349 S.W.3d 327
Mo.2011Background
- Devitre injured during an August 2000 car accident; defendants scheduled an independent medical examination (IME) of Devitre under Rule 60.01(a) in 2006; Rotman conducted the IME for The Orthopedic Center; Devitre alleged assault/battery but stated the claim was medical malpractice; circuit court dismissed for failure to file a health care affidavit under section 538.225; Devitre refiled within the savings statute after initial dismissal; the trial court also sustained service and 538.225 dismissals; the Supreme Court held that IME creates a physician-patient relationship and that the true claim is medical malpractice, requiring a health care affidavit; the dismissal was proper under 538.225.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an IME establishes a physician-patient relationship for §538.225. | Devitre was not Rotman’s patient. | IME participants are health care providers under §538.225. | Yes; IME creates a physician-patient relationship triggering §538.225. |
Key Cases Cited
- Gaynor v. Washington Univ., 261 S.W.3d 650 (Mo. App. 2008) (determines when a health care affidavit is required based on provider–patient relationship and true claim)
- J.K.M. v. Dempsey, 317 S.W.3d 621 (Mo. App. 2010) (applies substance-over-form approach to medical malpractice analysis)
- Robinson v. Health Midwest Dev. Grp., 58 S.W.3d 519 (Mo. banc 2001) (takes substance-over-form approach to determine medical malpractice claim)
- Worley v. Worley, 19 S.W.3d 127 (Mo. banc 2000) (treats pleadings by their substance, not caption)
- Wuerz v. Huffaker, 42 S.W.3d 652 (Mo. App. 2001) (assault/battery vs. medical malpractice distinctions in pleadings)
- Brown v. Bailey, 210 S.W.3d 397 (Mo. App. 2006) (physician-patient relationship concepts in malpractice context)