United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
pro se matter is before the Court on the motion of Defendant
to dismiss this se medical malpractice case against the
United States for failure to state a claim. For the reasons
set forth below, this motion will be held in abeyance to give
Plaintiff, who is proceeding pro se, an extension of time up
to and including October 13, 2017, to file a health care
affidavit as required by Missouri law.
filed his complaint on April 17, 2017, alleging that on
November 15, 2012, he fell as he was walking to the restroom
from his hospital recovery room after shoulder surgery at the
John Cochran Veteran Affairs ("VA") Hospital in St.
Louis, Missouri, and that the VA medical providers did not
adequately treat his injuries from the fall. He seeks
compensatory and punitive damages. By letter to the Court
dated July 17, 2017 (filed on July 18, 2017), Plaintiff
states, "Because of my financial limitation, I have not
been able to seek a personal doctor." ECF No. 10.
present motion to dismiss was filed on July 18, 2017. The
government notes that although Plaintiff does not cite to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346(b), the complaint is properly construed as one
brought pursuant to that statute. The government argues that
the complaint must be dismissed because Plaintiff did not
file, within 90 days of filing his complaint, an affidavit
attesting that he has obtained the written opinion of a
health care provider which states that the government was
negligent and this caused his damages, as required by
Missouri Revised Statute § 538.225, which is applicable
to this action. Plaintiff did not respond to the motion to
dismiss within the time allowed for a response, and no health
care affidavit has been filed.
plaintiff to survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. The reviewing
court must accept the plaintiff's factual allegations as
true and construe them in the plaintiff's favor, but the
court is not required to accept the legal conclusions the
plaintiff draws from the facts alleged. Id.;
Retro Television Network, Inc. v. Luken Commc'ns,
LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).
FTCA is a limited waiver of sovereign immunity in which the
United States consents to being sued with regard to the
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b)(1)(emphasis added).
law requires a plaintiff in a medical malpractice action to
file a health care affidavit. Specifically, Mo. Rev. Stat.
§ 538.225.1 states:
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.
affidavit must 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.” Mo.
Rev. Stat. § 538.225.5.
Court has consistently dismissed FTCA medical malpractice
claims for failure to state a claim upon which relief can be
granted where the plaintiff failed to file a health care
affidavit required by Missouri law. See Thake v. United
States, No. 4:08CV653TIA, 2009 WL 801618, at *3-*5 (E.D.
Mo. Mar. 25, 2009); Brown v. Luckett, No.
407CV00703ERW, 2007 WL 2245830, at *4-*6 (E.D. Mo. Aug. 1,
2007). Plaintiff's pro se status does not excuse him from
complying with the requirements of ...