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Caplinger v. Rahman

Court of Appeals of Missouri, Southern District

August 14, 2017

PATRICIA CAPLINGER, Appellant,
v.
SALIM RAHMAN, M.D. and SALIM RAHMAN, M.D., L.L.C., Respondents.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason R. Brown, Judge.

          DANIEL E. SCOTT, J.

         A medical malpractice plaintiff must obtain an opinion of merit from a "legally qualified health care provider, " then file timely notice thereof by affidavit, all in accordance with § 538.225 procedure.[1] The statute offers an opportunity to overcome opinion deficiencies (subsection 7), but the notice requirement (subsection 6) is strictly construed. Unless a compliant affidavit is timely filed, the case must be dismissed without prejudice. See, e.g., Lang v. Goldsworthy, 470 S.W.3d 748 (Mo. banc 2015); Mayes v. Saint Luke's Hosp., 430 S.W.3d 260 (Mo. banc 2014); Austin v. Schiro, 466 S.W.3d 694 (Mo.App. 2015).

         Plaintiff's attorney obtained an opinion from Dr. Ronnie Keith and timely filed a notice affidavit in statutory form.[2] Upon Defendant's motion, the trial court reviewed the opinion and considered further evidence from Plaintiff, found that Dr. Keith did not practice substantially the same specialty as Defendant (subsection 2), deemed this a subsection 6 affidavit defect, and dismissed the case without prejudice because the notice deadline had passed.

         Plaintiff appeals, complaining that Dr. Keith did practice substantially the same specialty as Defendant, but if not, subsection 7 governed and did not mandate dismissal.[3]

         Our review is de novo. Austin, 466 S.W.3d at 696. We deny Plaintiff's first complaint, but agree with the second and decline to follow Kreutz v. Curators of Univ. of Missouri, 363 S.W.3d 61 (Mo.App. 2011), to the extent it suggests otherwise. We reverse the judgment of dismissal and remand for further proceedings.

         The Statute

         Section 538.225's first five subsections establish two requisites for maintaining a medical malpractice action. In temporal order, these are:

1. An expert opinion that meets four requirements set by subsection 1:
• a written opinion,
• of a legally qualified health care provider (defined in subsection 2),
• that the defendant was negligent, and
• such negligence proximately caused the plaintiff's alleged damages.
2. Timely sworn notice that meets the form and timing requirements of subsections 1 and 3-5:
• an affidavit by the plaintiff or the plaintiff's attorney,
• stating that he or she has obtained the aforesaid opinion,
• and the expert's name, address, and qualifications to offer such opinion,
• filed with the court within 90 days after the petition or a court-granted extension of up to 90 additional days.

         Subsection 6 governs affidavit violations and mandates dismissal without prejudice if the notice deadline has passed.

         Finally, under subsection 7, which "governs when the alleged error is the expert's written opinion, "[4]

if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one or more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant.

§ 538.225.7. If the court finds no such probable cause, it must dismiss the case. Id.

         "Substantially the Same ...


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