Court of Appeals of Missouri, Western District, First Division
May 26, 2015
STEVE AUSTIN, Appellant,
JOHN SCHIRO, M.D., Respondent
Appeal from the Circuit Court of Clinton County, Missouri. The Honorable Richard Brent Elliott, Judge.
Jonathan McCoy, Kansas City, MO, Counsel for Appellant.
Lloyd Bandy, Jr., Kansas City, MO, Counsel for Respondent.
Bradley Dowd, Kansas City, MO, Co-Counsel for Respondent.
Before Division One: James Edward Welsh, P.J., Thomas H. Newton, and Karen King Mitchell, JJ. All concur.
James Edward Welsh, Presiding Judge
Steve Austin appeals the circuit court's judgment dismissing his medical malpractice action against John Schiro, M.D. Finding no error in the judgment, we affirm.
Steve Austin initially filed this medical negligence case in July 2009 in Clay County. In his original petition, Austin alleged that on July 9, 2007, he injured both forearms in an on-the-job accident. He sought medical care at Cameron Regional Medical Center in Clinton County, where he was evaluated and referred to North Kansas City Hospital in Clay County. At North Kansas City Hospital, Austin was evaluated by emergency physician Steven Russell, M.D. Austin then sought treatment on July 18, 2007, from John Schiro, M.D., a physician in Cameron, who diagnosed him with significant muscle strain and rupture of the " muscle bundles." Austin alleged that when he returned to Schiro's office on July 26th, Schiro stated that he would arrange for Austin to be seen by an orthopedic surgeon but then failed to timely do so. The original petition sought damages for alleged negligent treatment from both Russell and Schiro.
In April 2010, Schiro filed a motion to dismiss based on Austin's failure to file an affidavit of merit (or " health care affidavit" ), as required by section 538.225, RSMo. Prior to the court's ruling on Schiro's motion, Austin voluntarily dismissed his lawsuit.
Nearly one year later, on June 14, 2011, Austin filed a second lawsuit in Clay County against Schiro and Russell. Austin's second petition was essentially the same as his first. It alleged (1) that Austin injured his arms while working at a construction site, (2) that he presented to Schiro's office within nine days of the injury, (3) that Schiro diagnosed possible torn biceps and determined that Austin needed surgery, and (4) that Schiro told Austin that he would refer him to an orthopedic surgeon but then failed to timely do so. Although he eventually was examined by an orthopedic surgeon, Austin alleged that Schiro " was negligent in . . . failing to timely order an orthopedic consult to have [Austin's] arms examined by an orthopedic surgeon." 
On September 12, 2011, ninety days after his second petition was filed, Austin's counsel filed a motion to extend the time for filing a health care affidavit. The motion stated that counsel had " received an initial opinion from a medical doctor that the defendant was negligent and was consulting with experts who qualified under the statute to obtain the written report." There is no indication in the record that the motion was ever brought before the circuit court for a hearing or that the court ever entered an order granting an extension of time to file. Nevertheless, on December 9, 2011, Austin filed a section 538.225 affidavit as to Schiro. He did not file an affidavit as to Russell.
On June 24, 2013, Schiro filed a motion to dismiss Russell as a defendant (due to the lack of a section 538.225 affidavit as to Russell) and a motion to transfer venue to Clinton County. Following a hearing, the circuit court granted both motions.
On August 29, 2014, Schiro filed a motion to dismiss Austin's petition in the Clinton County Circuit Court on the basis that Austin did not comply with section 538.225. Schiro argued (1) that the doctor identified in Austin's affidavit was not a " legally qualified health care provider" who is " actively practicing the same specialty" as Schiro, and (2) that Austin failed to timely file his affidavit. Regarding the timeliness issue, Schiro argued:
Absent a ruling by the court granting plaintiff an additional ninety days in which to file the required affidavit, plaintiff was obligated to file an affidavit within ninety days after his lawsuit was filed, and the failure to do so is grounds for dismissal of plaintiff's second lawsuit.
The circuit court held a hearing on Schiro's motion to dismiss in September 2014. The circuit court ultimately sustained Schiro's motion and issued its Judgment dismissing Austin's second lawsuit without prejudice. Austin appeals.
Standard of Review
A dismissal without prejudice for failure to comply with section 538.225 is an appealable judgment. Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683, 686 n. 4 (Mo. banc 2010). We review the circuit court's grant of a motion to dismiss de novo and will affirm if we find that the motion is sustainable on any ground alleged in the motion. Howard v. SSM St. Charles Clinic Med. Group, Inc., 364 S.W.3d 242, 244 (Mo. App. 2012). Whether a health care affidavit complies with section 538.225 is a question of law which this court reviews de novo. Kreutz v. Curators of the Univ. of Mo., 363 S.W.3d 61, 63 (Mo. App. 2011).
