466 S.W.3d 694
Mo. Ct. App.2015Background
- Steve Austin injured both forearms on July 9, 2007, sought treatment, and later saw Dr. John Schiro, who allegedly diagnosed torn biceps and promised an orthopedic referral but did not timely arrange one. Austin later underwent surgery with cadaver grafts after tendon retraction.
- Austin filed a medical-malpractice petition in July 2009 (Clay County) naming Schiro and another physician; he voluntarily dismissed that case after Schiro moved to dismiss for lack of a health-care affidavit under § 538.225.
- Austin refiled a substantively similar petition on June 14, 2011, again naming Schiro (and another defendant). Ninety days after filing, counsel timely moved for a 90-day extension to file the required health-care affidavit but did not obtain a court order granting that extension.
- Austin filed a § 538.225 affidavit as to Schiro on December 9, 2011 (more than 90 days after filing the petition); no affidavit was filed as to the other defendant.
- Schiro moved to dismiss (and later to transfer venue); the court transferred venue to Clinton County and ultimately granted Schiro’s motion to dismiss Austin’s second petition without prejudice on the ground the affidavit was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Austin timely complied with § 538.225 by filing a motion for extension and then filing the affidavit within 90 days of that motion | Austin argued that filing a timely motion for extension and then filing the affidavit within 90 days of that motion satisfied the statute because the motion established good cause | Schiro argued plaintiff had to obtain an order granting the extension; absent a court order, the affidavit was untimely and dismissal was mandatory | Court held affidavit was untimely because no extension order was entered; dismissal without prejudice was required under § 538.225 |
Key Cases Cited
- Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683 (Mo. banc 2010) (dismissal without prejudice for failure to comply with § 538.225 is appealable)
- Howard v. SSM St. Charles Clinic Med. Group, Inc., 364 S.W.3d 242 (Mo. App. 2012) (affirming dismissal where plaintiff filed motion for extension but no court order appears in record)
- Kreutz v. Curators of the Univ. of Mo., 363 S.W.3d 61 (Mo. App. 2011) (standards for reviewing compliance with § 538.225)
- Mayes v. St. Luke's Hosp. of Kansas City, 430 S.W.3d 260 (Mo. banc 2014) (§ 538.225 is unambiguous and mandatory; court must dismiss when affidavit not timely filed)
- White v. Tariq, 299 S.W.3d 1 (Mo. App. 2009) (statute is clear that untimely affidavit requires dismissal)
- SSM Health Care St. Louis v. Schneider, 229 S.W.3d 279 (Mo. App. 2007) (plain meaning of § 538.225 mandates dismissal when affidavit not timely filed)
- Sillyman v. Barbe, 423 S.W.3d 304 (Mo. App. 2014) (rejecting substantive- merit argument as excuse for noncompliance with statutory affidavit requirement)