United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Corizon Defendants'
motion to dismiss Count IV of Plaintiff's second amended
complaint. ECF No. 147. For the reasons set forth below, the
motion will be granted.
an inmate in the custody of the Missouri Department of
Corrections, filed this action under 42 U.S.C. § 1983
alleging that he was denied adequate medical care and
subjected to excessive force during hospital transport in
connection with reconstructive spinal surgery in February
2017. In Count IV of his second amended complaint, filed
April 11, 2018, Plaintiff invokes the Court's
supplemental jurisdiction and asserts a state law claim of
negligence for various alleged acts and omissions by Corizon
and numerous health care providers (the “Corizon
Defendants”). On April 5, 2019, the Corizon Defendants
filed the present motion to dismiss on the basis that
Plaintiff failed to file, within 90 days of his complaint, a
healthcare affidavit certifying the merit of his claim, as
required by Missouri Revised Statute §538.225.
statute states in pertinent part:
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.
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.
support of their motion to dismiss, the Corizon Defendants
cite Smith et al. v. Planned Parenthood, 225 F.R.D.
233 (E.D. Mo. 2004), holding that the statute applies to
state law tort claims brought in federal court and relating
to the provision of health care services.
response, Plaintiff contends that Count IV can be construed
to raise claims of ordinary negligence (as opposed to medical
negligence), so §538.225 does not apply. Newland v.
Azan, 957 S.W.2d 377 (Mo. App. W.D. 1997) (sexual
assault by dentist not related to professional service). The
Court does not find Plaintiff's position or precedent
persuasive in the present case. Rather, the Court finds
guidance in Wann v. St. Francois County, Missouri,
4:15 CV 895 CDP, 2016 WL 3348408, at *2 (E.D. Mo. June 16,
2016), aff'd sub nom. Wann v. St. Francois County,
Missouri, 698 Fed.Appx. 857 (8th Cir. 2017). There, the
Court explained that the central question is whether the
relationship between the parties is one of health care
provider and patient and whether the “true claim”
relates solely to the provision of health care services,
regardless of how it is characterized. Id. Through
that lens, the Court concluded that an affidavit was required
with respect to the health care provider defendants but not
with respect to a social worker. Id. at *3-4.
See also, Winn v. Cardinal Glennon Hosp.,
4:19-CV-1404-SPM, 2019 WL 4194440, at *4 (E.D. Mo. Sept. 4,
2019) (granting pro se plaintiff additional time within
statutory maximum). Here, as in Wann, it is clear
from the face of Plaintiff's complaint that
Plaintiff's relationship to the Corizon Defendants is one
of health care provider and patient, and his true claim
relates solely to their provision of health care services.
further asserts that he is not required to satisfy the
statute because his negligence claim is intertwined with his
§1983 claim. White v. Gammon, 2:04 CV 23 JCH,
2005 WL 3079043, at *3 (E.D. Mo. Nov. 16, 2005) (pro se
plaintiff not required to file health care affidavit where
claim appeared to invoke §1983, not common law tort).
But, unlike White, Plaintiff's claim expressly
invokes the Court's supplemental jurisdiction over a
state law negligence claim.
the state statute applies, and the maximum time to file the
affidavit has passed. As such, the Court must dismiss without
prejudice Count IV of Plaintiff's complaint.
IT IS HEREBY ORDERED that the Corizon
Defendants' motion is GRANTED. ECF No.
147. Count IV of Plaintiff s second ...