Guile v. United States of America

Filing 30

ORDER IT IS HEREBY ORDERED 26 Second MOTION to Dismiss Case and Memorandum in Support filed by United States of America is denied. Signed by Honorable Jean C. Hamilton on 3/14/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

CLEORA I. GUILE,
Plaintiff(s),
vs.
UNITED STATES OF AMERICA,
Defendant(s).

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Case No. 2:11CV40 JCH

ORDER
This matter is before the Court on Defendant United States of America’s Second Motion to
Dismiss, filed February 22, 2012. (ECF No. 26). The motion is fully briefed and ready for
disposition.
Plaintiff Cleora Guile filed the instant suit against the United States of America on May 25,
2011. (ECF No. 1). In her First Amended Complaint, filed June 15, 2011, Plaintiff alleges she
suffered permanent injuries as a result of the negligent care she received from Dr. Timothy Herbst,
D.D.S. (ECF No. 5). Defendant filed its first Motion to Dismiss on August 23, 2011, claiming
Plaintiff’s Complaint must be dismissed (a) as untimely filed under the Federal Tort Claims Act, and
(b) for failure to produce a valid health care affidavit as required by Missouri Revised Statutes §
538.225. (ECF No. 10). In an Order entered September 21, 2011, the Court denied Defendant’s
motion without prejudice. (ECF No. 16). With respect to the health care affidavit, the Court
recognized Plaintiff’s failure to file the affidavit within the ninety day period prescribed by the statute.
The Court found good cause to extend the period for filing, however, and granted Plaintiff until
Monday, November 21, 2011, within which to file the affidavit required by Mo.Rev.Stat. § 538.225.
(Id.).

On September 30, 2011, Plaintiff filed an affidavit stating in relevant part as follows:
I have obtained the written opinion of a legally qualified health care provider:
Allen Sclaroff D.D.S., Diplomat-American Board of Oral and Maxillofacial
Surgery @ 1040 N. Mason, Suite 207, Creve Coeur, Missouri 63141 (314453-9705),
satisfying the requirements of showing that the defendant healthcare provider
failed to use such care as a reasonably prudent and careful health care
provider would have under similar circumstances and that such failure to use
such reasonable care directly caused or contributed to cause the damages
claimed in the petition.
(ECF No. 18).
As stated above, Defendant filed its Second Motion to Dismiss on February 22, 2012. (ECF
No. 26). In its motion, Defendant acknowledges that Plaintiff eventually filed the affidavit as required
by Missouri law. (Id., P. 4). Defendant nevertheless asserts Plaintiff’s Complaint must be dismissed,
as neither Dr. Sclaroff nor any other qualified health care provider has been retained by Plaintiff to
serve as an expert witness in this matter. (Id., P. 2). Defendant further maintains Plaintiff’s affidavit
misrepresents the role of Dr. Sclaroff, because “Dr. Sclaroff has not been retained as an expert by
Plaintiff nor has Dr. Sclaroff provided a written opinion stating that any medical provider breached
the standard of care or that any breach caused Plaintiff any damages.” (Id., P. 4).
Upon consideration, the Court finds Plaintiff has complied with the requirements of
Mo.Rev.Stat. § 538.225. Specifically, the Court notes Plaintiff’s affidavit complies with section one
of the statute, which states as follows:
1.

In any action against a health care provider for damages for personal injury or
death on account of the rendering of or failure to render health care services,
the plaintiff or the plaintiff’s attorney shall file an affidavit with the court
stating that he or she has obtained the written opinion of a legally qualified
health care provider which states that the defendant health care provider failed
to use such care as a reasonably prudent and careful health care provider
would have under similar circumstances and that such failure to use such

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reasonable care directly caused or directly contributed to cause the damages
claimed in the petition.
Plaintiff’s affidavit tracks the language of the statute, and thus fulfills its requirements. Furthermore,
while Defendant apparently now questions the veracity of the filed affidavit, the Court notes Section
538.225(7) provides a mechanism for contesting the underlying representations, as follows:
7.

Within one hundred eighty days after the filing of the petition, any defendant
may file a motion to have the court examine in camera the aforesaid opinion
and if the court determines that the opinion fails to meet the requirements of
this section, then the court shall conduct a hearing within thirty days to
determine whether there is probable cause to believe that one or more
qualified and competent health care providers will testify that the plaintiff was
injured due to medical negligence by a defendant. If the court finds that there
is no such probable cause, the court shall dismiss the petition....

Defendant did not file a motion requesting that the Court review Dr. Sclaroff’s alleged opinion, and
the time for doing so has now expired. Defendant’s Motion to Dismiss on the basis of Mo.Rev.Stat.
§ 538.225 must therefore be denied.
Accordingly,
IT IS HEREBY ORDERED that Defendant United States of America’s Second Motion to
Dismiss (ECF No. 26) is DENIED.

Dated this 14th day of March, 2012.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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