Eikenbary v. USA

Filing 17

ORDER - Plaintiff's motion for extension of time 16 is denied. The Government's motion to dismiss 14 is granted. This action is hereby dismissed without prejudice. Signed on 11/9/16 by Chief District Judge Greg Kays. (Strodtman, Tracy) Modified on 11/9/2016 - Mailed to Plaintiff. (Strodtman, Tracy).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DONALD EIKENBARY,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 15-01003-CV-W-DGK

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
This case arises out of pro se Plaintiff Donald Eikenbary’s (“Plaintiff”) medical treatment
at a Veterans Health Administration hospital (“VA”) in Missouri. Plaintiff brings this action
under the Federal Tort Claims Act (“FTCA”), alleging medical malpractice in connection with a
procedure undergone at the VA.

Now before the Court are Defendant United States of

America’s (“the Government”) motion to dismiss Plaintiff’s complaint for failure to file a health
care affidavit, as required by Missouri Revised Statute § 538.225 (Doc. 14) and Plaintiff’s
motion for extension of time to obtain this affidavit (Doc. 16).
The FTCA provides a “limited waiver of the United States’ sovereign immunity” for tort
claims. Molzof v. United States, 502 U.S. 301, 305 (1992). Under the FTCA, the Government
may be held liable “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 omission
occurred.” 28 U.S.C. § 1346. Plaintiff does not dispute that his medical malpractice claims
arose in Missouri, and so the Court looks to the laws of Missouri.
Under Missouri law, plaintiffs must file an affidavit attesting to the merits of any
personal injury action against a healthcare provider. Mo. Rev. Stat. § 538.225; see Doughty v.

Midwest Neurosurgeons, No. 1:16CV0002 ACL, 2016 WL 2622393, at *2 (E.D. Mo. May 9,
2016). “Such 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. Failure to file this affidavit
requires the court to dismiss the action without prejudice. Id. § 538.225.6.
Plaintiff filed his pro se complaint on December 29, 2015 (Doc. 1). Because Plaintiff
alleges that his medical treatment at the VA resulted in personal injury, he must file an affidavit
attesting that he has obtained a written expert opinion indicating the VA failed to use the
requisite duty of care. The deadline to file such an affidavit was March 28, 2016. Alternatively,
Plaintiff could have requested an additional ninety days from the filing of his petition—up to
June 26, 2016—to file the affidavit.1 However, to date, Plaintiff has failed to file the required
affidavit, and the Court must dismiss this action without prejudice. Mo. Rev. Stat. § 538.225.6.
Accordingly, Plaintiff’s motion for extension of time (Doc. 16) is DENIED and the
Government’s motion to dismiss (Doc. 14) is GRANTED. This action is hereby DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED.
Date: November 9, 2016

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/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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Plaintiff’s instant motion was filed on October 24, 2016—almost four months after the June 26, 2016, maximum
extension date.