Austin raises two points on appeal. We find the second point to be dispositive. In it, Austin contends that the circuit court erred in dismissing his petition for failure to timely comply with section 538.225, Missouri's Health Care Affidavit statute. He asserts that, despite the court's failure to rule on his motion for an extension of time to file the affidavit, he nevertheless timely filed the motion, established good cause for doing so, and then filed his health care affidavit within ninety days of that motion, " as authorized by statute."  Austin claims, therefore, that the circuit court's dismissal should be reversed and remanded.
We disagree. Austin's claim of negligent care by a health care provider is governed by Chapter 538 of the Revised Statutes of Missouri. Section 538.225 provides, in relevant part, that the plaintiff in any medical malpractice action must file an affidavit " stating that he . . . has obtained the written opinion of a legally qualified
health care provider which states that the defendant . . . failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure . . . directly caused or directly contributed to cause the damages claimed in the petition." § 538.225.1. Subsection .5 of the statute requires the affidavit to 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." § 538.225.5 (emphasis added).
Here, Austin failed to obtain an extension of time from the court allowing him to file the required health care affidavit more than ninety days after filing his second petition. As Austin acknowledges, neither he nor his attorney filed the required affidavit within ninety days after filing his petition. Instead, on September 12, 2011, ninety days after filing the petition, Austin filed a motion for extension of time to file the affidavit. Although Austin filed a timely motion for an extension of time and set forth his " cause" for requesting the extension, he did not present the motion to the court or obtain an order from the court granting him an additional ninety days in which to file an affidavit as required by section 538.225.
As our Supreme Court has explained, the language of section 538.225 is " unambiguous and mandatory," and there is no statute requiring that it be liberally construed. Mayes v. St. Luke's Hosp. of Kansas City, 430 S.W.3d 260, 271 (Mo. banc 2014). Since 2005, the statute has provided that, upon the motion of any party, the court " shall" dismiss the action if
the plaintiff fails to file an affidavit. Id. " When a statute mandates that something . . . 'shall' occur and also provides what results 'shall' follow a failure to comply with the statute, it is clear that it is mandatory and must be obeyed." SSM Health Care St. Louis v. Schneider, 229 S.W.3d 279, 281 (Mo. App. 2007). As explained in Mayes, the language of section 538.225, " both in terms of directing a plaintiff to file an affidavit and directing the court to dismiss the action if an affidavit is not filed, demonstrates that the legislature intended the requirement that a plaintiff file an affidavit with the court be mandatory." 430 S.W.3d at 271-72. See also White v. Tariq, 299 S.W.3d 1, 4-5 (Mo. App. 2009) (holding that section 538.225 " is clear and unambiguous" that if " a statutorily adequate health care affidavit has not been timely filed, the trial court must dismiss the complaint without prejudice" ); Schneider, 229 S.W.3d at 281 (holding that " [t]he plain and ordinary meaning [of § 538.225] is that if . . . a statutorily adequate health care affidavit has not been timely filed, the trial court must dismiss the complaint without prejudice" ).
In light of the foregoing authorities, the circuit court did not err in dismissing Austin's petition. Moreover, although Austin seeks to persuade us that his affidavit sufficiently complied with section 538.225 because his motion established " good cause" for granting an extension, it is the circuit court, not the plaintiff, who makes that determination. Here, the circuit court was never given an opportunity to determine whether plaintiff had shown good cause to extend the time for filing an affidavit. Austin acknowledges in his brief that " the trial court did not explicitly rule on the motion to extend." Absent such an order, Austin was required to file an affidavit within ninety days after his lawsuit was filed. See Howard, 364 S.W.3d at 243-45.
In Howard, as in this case, the plaintiff filed a medical negligence lawsuit but failed to file a timely health care affidavit. Id. at 243. The plaintiff subsequently filed a motion for additional time to file the affidavit but did not obtain an order from the court granting the extension. Id. The circuit court granted the defendant's motion to dismiss for failure to comply with section 538.225. Id. at 244. The appellate court affirmed, finding " no evidence on the record that the trial court ruled on such motion." Id. at 243. The court explained:
Plaintiff was required to file a health care affidavit ninety days from the date he filed his petition. While the statute provides that this time may be extended for a period of up to an additional ninety days, it only does so when " the court, for good cause shown, orders that such time be extended." The record here provides no evidence that the trial court ordered such time be extended for good cause.
Id. at 245 (internal citations omitted). The Howard court concluded that, because the " [p]laintiff's affidavit was not timely filed within an extension of time granted for good cause shown" and the defendants " filed a motion to strike alleging that the affidavits were untimely," under section 538.225.6, the circuit court " was required
[to] dismiss [p]laintiff's petition without prejudice." Id.
Here, as in the Howard case, there is no evidence in the record that the circuit court entered an order granting Austin's motion for additional time. Thus, as in Howard, the decision to dismiss without prejudice was required by the plain language of section 538.225. The circuit court did not err in granting Schiro's motion to dismiss.
Based on the foregoing, we affirm the circuit court's judgment dismissing the petition.