Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McGinnis v. United States

United States District Court, W.D. Missouri, Western Division

January 31, 2017

JERRY DEAN MCGINNIS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER AND OPINION (1) GRANTING DEFENDANT'S MOTION TO STRIKE, AND (2) DENYING DEFENDANT'S MOTION TO DISMISS

          ORTRIE D. SMITH, SENIOR JUDGE

         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.

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.