Arthur J. Missischia, D.M.D., Appellant/Cross-Respondent, v. St. John's Mercy Medical Center, John J. Delfino, D.M.D., and John J. Delfino, D.M.D., P.C., Responents/Cross-Appellants

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Arthur J. Missischia, D.M.D., Appellant/Cross-Respondent, v. St. John's Mercy Medical Center, John J. Delfino, D.M.D., and John J. Delfino, D.M.D., P.C., Responents/Cross-Appellants Case Number: ED74687 Handdown Date: 01/25/2000 Appeal From: Circuit Court of City of St. Louis, Hon. Jimmie M. Edwards Counsel for Appellant: P. Terence Crebs and Matthew P. Brookman Counsel for Respondent: Allen S. Boston, Ronald A. Norwood, Richard A. Wunderlich Opinion Summary: Arthur J. Misischia appeals the circuit court judgment for St. John's Mercy Medical Center, John J. Delfino, D.M.D., and John J. Delfino, D.M.D., P.C., a/k/a St. Louis Oral & Maxillofacial Surgeons, Ltd., on Misischia's common law claims for tortious interference with business relations, malicious prosecution, abuse of process, retaliation, conspiracy, and slander. St. John's cross-appeals a denial of attorney's fees. Dr. Delfino and O&MS cross-appeal a judgment for Misischia on his claim for fraudulent misrepresentation against Dr. Delfino. TRANSFERRED. Division One holds: Misischia raises the validity of the Health Care Quality Improvement Act of 1986, 42, U.S.C. section 11101. Article V, section 3 of the Missouri Constitution provides the Missouri Supreme Court with exclusive appellate jurisdiction of all cases involving the validity of a statute of the United States. Citation: Opinion Author: Gary M. Gaertner, Presiding Judge Opinion Vote: TRANSFERRED. Simon, J., and Russell, C.J., concur. Opinion:

Appellant, Arthur J. Misischia, ("plaintiff"), appeals from the judgment of the Circuit Court of the City of St. Louis, in favor of respondents(FN1), St. John's Mercy Medical Center ("St. John's"), John J. Delfino, D.M.D. ("Dr. Delfino") and John J. Delfino, D.M.D., P.C., a/k/a St. Louis Oral & Maxillofacial Surgeons, Ltd. ("O&MS"), on plaintiff's common law claims for tortious interference with business relations, malicious prosecution, abuse of process, retaliation, conspiracy, and slander. St. John's cross-appeals on a denial of attorney's fees. Dr. Delfino and O&MS cross-appeal on a judgment in favor of plaintiff on his claim for fraudulent misrepresentation against Dr. Delfino. We transfer to the Supreme Court. Plaintiff brought this suit against St. John's, Dr. Delfino and O&MS for damages in connection with the suspension of his medical and dental staff privileges at St. John's and the termination of his contracts with St. John's and O&MS. After several amendments to plaintiff's original petition and a series of motions to dismiss and for summary judgment, the remaining issues for trial were plaintiff's claims for slander against Dr. Delfino and O&MS (Count IV), tortious interference against Dr. Delfino (Counts V and VIII), and fraud against Dr. Delfino and O&MS (Count VII). The necessity of transfer of this case to the Missouri Supreme Court revolves around plaintiff's claims for slander, Count IV, which were originally made against St. John's as well as Dr. Delfino and O&MS. Therefore, we contain the otherwise voluminous recitation of facts to those relevant to that issue. In plaintiff's second amended petition, he alleged defendants, through Dr. Delfino, made numerous knowingly untrue statements, including: plaintiff was in jail; plaintiff was facing felony charges; plaintiff had emotional and psychiatric problems; and, plaintiff was "certifiably crazy." Dr. Delfino allegedly made these statements to numerous doctors, executives of St. John's, and at least one nurse. On July 10, 1997, defendants filed a joint motion for summary judgment, arguing Section 11111(a)(1) of the Health Care Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C. Section 11101 et seq., entitled St. John's and Dr. Delfino to immunity. On August 11, 1997, plaintiff filed a response and memorandum in opposition to defendants' summary judgment motion, which included the argument HCQIA was unconstitutional. On October 9, 1997, St. John's filed a second motion for summary judgment addressing plaintiff's slander claim on its merits, stating in part St. John's was entitled to summary judgment because some of the alleged slanderous statements were not defamatory, plaintiff could not show he had sustained any damage and because some of the statements were privileged. On October 28, 1997, the trial court handed down a judgment sustaining St. John's motion for summary judgment as to slander, ruling that "plaintiff has failed to rebut the presumption that St. John's is not liable for damages to plaintiff for the results of its peer review action pursuant to HCQIA, section 11111." In a footnote the court noted although it "entertains grave doubts that the HCQIA is constitutional,

