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Payne v. Mudd2/3/2004
Ella Payne (Payne) appeals from the trial court's judgment dismissing her personal injury claim against Bob Mudd (Mudd) and Southwestern Hearing Aid Company, Inc. (Southwestern). We affirm.
Payne filed her petition on December 23, 2002, alleging that she visited the offices of Southwestern for the purpose of being fitted for hearing aids on December 3, 1998. Payne further alleged as follows: Southwestern, by and through its agent Mudd, inserted or injected a material into Payne's left ear canal for the purpose of creating a mold. Southwestern failed to remove the material and punctured Payne's left ear drum. As a result, Payne suffered severe and permanent injuries to her ear and hearing.
Mudd and Southwestern moved to dismiss Payne's claim as barred by the two-year statute of limitations contained in Section 516.105 RSMo 2000. The trial court found that the services being rendered to Payne at the time of her alleged injury constituted health care services by a health care provider which made Section 516.150 applicable. The trial court sustained the motion to dismiss and dismissed Payne's petition with prejudice. This appeal follows.
In her sole point on appeal, Payne argues the trial court erred in dismissing her claim as barred by Section 516.105's two-year statute of limitations because the five-year statute of limitations contained in Section 516.120 applied to her claim that her injuries occurred while Mudd and Southwestern were creating a mold for a hearing device.
When reviewing a dismissal of cause of action, we examine the pleadings, treating all alleged facts as true and construing the allegations favorable to the pleader. Armistead v. A.L.W. Group, 60 S.W.3d 25, 26 (Mo. App. E.D. 2001). The motion to dismiss will be sustained if it clearly appears on the face of the petition that the claim is barred by the applicable statute of limitations. Id.
The statute of limitations contained in Section 516.105 pertains to actions against health care providers for medical malpractice. It provides, in pertinent part:
All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of .
Section 516.105. Thus, the question before us is whether Payne's petition for damages for malpractice, negligence or mistake related to health care alleged a cause of action against an entity and its employee providing health care services.
In making its decision, the trial court relied on Blais v. New England Center for Hearing Rehabilitation, LLC, 2003 Conn. Super. LEXIS 661 (Conn. Super. Ct. Mar. 13, 2003), an unpublished opinion of the Superior Court of Connecticut which held that a defendant fitting a child for a hearing aid was a health care provider and that the plaintiff's action constituted a medical malpractice claim for which a "good faith certificate" was required. Id . at -11. The trial court then considered Chapter 538's definition of health care services for further instruction. Section 538.205.5, which pertains to tort actions based on improper health care, defines health care services as:
any services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or, if the health care provider is an instit
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