STATE EX REL. TANNER v. Nixon
Decision Date | 13 April 2010 |
Docket Number | No. WD 71240.,WD 71240. |
Citation | 310 SW 3d 727 |
Parties | STATE of Missouri, ex rel., John P. TANNER, D.D.S., M.D., Relator, v. The Honorable W. Stephen NIXON, Judge of the 16th Judicial Circuit Court, Respondent. |
Court | Missouri Court of Appeals |
Richard T. Merker, Esq., for Relator.
Larry Delano Coleman, Esq., for Respondent.
Before Writ Division: JOSEPH M. ELLIS, Presiding Judge, JAMES M. SMART, JR., Judge and ALOK AHUJA, Judge.
John P. Tanner, D.D.S., M.D. (Relator), filed a petition for a writ of mandamus, seeking to compel the Honorable W. Stephen Nixon (Respondent), Judge of the Sixteenth Judicial Circuit Court of Missouri, to dismiss a personal injury action filed by Tiffany Robinson (Plaintiff) for her failure to timely file a health care affidavit as required by § 538.225.1 On August 24, 2009, we issued our preliminary writ of mandamus, which we now make absolute.
On October 14, 2008, Plaintiff filed a personal injury petition for damages, alleging that Relator, an oral surgeon, was negligent when he treated her for an extraction of third molars. Plaintiff alleged that she suffered multiple injuries, including peeling of her skin, skin cracking and swelling, and discoloration of her skin. On November 7, 2008, Relator filed his answer to Plaintiff's petition in which he asserted, inter alia, that the petition failed to state a claim upon which relief could be granted. On the same date, Relator also filed a motion to dismiss, with suggestions in support thereof, contending that Plaintiff failed to comply with the requirements of § 538.225. That section states:
On December 22, 2008, the Honorable John R. O'Malley sustained Relator's unopposed motion to dismiss and found that Plaintiff failed to file a health care affidavit within ninety days, as required by statute. Thereafter, Plaintiff filed a motion to alter or amend the judgment, asserting that it should be set aside because the time permitted by statute for filing a health care affidavit had not run at the time Judge O'Malley entered his dismissal of the petition.
On April 16, 2009, Respondent sustained Plaintiff's motion and set aside the December 22nd judgment. Relator filed a renewed motion to dismiss, claiming that Plaintiff had still not filed a health care affidavit and the ninety-day period for doing so had now long since expired. Respondent overruled the motion on May 14, 2009. Thereafter, Relator filed this petition for a writ of mandamus. We issued a preliminary writ on August 24, 2009, and Respondent timely filed an answer.
"A writ of mandamus is proper where it is necessary to prevent injustice or great injury." State ex rel. Joyce v. Baker, 141 S.W.3d 54, 56 (Mo.App. E.D. 2004). The party seeking the writ must allege and prove a specific, clear, and unequivocal right to the thing claimed. Id. "Mandamus will issue from this Court to a circuit court where the latter refuses to act in respect to a matter within its jurisdiction when it is its duty to act, that is, when its refusal is, in effect, a failure to perform a duty within its jurisdiction." State ex rel. Stewart v. McGuire, 838 S.W.2d 516, 518 (Mo.App. S.D.1992).
Respondent first contends that we lack jurisdiction over this petition, citing article V, section 3 of the Missouri Constitution, which generally addresses the jurisdiction of the Supreme Court of Missouri. However, our jurisdiction derives from article V, section 4, which states that "the supreme court and districts of the court of appeals may issue and determine original remedial writs." Accordingly, we have jurisdiction over this petition for writ of mandamus. McGuire, 838 S.W.2d at 517-18.
Respondent next argues that we should not issue a writ of mandamus because a health care affidavit is not required in res ipsa loquitur cases. He cites Sides v. St. Anthony's Medical Center, 258 S.W.3d 811 , as support for his contention. Contrary to Respondent's assertion, however, the Sides Court expressly held that a health care affidavit was required in a medical malpractice case based on res ipsa loquitur. Id. at 820. The primary issue in Sides was whether expert testimony could be used to support a res ipsa loquitur claim in medical malpractice. Id. at 814. The Court held that a medical malpractice case can proceed under a res ipsa loquitur theory where the plaintiff offers a medical expert opinion that plaintiff's injury would not have occurred in the absence of negligence by the defendant. Id. at 819. The defendants in Sides alternatively argued that, even it was otherwise appropriate to apply a res ipsa loquitur theory in a medical malpractice case, "use of that theory is prohibited by section 538.225." Id. at 820. Defendants claimed that § 538.225.1 "requires that only a specific negligence theory can be brought against a medical malpractice defendant." Id. The Court rejected the argument, stating:
The defendants cite simply to the fact that the legislature has required proof that some act of defendant cause or contributed to cause the injury. This is required to be shown in res ipsa loquitur cases also, however, and provides no basis on which to determine that the legislature would disapprove of the use of res ipsa loquitur in malpractice cases.
Id. Thus, Sides does not support Respondent's argument that a plaintiff proceeding under a res ipsa loquitur theory need not submit a healthcare affidavit under § 538.225.
Moreover, in Budding v. SSM Healthcare System, 19 S.W.3d 678, 680-81 n. 4 (Mo. banc 2000), the Court rejected dicta in Mahoney v. Doerhoff Surgical Services, Inc. 807 S.W.2d 503, 508 (Mo. banc 1991), suggesting that health care affidavits were not required in medical malpractice cases relying on the res ipsa loquitur theory.2 The Budding Court expressly declared that "nothing in sec. 538.225 exempts a plaintiff from filing an affidavit who shows `that the medical malpractice . . . is of that untypical kind that does not require proof of standard of care by expert opinion."3Id. at 680-81 n. 4; See also, Gaynor v. Washington University, 261 S.W.3d 650, 654 (Mo.App. E.D.2008) ( .
The requirement in § 538.225 is clear and unambiguous that "in any action against a health care...
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