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Austin v. Schiro

Court of Appeals of Missouri, Western District, First Division

May 26, 2015

STEVE AUSTIN, Appellant,
v.
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.

OPINION

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.

Page 695

Background

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.[1] 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,[2] Austin alleged that Schiro " was negligent in . . . failing to timely order an orthopedic consult to have [Austin's] arms examined by an orthopedic surgeon." [3]

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. ...


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