Appeals court upholds dismissal of lawsuit in Turnaround Ranch rape case

The Missouri Southern District Court of Appeals upheld Judge David Mouton's decision to dismiss a lawsuit filed by the mother of an 11-year-old boy who was sexually assaulted by a 16-year-old patient at the Turnaround Ranch in Joplin.

The decision, which was handed down today, includes a note that the original court dismissal was heavily based on actions taken by the state legislature in recent years to cut down on lawsuits that are purported to be driving up the cost of health care.

The defendants in the case included Freeman Health Systems, Ozark Center (Turnaround Ranch) and numerous employees.

From the decision:


In April 2010, Mother filed a petition for damages on behalf of her 11-year-old son (Son).  As thereafter amended, the petition contained the following allegations.  


Freeman Health Systems was a non-profit corporation that owned a facility called Ozark Center.  Ozark Center was operated under the name Turnaround Ranch (the Ranch).  The Ranch employed Sherri Severson (Severson) and Kelly Clarkson Williams (Williams) as licensed professional counselors.  The Ranch also employed Jennifer Forsythe (Forsythe) as a “targeted case manager[.]”  Son was admitted to the Ranch on September 18, 2009.  


While at the Ranch, Severson and Williams served as his counselors.  Forsythe served as Son’s targeted case manager.  Three times during October 2009, Son was sexually assaulted by a 16-year-old patient (Patient) at the Ranch.  After each assault, Son notified Severson or other employees of the Ranch.


Neither  the counselors nor the Ranch reported these assaults to the local sheriff’s department.  The petition for damages contained seven counts.  The first count alleged that Son’s injuries had been caused by the negligent failure of his counselors and the Ranch to appropriately supervise Patient. 

The next three counts alleged negligent infliction  of emotional distress, intentional infliction of emotional distress and breach of fiduciary duty based on that same failure to supervise.  The fifth, sixth and seventh counts alleged negligent failure to warn Mother and Son that he would be sharing accommodations with Patient during Son’s stay at the Ranch. 


On December 23, 2010, the trial court heard testimony from Mary Frerer (Frerer) at a hearing for Defendants’ motion to quash.  Frerer was the Director of Human Resources and Risk Management for Ozark Center.  She testified that the Ranch “is an adolescent residential treatment facility.”  The residents of the Ranch are “seriously emotionally disturbed” and they come to the Ranch “for treatment for various emotional issues, behavioral issues.”  Any out-of-the-ordinary occurrence at the Ranch is reported, and the reports thus generated are primarily used in developing ongoing treatment plans. 

The residents live in separate cottages based on their diagnoses.  A “Level Four Plus” cottage houses children who are both mentally ill and mentally retarded.  At the time of the assaults described in the petition, Son and Patient were both residents of the same “Level Four Plus” cottage. 


Defendants filed motions to dismiss the amended petition because Mother did not file a health care affidavit. At the hearing on that motion, Defendants’ attorneys asked the trial court to consider Frerer’s testimony in determining whether the filing of a health care affidavit was required.  Mother did not object to that request.  After considering the allegations of the amended petition and Frerer’s testimony, the trial court entered an order concluding “that a health care relationship existed between the minor plaintiff and the defendants and that the gravamen of plaintiff’s claims for damages consists of claims 
against defendants in their capacities as health care providers.”  Mother was allowed 30 days to file an appropriate affidavit.  When she failed to do so, the trial court dismissed the action without prejudice.  Mother appealed.


The opinion gives the following reason for rejecting the appeal:



The question before us is whether a claim that medical professionals working at a residential treatment facility failed to adequately supervise two mentally ill and mentally retarded adolescents, so as to prevent one from committing a sexual assault upon the other, is one that relates solely to the provision of health care services. After reviewing the relevant statutory language, Missouri cases discussing the health care affidavit and cases from other jurisdictions applying similar statutes, we answer that question in the affirmative and affirm the trial court’s decision to require a health care affidavit in the case at bar. 


The case should be classified as a personal injury lawsuit rather than one alleging negligence, the court ruled. The trial court dismissed the case without prejudice, meaning it can be refiled.