Eikenbary v. USA

MOTION to dismiss case for failure to file health care provider affidavit

W.D. Mo.October 7, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION DONALD EIKENBARY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) Case No. 15-01003-CV-W-DGK MOTION OF THE UNITED STATES TO DISMISS (With Supporting Suggestions Incorporated) Pursuant to FED. R. CIV. P. 12(b)(1), 12(b)(6), and MO. REV. STAT. ' 538.225, the United States of America hereby moves the Court to enter an order dismissing this medical malpractice lawsuit filed by pro se plaintiff Donald Eikenbary (“Eikenbary”) inasmuch as Eikenbary has failed to filed the health care provider affidavit required by MO. REV. STAT. ' 538.225. It is axiomatic that the United States, as a sovereign, is immune from suit unless it waives its immunity and consents to be sued. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368 (1990). The sovereign immunity of the United States generally prevents individuals injured by negligent acts of federal employees from obtaining redress through lawsuits. Dalehite v. United States, 346 U.S. 15, 24- 25, 73 S.Ct. 956, 962 (1953). In 1946, however, Congress enacted the Federal Tort Claims Act (“FTCA”), which constituted “a limited waiver of the United States’ sovereign immunity.” Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 714 (1992). Case 4:15-cv-01003-DGK Document 14 Filed 10/07/16 Page 1 of 6 2 Under the FTCA, the United States may be held liable “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). Thus, in FTCA cases involving medical malpractice claims, local medical malpractice state law applies. See, e.g., LaFromboise v. United States, 439 F.3d 792, 793 (8th Cir. 2006). In the present case, Eikenbary alleges that the subject acts or omissions of medical malpractice occurred in Missouri. As such, as to the United States’ tort liability, Missouri substantive tort and medical malpractice law applies. One particular aspect of Missouri medical malpractice law requires a dismissal of Eikenbary’s CIVIL COMPLAINT at the present time. Missouri=s medical malpractice law, like many other jurisdictions, contains a requirement designed to ensure a level of substantive reliability before a medical malpractice case is filed. Specifically, Missouri substantive1 law provides: 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. 1 The requirements of MO. REV. STAT. ' 538.225 are substantive rather than procedural and the statute (and similar statutes in other jurisdictions) have routinely been applied in federal court medical malpractice litigation. See, e.g., Moore v. Ernest-Jackson, 16 Fed. Appx. 517, 518, 2001 WL 881398, op. at 1 (8th Cir. Aug. 7, 2001); Hill v. Morrison, 870 F.Supp. 978, 981 (W.D. Mo. 1994). Case 4:15-cv-01003-DGK Document 14 Filed 10/07/16 Page 2 of 6 3 MO. REV. STAT. ' 538.225.1. The statute further provides that the necessary 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.” MO. REV. STAT. ' 538.225.5. In this case, Eikenbary’s lawsuit has been on file since December 29, 2015. However, to date, Eikenbary has not complied with the affidavit requirement as to his medical malpractice claims against the United States. As such, regardless of any good cause, Eikenbary has not complied with, and cannot comply with, MO. REV. STAT. ' 538.225. To that end, in 2005, the Missouri legislature amended the medical malpractice affidavit statute to make a dismissal of a case mandatory for a plaintiff=s failure to provide the affidavit required by the statute. 