the Court has not reached that issue, because the Court considers that St. John's is entitled to summary judgment for another reason: on this record, it is patent that St. John's alleged slanderous statements are privileged." However, this footnote conflicts with a subsequent ruling, by the same court, on November 24, 1997, wherein the court noted "...St. John's has been dismissed from the case because the Court found it immune from liability under [HCQIA]...." On October 28, 1997, defendants Delfino and O&MS filed a motion to join defendant St. John's October 9, 1997 motion for summary judgment. On November 17, 1997, plaintiff filed a response to the aforementioned motion submitting in part, that the motion for summary judgment was moot as to St. John's and should be denied for that reason. On November 24, 1997 the trial court handed down its judgment agreeing with plaintiff that the motion was moot as to St. John's (see reference to November 24 judgment in prior paragraph). Further, in its judgment, the trial court denied the bulk of defendant Delfino's motion for summary judgment, finding issues of fact in dispute, for example, as to whether defendants made the statements out of malice, thereby precluding the intra-corporate immunity. The trial court did grant the motion to defendant as to a letter plaintiff received recounting the allegations contained in the incident reports upon which plaintiff's summary suspension was partially based. On February 5, 1998 the trial commenced. As the trial court had granted St. John's motion for summary judgment based on HCQIA, the trial proceeded against Dr. Delfino and O&MS alone on plaintiff's remaining claims for slander (Count IV), tortious interference (Counts V and VIII) and fraud (Count VII). On February 24, 1998, the jury returned a verdict in favor of Delfino and O&MS on Counts IV, V and VIII, and in favor of plaintiff on his fraud claims contained in Count VII, awarding plaintiff $265,000. Plaintiff appealed. One of the issues appealed was the trial court's granting of summary judgment to St. John's finding St. John's was entitled to immunity under HCQIA. Delfino and O&MS assert in their respondent's brief that they, along with St. John's, are entitled to immunity under HCQIA. Our initial inquiry must be as to whether this court has jurisdiction to hear this case. Article V, section 3 of the Missouri Constitution provides the Missouri Supreme Court has the exclusive appellate jurisdiction of all cases involving the validity of a statute of the United States. If any of the points on appeal involve such question, we must transfer the entire case to the Supreme Court. Estate of Potashnick, 841 S.W.2d 714, 718 (Mo.App.E.D. 1992). However, the claim must be preserved. State ex rel. Nixon v. McClure, 969 S.W.2d 801, 803 (Mo.App.W.D. 1998). "To preserve a constitutional question for review, a matter must be raised at the first opportunity, the sections of the constitution alleged to have been violated must be specifically asserted, the matter must be preserved in the motion for new trial, and the questions must be adequately covered in the briefs." Id. (quoting State v. Pullen, 843 S.W.2d 360, 364 (Mo.banc 1992)).

"The purposes of the rule requiring that constitutional issues be raised at the earliest opportunity are to prevent surprise to the opposing party, and to permit the trial court an opportunity to fairly identify and rule on the issue." Id. (quoting Land Clearance for Redevelopment Auth. v. Kansas Univ. Endowment Ass'n, 805 S.W.2d 173, 175 (Mo.banc 1991)). Further, the question or claim must be substantial and not merely colorable; if colorable, then jurisdiction remains in this court. Estate of Potashnick, 841 S.W.2d at 718. A claim is "substantial when, upon preliminary inquiry, the contention discloses a contested matter of right, involving some fair doubt and reasonable room for controversy; but, if such preliminary inquiry discloses the contention is so obviously unsubstantial and insufficient, either in fact or law, as to be plainly without merit and a mere pretense, the claim may be deemed merely colorable." Id. Plaintiff's first point on appeal raises the issue of the constitutionality of the Health Care Quality Improvement Act of 1986, 42 USC Section 11101, et seq. Specifically, plaintiff asserts Congress' purported preemption of state law causes of action in HCQIA's qualified immunity provision is invalid because it invades subjects traditionally governed by state law and ranges far beyond the stated purpose of Congress for the enactment of HCQIA and its qualified immunity. Furthermore, plaintiff argued Congress violated Amendment X of the U.S. Constitution and thereby exceeded its powers in attempting to immunize conduct otherwise actionable under state law. Clearly this point raised the validity of HCQIA, a statute of the United States. Our review of the record indicates plaintiff preserved the constitutional questions for review. Plaintiff raised the issue in his response to defendants' summary judgment motion based on HCQIA, and specifically asserted what sections of the constitution were violated. Plaintiff preserved the issue in his motion for new trial and all parties adequately covered the issues in their briefs. Our preliminary inquiry also discloses that plaintiff's arguments regarding the validity of HCQIA do involve a contested matter of right, involve some fair doubt and reasonable room for controversy.(FN2) Further, as illustrated by the trial court's judgments on October 28, 1997 and November 24, 1997, the court had the opportunity to consider the constitutional issue and implicitly did when it found St. John's immune from liability under HCQIA, in the face of plaintiff's challenge to same. Defendant St. John's directs our attention to Motchar v. Hollingsworth, 162 S.W.2d 805, 807 (Mo. 1942), for the proposition the Supreme Court lacks jurisdiction in a case decided independently of any constitutional question. St. John's then notes the trial court's October 28, 1997 ruling, wherein a footnote it states it does not reach the constitutional issue, but rather finds the slander issue can be resolved on the fact the statements are privileged. We believe the trial court did reach the constitutional issue, because in the body of that same October 28th ruling, the court found St. John's immunity based on HCQIA. Further, in the trial court's November 24th, 1997 ruling it found "....St. John's has been

dismissed from the case because the Court found it immune from liability under [HCQIA]....." That latter judgment also denies the summary judgment motion on multiple bases including an argument based on Rice v. Hodapp, 919 S.W.2d 240, 244 (Mo.banc 1996), which is the case the trial court had cited in the October 28 footnote purportedly resolving the issue on privilege. These inconsistencies, the fact that neither party presented argument to this court on the slander being privileged and the voluminous record made it impossible for this court to resolve the issue based on privilege leaving the constitutional question on HCQIA viable. Further, we note Dr. Delfino and O&MS argue HCQIA should provide immunity to them, which also keeps the issue of HCQIA's constitutionality viable. Therefore, as we lack jurisdiction, the case is ordered transferred to the Supreme Court of Missouri pursuant to Mo. Const. Art. 5, Sec. 11. Footnotes; FN1.Jointly, respondents will be referred to as "defendants." FN2.Even the trial court stated in a footnote that it "entertains grave doubts that the HCQIA is constitutional." See 10/28/97 Order and Partial Judgment, FN3. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.