effect the delivery of certain medical interventions including evaluation and reporting changes in condition to doctors, monitoring of her nutrition and hydration, request hospitalizations for her medical conditions and the delivery of prescription drugs and other medical, and rehabilitative treatments; il d. Participate in and undertake duties relating to evaluations and diagnoses of the nature and extent of the medical, nursing and custodial services required by decedent; and, Allocate financial resources and enter into contracts and agreements with third parties providing for the availability and delivery of services to residents of its skilled nursing facility including decedent. 47. As a resident of defendants’ facility, decedent’s choices in her custodial and health care decisions were substantially limited and controlled by defendants, themselves or through their agents. 48. Defendants owed legal duties directly to and beyond any vicarious liability of their agents, servants or employees to plaintiff and her decedent to: a. use reasonable care in the maintenance, hiring and procurement of safe, skilled, and adequate facilities, staff, and equipment; b. oversee all persons who practiced nursing and care within its walls as to patient care; and, c. formulate, adopt, and enforce adequate rules and policies to ensure quality care for the patients. 49. Defendants operated, administered, controlled, managed, and maintained all administrative, supervisory and care giving activities at the skilled nursing facility in which decedent resided. 50. Defendants controlled, regulated, effected, influenced, and directed expenditures, allocated financial resources and funding, oversaw the care provided to its 12 residents, promulgated and enforced policies and procedures at the skilled nursing facility in which decedent resided and undertook the responsibility to provide care to the residents consistent with accepted standards of practice. S51. Accordingly, defendants are directly, and jointly severally liable to plaintiff for all of the breaches of duties of care owed to decedent as set forth hereinafter, as well as for those breaches of duties of care owed decedent by its agents, servants, and employees all of which constitute deviations from standards of care which caused decedent harm and plaintiff the damages set forth herein. 52. Defendants treated Potosi Manor as its cat’s paw or else aided and abetted Potosi Manor’s torts, as follows: (a) These other defendants knew that Potosi Manor was going to breach, or had breached, its legal duties to plaintiffs decedent (as well as the other residents at the “Potosi Manor” skilled nursing facility); (b) These other defendants gave substantial assistance or encouragement to the other defendants to breach these duties; (©) Such substantial assistance or encouragement proximately caused Potosi Manor to commit its torts, including those against plaintiff's decedent. Cc Ordinary Negligenc 53. Defendants jointly, severally and or successively, owned, operated, managed, maintained, controlled, possessed, budgeted, supervised and staffed the custodial and elder care services at Potosi Manor. 13 54. The injuries to decedent as set forth herein were a direct and proximate result of defendants’ joint and several breaches of their direct duties of care owed decedent as well as those of their agents, servants, and employees in violating applicable standards of care and applicable regulations, all of which have been set forth and identified herein. 55. Accordingly, as a result of defendants’ inadequate record keeping, plaintiff has alleged the elements of negligence and substandard care committed by defendants to the greatest degree possible prior to discovery with the expectation and belief that further facts in support of the allegations herein shall be later established. 56. Defendants’ negligence included: a. Failing to create and follow the provisions of defendants’ care plan so as to provide decedent adequate supervision and numbers of staff as provided for and required in said service plan; Failing to provide decedent the assistive devices and supervision she required in order to maintain, protect and preserve her health, safety and well-being; Failing to keep adequate, consistent and necessary records of her custodial and medical care including, but not limited to her orientation at the facility so that her care givers and family could obtain information as to her need for intervention; 14 Failing to hire, retain, employ, and train adequate numbers of the required skilled and qualified staff to provide treatment, monitoring and care services to decedent; Failing to promulgate, disseminate and enforce acceptable policies and procedures in the facility; Failing to provide the care and supervision of decedent that defendants and their representatives promised plaintiff they would provide; Knowingly failing to initiate processes to discharge and transfer decedent to another facility that could meet her care and custodial needs when defendants and their agents, servants, and employees knew that her care and safety could not be maintained and protected at Potosi Manor; Failing to hire and retain sufficiently trained medical and nursing staff at Potosi Manor relying instead upon untrained persons lacking adequate knowledge to make care and treatment decisions; Failing to prevent neglect to the decedent of such a character and to such an extent that it constituted and amounted to abuse as defined by applicable standards and regulations; Failing to allot sufficient portions of operational revenue to remain at Potosi Manor to fund adequate and necessary care and, instead, harvesting