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. ' 538.225.6 (emphasis added). Missouri courts and federal courts have repeatedly held that the revised language of Section 538.225 is clear and unambiguous and that dismissal of an action is mandatory,2 not discretionary, if a plaintiff does not timely file an adequate health care affidavit within the 90-180 day time frame articulated by the statute. See, e.g., J.K.M. v. Dempsey, 317 S.W.3d 621, 627 (Mo. App. [S.D.] 2010) (“The trial court is required to dismiss the case if the 2 “When a statute mandates that something be done by providing that it ‘shall’ occur and also provides what results ‘shall’ follow a failure to comply with the statute, it is clear that it is mandatory and must be obeyed.” SSM Health Care St. Louis d/b/a St. Joseph Health Center v. Schneider, 229 S.W.3d 279, 281 (Mo. App. [E.D.] 2007). Case 4:15-cv-01003-DGK Document 14 Filed 10/07/16 Page 3 of 6 4 plaintiff does not file the affidavit within the statutory time period.”); Sledge v. United States, 723 F.Supp. 2d 87, 99-101 (D.D.C. 2010) (applying Missouri law); White v. Tariq, 299 S.W.3d 1, 4 (Mo. App. [E.D.] 2009). For the foregoing reasons and in light of Eikenbary’s3 failure to comply with the substantive requirements of Missouri medical malpractice law, defendant the United States of America respectfully requests that the Court dismiss this action without prejudice4 pursuant to the mandate of MO. REV. STAT. ' 538.225. 3 The United States acknowledges the pro se litigant status of Eikenbary and defers to the Court as to whether Eikenbary should be afforded some leniency in complying with the requirements of Missouri law. However, other courts have consistently and uniformly applied the requirements of MO. REV. STAT. ' 538.225.6, even in cases involving pro se plaintiffs. See, e.g., Mackovich v. United States, 630 F.3d 1134, 1135 (8th Cir. 2011); Guile v. United States, 2011 WL 4406326, op. at *3 (E.D. Mo. Sept. 21, 2011); Keating v. Smith, 2010 WL 4273324, op. at *2 (E.D. Mo. Oct. 25, 2010), aff'd, 492 Fed. App’x 707 (8th Cir. 2012); Wright v. Missouri, 2008 WL 151368, at *1 (W.D. Mo. Jan. 7, 2008), report and recommendation adopted, 2008 WL 508668 (W.D. Mo. Feb. 21, 2008); Mello v. Giliberto, 73 S.W.3d 669, 671 (Mo. App. [E.D.] 2002); Manning v. Fedotin, 64 S.W.3d 841, 846 (Mo. App. [W.D.] 2002); Hill v. Morrison, 870 F. Supp. 978, 980 (W.D. Mo. 1994). 4 Typically, dismissals pursuant to MO. REV. STAT. ' 538.225.6 must be without prejudice to refiling. Devitre v. Orthopedic Center of St. Louis, LLC, 349 S.W.3d 327, 330 n.3 (Mo. App. [E.D.] 2011). However, a dismissal is still mandated even if the applicable limitations period for filing a new suit has expired so that a new action would be barred B effectively turning any dismissal into one with prejudice. White, 299 S.W.3d at 5. Case 4:15-cv-01003-DGK Document 14 Filed 10/07/16 Page 4 of 6 5 Respectfully submitted, Tammy Dickinson United States Attorney /s/ Jeffrey P. Ray Jeffrey P. Ray Deputy United States Attorney Missouri Bar No. 35632 Charles Evans Whittaker Courthouse 400 East Ninth Street, Fifth Floor Kansas City, MO 64106 (816) 426-3130 FAX: (816) 426-3165 Jeffrey.Ray@usdoj.gov ATTORNEYS FOR THE UNITED STATES OF AMERICA Case 4:15-cv-01003-DGK Document 14 Filed 10/07/16 Page 5 of 6 6 CERTIFICATE OF SERVICE The undersigned Deputy United States Attorney hereby certifies that a true and correct copy of the foregoing MOTION OF THE UNITED STATES TO DISMISS was electronically filed with the Clerk of the Court using the CM/ECF system on this 7th day of October, 2016. In addition, a true and correct copy of the foregoing MOTION OF THE UNITED STATES TO DISMISS was placed in the United States mail, first class, postage prepaid, and addressed to the following non-CM/ECF participant: Donald Eikenbary 523 Norton Street Kansas City, Missouri 64124 PRO SE PLAINTIFF on this 7th day of October, 2016. The original of this MOTION OF THE UNITED STATES TO DISMISS will be maintained by the undersigned Deputy United States Attorney. /s/ Jeffrey P. Ray / Jeffrey P. Ray Deputy United States Attorney Case 4:15-cv-01003-DGK Document 14 Filed 10/07/16 Page 6 of 6