Hicks v. Denenny et al

Filing 24

ORDER granting 22 motion to dismiss case. Signed on 5/11/2016 by Magistrate Judge John T. Maughmer. (Alexander, Pam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
Richard P. Hicks,
Plaintiff,
v.
Dr. David M. Denenny and
Ozarks Medical Center,
Defendants.

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) Case No. 15-801-CV-W-JTM
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ORDER OF DISMISSAL
Pending before the Court is Defendants Ozarks Medical Center and David M. Denenny,
M.D.’s Motion to Dismiss Plaintiff’s Lawsuit For Failure To Comply With Section 538.225
RSMO, filed April 12, 2016 [Doc. 22].
Richard P. Hicks (“Hicks”) filed this lawsuit against Defendants David M. Denenny and
Ozarks Medical Center (“Defendants”) on October 14, 2015, alleging that Defendants, as health
care providers, provided negligent medical care to him on or about October 14, 2013. The
applicable Missouri statute requires:
"[i]n 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,'' a plaintiff must file an affidavit stating
that he 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."
MO. REV. STAT §538.225.1.

Chapter 538 further requires that the affidavit:
shall 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.
Hicks did not file the required affidavit within ninety days of October 14, 2015, nor request
an additional 90 days to do so. Moreover, even if he had requested and been granted such an
extension, it would have expired by now and no affidavit has been filed. With regard to the
implications of Hicks’ failure to file the affidavit, Chapter 538 expressly states:
[i]f the plaintiff or his attorney fails to file such affidavit the court
shall, upon motion of any party, dismiss the action against such
moving party without prejudice.
MO. REV. STAT §538.225.6 (emphasis added). Both Missouri and federal case law indicate that
strict compliance with Section 538.225 is mandatory. Mayes v.St. Luke's Hospital of Kansas City,
430 S.W. 3d 260, 271(Mo.2014) ("the language regarding the affidavit requirement is
unambiguous and mandatory"); Sillyman v. Barbe, 423 S.W.3d 304, 306-07 (Mo. App. 2014) (the
language of section 538.225 is "unambiguous," and the trial court properly dismissed plaintiffs’
lawsuit because plaintiffs’ affidavit did not contain the information required by the statute); see
also, Smith v. Planned Parenthood of St. Louis Region, 225 F.R.D. 233, 239 (E.D. Mo. 2004)
(holding that Section 538.225 does not conflict with the Federal Rules); Davis v. St. Louis County,
Mo., 2015 WL 758218 *3 (E.D. Mo. 2015) (noting that the Section 538.225.6 "requires the trial
court to dismiss the action without prejudice, upon motion of [a] party, if the plaintiff does not file
a health care affidavit. Upon a well·taken motion under the statute, dismissal is mandatory, not
discretionary") (internal citations and quoted case omitted); Schmidt v. Kemper, 2007 WL

1028927 *2 (W.D. Mo. 2007) (dismissing plaintiff’s state law medical negligence claims for
plaintiff’s failure to comply with Section 538.225).
Hicks was obligated to file the affidavit required by Section 538.225 within ninety days
after he filed his lawsuit or request an extension within that same period to file the required
affidavit. Hicks’ failure to do so requires that this case be dismissed without prejudice.
Accordingly, it is
ORDERED that Defendants Ozarks Medical Center and David M. Denenny, M.D.’s
Motion to Dismiss Plaintiff’s Lawsuit For Failure To Comply With Section 538.225 RSMO, filed
April 12, 2016 [Doc. 22] is GRANTED and this matter is dismissed without prejudice.

/s/ John T. Maughmer
John T. Maughmer
United States Magistrate Judge