and retaining unreasonable and unwarranted revenue from facility operations thus depriving decedent of the care which she 45 required and which was necessary for maintenanceand. protection of her health and well-being; The failure to diagnose and/or treat decedent’s needs was a consequence of defendants minimizing expenditures to maximize facility profits which, in turn, were a direct cause of the short staffing, poor training, lack of staff to provide care and lack of supervisory staff needed to ensure that policies, procedures and standards of care were being implemented; and, Acting and failing to act as aforesaid as a result of each defendants’ decision to maximize defendants’ financial and economic gain by: i. Maintaining high rates of occupancy at the facility; and ii. Generating private pay and insurance revenues; and, iii. Generating higher revenues and unearned salaries for the benefit of the officers, directors, and owners of defendants. 37. On or about August 9, 2018, Eva G. Hahn became a resident of Potosi Manor in Washington County, Missouri. 58. When admitted to Potosi Manor, Eva G. Hahn did not have conditions threatening her life or health. 59. Upon her admission to Potosi Manor, Eva G. Hahn was able to feel pain and remained able to feel pain to the day of her death. 60. During her residence, defendants abused and neglected Eva G. Hahn’s needs, care, and treatment. During her residency, Eva G. Hahn was allowed to suffer 16 injuries as a result of defendants’ negligent care and treatment. The injuries she suffered caused or contributed to cause her death on November 9, 2022. 61. Defendants by and through their owners, management, and employees failed to provide immediate medical care, diagnoses and treat the decedent’s life- threatening injury, which led to her wrongful death. 62. Defendants by and through their negligence, failed to adequately transfer, place, check, monitor, care for or assist Eva G. Hahn which caused, or contributed. to cause her injuries and ultimately death, 63. Eva G. Hahn’s injuries were a result of neglect by defendants which caused or contributed to cause her death on November 9, 2022. The deprivations Eva G. Hahn suffered were the result of actions or omissions by defendants — and each of them — all of which caused the physical pain, suffering and death to Eva G. Hahn. 64. As a direct and proximate result of defendants’ negligence as stated above, Eva G. Hahn suffered multiple wounds, rashes, sepsis, physical abuse, severe pain, anxiety, mental distress, injuries, and ultimately death. Additionally, Eva G. Hahn incurred expenses for her medical care, funeral and burial. 65. As a further, direct and proximate cause of the negligence of defendants, plaintiff has sustained losses because of Eva G. Hahn’s death in the nature of loss of services, companionship, comfort, instruction, guidance, counsel, training and support. D. Professional Negligenc 17 66. Defendants were healthcare providers, providing healthcare to plaintiff's decedent. 67. Defendants’ provision or failure to provide healthcare services to plaintiff's decedent failed to meet the requisite standard of care for such healthcare providers. 68. Defendants’ professional negligence proximately caused the injuries to, and death of, plaintiff's decedent. COUNT II LOST CHANCE OF RECOVERY OR SURVIVAL’ 69. Plaintiff incorporates by reference all prior allegations. 70. As healthcare providers to plaintiff's decedent, defendants had a duty to professionally diagnose and treat Eva G. Hahn. 71. Defendants breached that duty by failing to professionally treat or diagnose the medical problems, injuries, and diseases of plaintiff's decedent. 72. Defendants’ breach of their professional duty to plaintiff's decedent eliminated whatever chance she had to recover or survive. 73. It’s impossible to establish that plaintiff's decedent died because of defendants’ negligence, individually or collectively. WHEREFORE, plaintiff prays that judgment be entered against defendants, jointly and severally, and that plaintiff be awarded (1) a fair and reasonable amount ’ Counts II is pleaded in the alternative to Count I. See Rule 55.10 (“A party may set forth two or more statements of a claim . . . alternately or hypothetically, either in one count . . . or in separate counts . . . When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims . . . has regardless of consistency and whether based on legal or equitable grounds.”). 18 of damages, greater than $25,000, including damages authorized by Section 538.215 and 537.090, RSMo.; (2) attorney fees, (3) costs, (4) post-judgment interest, and (5) any other relief, legal or equitable, that is just and proper. 19 CONSTITUTIONAL CHALLENGE COME NOW Plaintiff, by and through counsel, and raise the below constitutional issues at the earliest opportunity as required by Missouri law as follows: 1 In limiting the amount of non-economic damages a plaintiff in a medical negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the guarantee of equal protection set forth in Art. I, §.2 of the Missouri Constitution by treating medical negligence plaintiffs differently than other negligence plaintiffs without a rational basis for doing so. 2. In failing to provide an index for inflation on the limits for non-economic damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the guarantee of equal protection set forth in Art. I, § 2 of the Missouri Constitution by treating medical negligence plaintiffs differently than other negligence plaintiffs without a rational basis for doing so. 3 In limiting the amount of non-economic damages a plaintiff in a medical negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the guarantee of open courts and certain remedies set forth in Art. I, § 14 of the Missouri Constitution by denying medical negligence plaintiffs free and open access to Missouri’s courts of justice and a certain remedy afforded for every injury. 