Korman v. Lefholz, 65714

• Decision Date: 17 January 1995
• Docket Number: No. 65714,65714
• Parties: Charlene KORMAN and Larry Korman, Plaintiffs/Appellants, v. H.M. LEFHOLZ, D.C., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 771

890 S.W.2d 771

Charlene KORMAN and Larry Korman, Plaintiffs/Appellants, v. H.M. LEFHOLZ, D.C., Defendant/Respondent.

No. 65714.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 17, 1995.

Rochelle A. Kaskowitz, Thomas M. Kendrick, St. Louis, for appellants.

Walter D. McQuie, Jr., Montgomery City, for respondent.

CRANE, Presiding Judge.

Plaintiffs Charlene and Larry Korman appeal from the trial court's dismissal of their petition filed in 1993 seeking damages from defendant H.M. Lefholz, D.C., for medical malpractice and loss of consortium. The trial court had dismissed that petition because it interpreted its earlier dismissal of an identical cause of action filed by plaintiffs in 1989 to have been with prejudice. We reverse and remand for the reason that the trial court's previous dismissal of plaintiffs' 1989 action for failure to file a proper affidavit pursuant to § 538.225 RSMo (1986) was a dismissal without prejudice which dismissal permitted plaintiffs to bring another civil action for the same cause under former Rule 67.03. ¹ We further hold that the action is not barred by the applicable statute of limitations.

On January 5, 1989 plaintiffs filed a petition (1989 petition) alleging that defendant's negligent chiropractic treatment of plaintiff Charlene Korman had resulted in a brain stem injury. They sought damages for plaintiff Charlene Korman's injuries and for plaintiff Larry Korman's loss of consortium. On March 31, 1989 plaintiffs' counsel filed an affidavit pursuant to § 538.225, which averred in part:

2. Prior to the institution of this action I have received a 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 contributed to cause the damages claimed in the Petition.

During discovery defendant requested the written opinion of the health care provider upon which counsel's affidavit was based. Plaintiffs provided Dr. Robert Silver's April 9, 1987 report of his January 8, 1987 neurological evaluation, which concluded:

In as much as her acute neurological syndrome occurred very shortly after chiropractic manipulation, and in as much as this phenomenon has been described in conjunction with chiropractic manipulation, I think it is highly possible that a cause and effect relationship exists.

In his deposition on February 2, 1990, Dr. Silver was asked the following question on cross-examination and responded as follows:

Q: Dr. Silvers, have you given the plaintiff or anyone on her behalf a written opinion stating that the defendant here, Dr. Lefholz, failed to use such care as a reasonably prudent and careful chiropractor would use under similar circumstances as that involved in the treatment of Mrs. Korman and that such failure to use such reasonable care directly contributed to cause the damages Mrs. Korman claims?

A: I doubt--without reading all the correspondence I doubt very much if I would have had anything approaching that terminology in any correspondence from this office.

As a result of this testimony, defendant filed a motion to dismiss asserting that plaintiffs failed to comply with § 538.225. On April 24, 1992 the trial court made the following entry on its docket sheet "Defendant's Motion to Dismiss-sustained." On February 8, 1993 the trial court entered its Order Nunc Pro Tunc, which provided: "Upon motion of Plaintiffs, it is hereby Ordered that the record in this cause is corrected as follows: The docket entry of April 24, 1992 is corrected nunc pro tunc to read 'Defendant's Motion to Dismiss Sustained. Petition dismissed without prejudice.' "

On April 8, 1993 plaintiffs filed their present petition for medical malpractice and loss of consortium along with counsel's affidavit as required by § 538.225. Defendant moved to dismiss. The trial court sustained the motion and overruled plaintiffs' motion to reconsider. It explained its action as follows:

This court is now convinced that in spite of its intention to dismiss CV 589-1 CC without prejudice the legal effect of its writings was to dismiss with prejudice.

* * * * * *

This ruling dismissing the plaintiffs' law suit all supposes that the court is correctly reading Sec 538.225(5) "the court may ... dismiss the action ... without prejudice." This court takes this sentence as offering the court the option of dismissing with or without prejudice.

Plaintiffs appeal. They first argue that the action represented by the 1989 petition was dismissed without prejudice, and therefore they are permitted to bring another civil action for the same cause.

Section 538.225.4 requires that in a malpractice action against a health care provider an affidavit by plaintiff's counsel be filed no later than 90 days after the filing of the petition. The affidavit must state that the attorney

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.

§ 538.225.1. Section 538.225.5 provides that upon failure to file such an affidavit "the court may, upon motion of any party, dismiss the action against such moving party without prejudice." Dismissal without prejudice is the only sanction available under the statute for failure to comply with the affidavit requirement. Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506, 508 (Mo. banc 1991); Fields v. Curators of Univ. of Missouri, 848 S.W.2d 589, 591 (Mo.App.1993). A trial court commits error if it dismisses an action with prejudice for noncompliance with § 538.225. Fields, 848 S.W.2d at 591.

Failure to file an affidavit under § 538.225.5 includes the failure to file any affidavit, Mahoney, 807 S.W.2d at 505, as well as the filing of an insufficient affidavit. Fields, 848 S.W.2d at 590.

Where a statute directs what the judgment shall be, "it is presumed that the judgment rendered by the court was such a judgment as only could have been rendered," and any omission or deviation is classified as clerical error correctable by nunc pro tunc. Missouri Hwy. & Transp. Com'n v. Roth, 735 S.W.2d 19, 21-22 (Mo.App.1987). "If a statute directs that a judgment contain certain language or provisions, then the omission of such language or provisions in the judgment will be attributed to clerical error which may be corrected by a nunc pro tunc order." In re Marriage of Ray, 820 S.W.2d 341, 344 (Mo.App.1991). Thus the trial court effectively corrected its judgment to order "Petition dismissed without prejudice" by its nunc pro tunc order. The trial court erred in interpreting its dismissal of the 1989 petition as "with prejudice" and in using that dismissal as the basis to dismiss the 1993 petition.

Defendant argues that the trial court's order of dismissal was nevertheless correct because the 1993 petition was filed more than two years after the alleged...