364 S.W.3d 242
Mo. Ct. App.2012Background
- Plaintiff James Howard underwent knee replacement on March 6, 2007 treated post-operatively by Dr. Goh, an agent of SSM.
- Howard alleged Dr. Goh negligently failed to assess, diagnose a dilated cecum, and treat it before perforation, causing damages.
- Howard filed his medical negligence lawsuit on March 4, 2009 against Dr. Goh, SSM, and numerous other defendants.
- Howard sought an extension to file a Section 538.225 health care affidavit, requesting up to August 31, 2009; no court ruling on extension appears in record.
- On July 21, 2009 Howard filed affidavits of merit from Dr. Kodner; July 31, 2009 he amended petition; August 14, 2009 defendants denied negligence and challenged affidavits as defective.
- Trial court eventually dismissed without prejudice as to Defendants for untimely affidavits; Howard appealed challenging Kodner's qualification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kodner is a legally qualified health care provider. | Howard argues Kodner qualifies under 538.225 per Spradling. | Goh/SSM contend Kodner is not legally qualified. | Affirmed dismissal; Kodner not timely or properly qualified under statute. |
Key Cases Cited
- Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683 (Mo. banc 2010) (defines legally qualified provider for 538.225)
- Schneider v. SSM Health Care St. Louis, 229 S.W.3d 279 (Mo.App. E.D.2007) (statutory interpretation of 538.225 timing; mandate to dismiss if not timely filed)
- Mello v. Giliberto, 73 S.W.3d 669 (Mo.App. E.D.2002) (good cause for extensions; not shown here)
- J.K.M. v. Dempsey, 317 S.W.3d 621 (Mo.App. S.D.2010) (affirmation that certain arguments on completeness of affidavits moot)
- Foster v. State, 352 S.W.3d 357 (Mo.banc 2011) (standard of review for motions to dismiss)