McGinnis v. United States of America

Filing 13

ORDER AND OPINION (1) GRANTING DEFENDANT'S MOTION TO STRIKE, AND (2) DENYING DEFENDANT'S MOTION TO DISMISS, 6 . Signed on 1/31/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea) Modified on 1/31/2017 to correct judge's name.(Matthes Mitra, Renea).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JERRY DEAN MCGINNIS,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 16-01135-CV-W-ODS

ORDER AND OPINION (1) GRANTING DEFENDANT’S MOTION TO STRIKE,
AND (2) DENYING DEFENDANT’S MOTION TO DISMISS
Pending are Defendant’s Motion to Dismiss, and Defendant’s Motion to Strike.
Doc. #6. For the following reasons, Defendant’s Motion to Strike is granted, and
Defendant’s Motion to Dismiss is denied.

I.

BACKGROUND

On October 21, 2016, Plaintiff filed this matter alleging claims under the Federal
Tort Claims Act (“FTCA”). Doc. #1. In his Complaint, Plaintiff seeks damages for
personal injuries allegedly resulting from Defendant’s rendering of or failure to render
health care services. Id., ¶¶ 15-35. On that same day, Plaintiff filed an Affidavit of Merit
(“First Affidavit of Merit”). Doc. #2. Therein, Plaintiff’s counsel swore under oath he
“obtained the written opinion of a legally qualified health care provider which states that
the health care providers employed by…Defendant who provided care and treatment to
the Plaintiff…failed to use such care as a reasonably prudent and careful health care
provider would have under similar circumstances….” Id., at 1. Plaintiff’s counsel
identified Ahmad Batrash, M.D., as the legally qualified health care provider who
rendered the written opinion. Id.
On January 6, 2017, Defendant moved to strike the First Affidavit of Merit and
asked the Court to dismiss Plaintiff’s Complaint because he failed to comply with
section 538.225.6 of the Missouri Revised Statutes. Doc. #6. On January 16, 2017,
Plaintiff filed a new Affidavit of Merit (“Second Affidavit of Merit”). Doc. #9. Therein,

Plaintiff’s counsel declared he obtained the written opinion of Bradley L. Freilich, M.D.,
who stated the health care providers employed by Defendant “failed to use such care as
a reasonably prudent and careful health care provider would have under similar
circumstances….” Id., at 1. Plaintiff opposes Defendant’s motions, which are now ripe
for consideration.

II.

DISCUSSION

As to Defendant’s liability under the FTCA, Missouri substantive tort and medical
malpractice law applies. 28 U.S.C. §§ 1346(b)(1), 2674. The parties agree Plaintiff
must comply with Missouri law, including the health care affidavit requirement set forth
in section 538.225 of the Missouri Revised Statutes. Doc. #6, at 1; Doc. #10, at 2. The
relevant portions of that statute provide:
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 reasonable care directly caused or directly
contributed to cause the damages claimed in the petition.
2. As used in this section, the term “legally qualified health care provider”
shall mean a health care provider licensed in this state or any other state
in the same profession as the defendant and either actively practicing or
within five years of retirement from actively practicing substantially the
same specialty as the defendant.
3. The affidavit shall state the name, address, and qualifications of such
health care providers to offer such opinion.
4. A separate affidavit shall be filed for each defendant named in the
petition.
5. 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.
6. If 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.
2

Mo. Rev. Stat. § 538.225(1-6) (2015). Affidavits of merit must meet these statutory
requirements. See e.g., Mayes v. Saint Luke’s Hosp. of Kan. City, 430 S.W.3d 260,
271-72 (Mo. banc 2014); see also State ex rel. Farley v. Jamison, 346 S.W.3d 397, 400
(Mo. Ct. App. 2011). Defendant contends Plaintiff’s First Affidavit of Merit does not
comply with section 538.225 and must be stricken. Plaintiff argues the affidavit
complies with the statutory requirements. Doc. #10, at 3-5.
Dr. Batrash is employed by Defendant at the Kansas City Veteran Affairs Medical
Center (“Medical Center”), which is the entity at the source of Plaintiff’s FTCA claims.
Doc. #1; Doc. #6-1, at ¶¶ 4-12. Dr. Batrash, who executed a declaration that was
attached to Defendant’s motion, stated he never provided a written opinion about
Defendant’s employees (which would include him) failing to comply with the standard of
care. Doc. #6-1, ¶¶ 9-13. In fact, Dr. Batrash never provided any written opinion to
Plaintiff’s counsel. Id., ¶ 14. At most, Dr. Batrash entered a note in Plaintiff’s medical
records on October 7, 2015, indicating he had a conversation with other Medical Center
health care providers and members of Plaintiff’s family to discuss Plaintiff’s care. Id., ¶¶
11-12.
This October 7, 2015 note was attached to Plaintiff’s Complaint. Doc. #1-1, at
11-12; Doc. #1-2, at 1-2. Plaintiff acknowledges this note is the “written opinion” by Dr.
Batrash identified in the First Affidavit of Merit. Doc. #10, at 7. The note is entitled
“Institutional Disclosure of Adverse Event.” Doc. #1-1, at 11. It indicates Plaintiff’s liver
cancer “clearly should have been diagnosed earlier,” and the “root causes of this
medical error” are being investigated. Id. Plaintiff argues this note satisfies the section
538.225 requirements.
The note, however, does not state the “health care provider failed to use such
care as a reasonably prudent and careful health care provider would have under similar
circumstances.” Id., at 11-12. In addition, the note does not maintain the health care
provider’s actions “directly caused or directly contributed to cause the damages
claimed” in Plaintiff’s Complaint. Id. Moreover, the note does not establish Dr. Batrash
is a “legally qualified health care provider” as statutorily defined. Id.
Plaintiff has not cited any cases suggesting a doctor’s note contained in medical
records qualifies as a “written opinion” under the statute. Neither has Plaintiff cited any
3

cases establishing his First Affidavit of Merit, which is based upon the doctor’s notation,
satisfies the statutory requirements. The Court finds Plaintiff’s First Affidavit of Merit
does not satisfy the requirements of section 538.225. Accordingly, Defendant’s Motion
to Strike the First Affidavit of Merit is granted.
Also pending is Defendant’s Motion to Dismiss based upon Plaintiff’s First
Affidavit of Merit failing to comply with section 538.225. After Defendant filed its
motions, Plaintiff filed his Second Affidavit of Merit. Doc. #9. The Second Affidavit of
Merit was filed within 90 days of Plaintiff commencing this lawsuit, and otherwise
appears to comply with section 538.225. In light of Plaintiff’s Second Affidavit of Merit,
Defendant’s motion to dismiss is denied at this time.

III.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Strike is granted. Document
#2 is stricken. Defendant’s Motion to Dismiss is denied.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: January 31, 2017

4