4 In failing to provide an index for inflation on the limits for non-economic damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the guarantee of open courts and certain remedies set forth in Art. I, § 14 of the Missouri Constitution by denying 20 medical negligence plaintiffs free and open access to Missouri’s courts of justice and a certain remedy afforded for every injury. iF In failing to provide an index for inflation on the limits for non-economic damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate Art. I, § 26 of the Missouri Constitution by taking private property without just compensation. 6 In limiting the amount of non-economic damages a plaintiff in a medical negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate Art. I, § 10 of the Missouri Constitution by depriving medical negligence plaintiff's of due process of law without a rational basis that furthers a legitimate state interest. 7 In failing to provide an index for inflation on the limits for non-economic damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate Art. I, § 10 of the Missouri Constitution by depriving medical negligence plaintiffs of due process of law without a rational basis that furthers a legitimate state interest. 8 In limiting the amount of non-economic damages a plaintiff in a medical negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the right to trial by jury set forth in Art. I, 22(a) of the Missouri Constitution. 9 In failing to provide an index for inflation on the limits for non-economic damages, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the right to trial by jury set forth in Art. I, 22(a) of the Missouri Constitution. 10. In limiting the amount of non-economic damages a plaintiff in a medical negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the guarantee of equal protection set forth in the United States Constitution by treating 21 medical negligence plaintiffs differently than other negligence plaintiffs without a rational basis for doing so. 11. In limiting the amount of non-economic damages a plaintiff in a medical negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the guarantee of due process of law set forth in Art. I, § 2 of the United States Constitution without a rational basis that furthers a legitimate interest. 12. In limiting the amount of non-economic damages a plaintiff in a medical negligence case may recover from a jury, R.S. Mo. §§ 538.205, 538.210, 538.215 violate the right to trial by jury set forth in the Seventh Amendment to the federal Constitution. 13. In limiting the amount of non-economic damages that a plaintiff may recover in a medical negligence case R.S.Mo. §§ 538.205, 538.210, 538.215 violate the right of substantive due process inasmuch as the legislature is substituting its judgment regarding the amount of compensation due to a plaintiff without any consideration of (1) the nature of the injury; (2) the severity of the injury; (3) the wrongfulness of the defendant’s conduct ; or (4) the impact of the injury on the plaintiff's ability to enjoy life and liberty; and by so doing the above statutory cites deny the medical malpractice plaintiff a cognizable liberty interest by infringing on the constitutionally guaranteed right to have damages determined by a jury with respect to the award of non-economic damages. 14. By requiring plaintiff's counsel to submit an affidavit stating that counsel has obtained the written opinion of a legally qualified health care provider that each defendant had breached the applicable standard of care, purports to limit the definition of 22 “legally qualified health care provider” to those who either are practicing or have recently practiced the same specialty as the defendant, and purports to require the court to dismiss the action if either plaintiffs counsel fails to submit said affidavit or, after in camera review of the written opinion, the court determines that there is not probable cause to believe that a qualified and competent health care provider will testify that the plaintiff was injured due to medical negligence by a defendant, R.S.Mo. §538.225 violates plaintiff's right to open courts and a certain remedy for every injury, guaranteed by Article L, Section 14 of the Missouri Constitution, violates plaintiff's right to trial by jury, guaranteed by Article I, Section 22(a) of the Missouri Constitution, violates the separation of powers, established by Article II, Section 1 of the Missouri Constitution, and violates the requirement that any law amending or annulling a Supreme Court rule of practice, procedure, or pleading be limited to that purpose, established by Article V, Section 5 of the Missouri Constitution. PLAINTIFF DEMANDS TRIAL BY JURY AS TO ALL MATTERS Respectfully submitted, REEVES & GOFF, P.C. /s/ Joseph L: Goff, Sr. Joe L. Goff, #36736 1 North Jefferson Farmington, MO 63640 (573) 760-8810 Office (753) 760-1198 Facsimile jgoff@reevesandgoff.com D. Matthew Dreesen, #43641 DREESEN LAW GROUP, LLC 16105 Swingley Ridge Road #4097 Chesterfield, MO 63006 (636) 449-4400 Office (636) 220-7161 Facsimile 23 mdreesen@dreesenlaw.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on February 27, 2024, I electronically filed the foregoing with the Clerk of the Court by using the Court’s electronic filing system which will send a notice of electronic filing to all who have entered an appearance in this matter. /s/ Joseph L: Goff, Sr. Attorney 24