United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT, AND (2) DENYING AS MOOT DEFENDANT'S
MOTION TO STRIKE EXPERT
D. SMITH, SENIOR JUDGE
are Defendant's Motion for Summary Judgment (Doc. #35)
and Defendant's Motion to Strike Plaintiff's
Designated Expert, Donald R. Frey, M.D. (Doc. #37).
Defendant's summary judgment motion is granted, and
Defendant's motion to strike is denied as moot.
2003, Defendant Dr. Julia Alvarez-Gomez became Plaintiff
Ramona Riley's primary care physician. Doc. #36, at 2;
Doc. #42, at 5; Doc. #50, at 2. On October 16, 2012,
Plaintiff's lab work showed elevated levels of serum
creatinine, a measure of kidney function. Doc. #36, at 2;
Doc. #42-5, at 22. Defendant referred Plaintiff to a
nephrologist, Dr. Thomas. Id. Plaintiff first met
with Dr. Thomas on November 13, 2012, and he diagnosed her
with stage III kidney disease. Doc. #36, at 2; Doc. #42-5, at
40-42. According to Defendant, she deferred all treatment of
Plaintiff's kidneys to Dr. Thomas at that point. Doc.
#36-4, at 2-3. From November 2012 through January 2014,
Defendant received periodic reports from Dr. Thomas regarding
his treatment of Plaintiff's kidney disease. Doc. #42, at
5-6; Doc. #42-5, at 26-42; Doc. #50, at 2.
was not seen by Defendant from October 2012 (when Defendant
referred Plaintiff to the nephrologist), through November
2013, when she was seen for head congestion and cough. Doc.
#42, at 7; Doc. #42-5, at 20-21; Doc. #50, at 2. During this
time, Defendant prescribed and refilled medications for
Plaintiff, ordered bloodwork, and ordered a mammogram. Doc.
#42, at 6; Doc. #42-5, at 4-18, 22, 45-46; Doc. #50, at 2.
After November 25, 2013, there is no record establishing
Plaintiff was seen by Defendant again. But from November 2013
through June 2014, Defendant continued to prescribe
medications and order bloodwork. Doc. #42, at 7; Doc. #42-5,
at 3, 19; Doc. #50, at 3. There is no record of any action
taken by Defendant regarding Plaintiff's medical care
after June 2014.
filed a medical malpractice lawsuit against Defendant on
April 28, 2015, in the Circuit Court of Jackson County,
Missouri. Doc. #42-9. Plaintiff voluntarily dismissed that
lawsuit on July 21, 2015. Doc. #42-10. Plaintiff refiled her
lawsuit on November 11, 2015, in the Circuit Court of Jackson
County, Missouri. Doc. #1-2. Plaintiff alleges Defendant
failed to diagnose her kidney failure, failed to treat her
kidney failure, or failed to refer Plaintiff to a specialist.
Doc. #1-2, ¶ 6. On November 30, 2015, Defendant removed
the lawsuit to this Court. Doc. #1.
now seeks summary judgment on Plaintiff's claims because
they are barred by the statute of limitations, and Plaintiff
cannot establish a submissible case of medical malpractice.
Defendant also seeks to strike Plaintiff's expert
witness. Plaintiff opposes both motions, which are now ripe
moving party is entitled to summary judgment on a claim only
if there is a showing that “there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Williams v. City
of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986).
“[W]hile the materiality determination rests on the
substantive law, it is the substantive law's
identification of which facts are critical and which facts
are irrelevant that governs.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Wierman v.
Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir.
2011) (quotation omitted). In applying this standard, the
Court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of all
inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744
F.2d 653, 655 (8th Cir. 1984). However, a party opposing a
motion for summary judgment “may not rest upon the mere
allegations or denials of the… pleadings, but…
by affidavits or as otherwise provided in [Rule 56], must set
forth specific facts showing that there is a genuine issue
for trial.” Fed.R.Civ.P. 56(e).
argues she is entitled to summary judgment on Plaintiff's
claims because they are barred by the statute of limitations.
Under Missouri law, which the parties agree applies in this
diversity action, a patient must bring a medical malpractice
lawsuit “within two years from the date of occurrence
of the act of neglect complained of.” Mo. Rev. Stat.
§ 516.105. Plaintiff alleges Defendant failed to
diagnose her kidney failure, failed to treat her kidney
failure, or failed to refer Plaintiff to a specialist. Doc.
#1-2, ¶ 6. In a failure to diagnose case, the cause of
action accrues the date before the diagnosis is made.
Swallows v. G. Wendell Weathers, D.D.S., P.C., 915
S.W.2d 763, 764 (Mo. banc 1996).
referred Plaintiff to a specialist in October 2012. On
November 13, 2012, Plaintiff was seen by the specialist,
diagnosed with stage III kidney disease, and began treatment
with the specialist. Doc. #42-5, at 40-42. Plaintiff's
claims arose, at the latest, on November 12, 2012. But she
waited until April 28, 2015, to file her lawsuit against
Defendant. Doc. #42-9. Because she waited more than
two years, Plaintiff's claims are barred by the statute
of limitations, entitling Defendant to summary judgment on
attempts to avoid summary judgment by arguing the continuing
care exception to the medical malpractice statute of
limitations applies. “The continuing care exception
provides that the statute begins to run when the defendant
ceases to treat the injury caused by the act of negligence
and neglect.” Brickey v. Concerned Care of the
Midwest, Inc., 988 S.W.2d 592, 597 (Mo.Ct.App. 1999)
(citation omitted). This exception applies when “the
treatment is continuing and of such nature as to charge the
[physician] with the duty of continuing care and treatment
which is essential to recovery.” Thatcher v. De
Tar, 173 S.W.2d 760, 762 (Mo. 1943); see also
Kamerick v. Dorman, 907 S.W.2d 264, 265 (Mo.Ct.App.
1995). When a medical provider ceases treatment of the injury
caused by his or her act of negligence, the continuing care
doctrine does not apply. Brickey, 988 S.W.2d at 598
(citation omitted) (finding the medical care provider did not
continue care of the injury allegedly caused by its
negligence, and thus, the continuing care exception did not
Defendant ceased treatment of Plaintiff's kidney disease
once Plaintiff was referred to a specialist and began
treatment with that specialist. Defendant received periodic
reports from the nephrologist about Plaintiff's
treatment. But Plaintiff has not cited to (and the Court has
been unable to locate) any case finding receipt of treatment
notes from another physician equates to continued care for
the condition being treated by the specialist. In addition,
Plaintiff has failed to cite to (and the Court has been
unable to find) anything in the record establishing Defendant
provided care to Plaintiff after November 12, ...