Barton v. United States of America
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendant's motion to dismiss Plaintiff's complaint for failure to state a claim will be held in abeyance to give Plaintiff an extension of time up to and including October 13, 2017, to file a health care affidavit as required by Missouri law. If Plaintiff fails to do so, Defendant's motion to dismiss will be granted. (Response to Court due by 10/13/2017.). Signed by District Judge Audrey G. Fleissig on 8/8/2017. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Case No. 4:17CV01342 AFG
MEMORANDUM AND ORDER
This pro se matter is before the Court on the motion of Defendant to dismiss this
se medical malpractice case against the United States for failure to state a claim. For the
reasons set forth below, this motion will be held in abeyance to give Plaintiff, who is
proceeding pro se, an extension of time up to and including October 13, 2017, to file a
health care affidavit as required by Missouri law.
Plaintiff filed his complaint on April 17, 2017, alleging that on November 15,
2012, he fell as he was walking to the restroom from his hospital recovery room after
shoulder surgery at the John Cochran Veteran Affairs (“VA”) Hospital in St. Louis,
Missouri, and that the VA medical providers did not adequately treat his injuries from the
fall. He seeks compensatory and punitive damages. By letter to the Court dated July 17,
2017 (filed on July 18, 2017), Plaintiff states, “Because of my financial limitation, I have
not been able to seek a personal doctor.” ECF No. 10.
The present motion to dismiss was filed on July 18, 2017. The government notes
that although Plaintiff does not cite to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346(b), the complaint is properly construed as one brought pursuant to that statute.
The government argues that the complaint must be dismissed because Plaintiff did not
file, within 90 days of filing his complaint, an affidavit attesting that he has obtained the
written opinion of a health care provider which states that the government was negligent
and this caused his damages, as required by Missouri Revised Statute § 538.225, which is
applicable to this action. 1 Plaintiff did not respond to the motion to dismiss within the
time allowed for a response, and no health care affidavit has been filed.
For a plaintiff to survive a motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. The reviewing court must accept the
plaintiff’s factual allegations as true and construe them in the plaintiff’s favor, but the
court is not required to accept the legal conclusions the plaintiff draws from the facts
The government states that on June 17, 2017, it called Plaintiff and sent him a letter
informing him about the health care provider affidavit requirement, and enclosed with the
letter a copy of Mo. Rev. Stat. § 538.225. A copy of the letter the government asserts it
sent is attached to the government’s memorandum in support of the motion to dismiss.
The letter states that if Plaintiff did not file a health care affidavit by July 17, 2017, the
government was planning to file a motion to dismiss Plaintiff’s action for failing to
comply with § 538.225. (EFC No. 9-1.)
alleged. Id.; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766,
768-69 (8th Cir. 2012).
The FTCA is a limited waiver of sovereign immunity in which the United States
consents to being sued with regard to the following claims:
injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or
28 U.S.C. § 1346(b)(1)(emphasis added).
Missouri law requires a plaintiff in a medical malpractice action to file a health
care affidavit. Specifically, Mo. Rev. Stat. § 538.225.1 states:
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 reasonable care directly caused or directly contributed to cause
the damages claimed in the petition.
The affidavit must be filed “no later than ninety days after the filing of the petition unless
the court, for good cause shown, orders that such time be extended for a period of time
not to exceed an additional ninety days.” Mo. Rev. Stat. § 538.225.5.
This Court has consistently dismissed FTCA medical malpractice claims for
failure to state a claim upon which relief can be granted where the plaintiff failed to file a
health care affidavit required by Missouri law. See Thake v. United States, No.
4:08CV653TIA, 2009 WL 801618, at *3-*5 (E.D. Mo. Mar. 25, 2009); Brown v. Luckett,
No. 407CV00703ERW, 2007 WL 2245830, at *4-*6 (E.D. Mo. Aug. 1, 2007).
Plaintiff’s pro se status does not excuse him from complying with the requirements of
§ 538.225.1. See, e.g., Barraza v. Magna Int’l Inc., No. 4:16-CV-00823-FJG, 2017 WL
2838200, at *3 (W.D. Mo. June 30, 2017).
As quoted above, however, § 538.225.5 allows the Court to grant, for good cause
shown, an extension of up to 90 days to file the health care affidavit. Courts have held
that while financial inability to obtain a professional opinion would not excuse a plaintiff
from compliance with the statute, it could constitute good cause for an extension of time.
Smith v. Planned Parenthood of St. Louis Region, 225 F.R.D. 233, 242 (E.D. Mo. 2004).
Here, in light of Plaintiff’s statement that he could not afford “to seek a personal doctor,”
the Court will grant Plaintiff an extension of time to comply with § 538.225.5. The
maximum extension allowable would be 90 days after the affidavit was due. See Brown
v. Luckett, No 4:07CV00703, at *6 (E.D. Mo. Aug. 1, 2007).
IT IS HEREBY ORDERED that Defendant’s motion to dismiss Plaintiff’s
complaint for failure to state a claim will be held in abeyance to give Plaintiff an
extension of time up to and including October 13, 2017, to file a health care affidavit as
required by Missouri law. If Plaintiff fails to do so, Defendant’s motion to dismiss will
Dated this 8th day of August 2017.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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