The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
EVELYNE LYDON and )
THOMAS LYDON, )
)
Plaintiffs, )
)
v. ) Case No. 04-3084-CV-S-REL
)
EDEN R. ESGUERRA, M.D., )
MERCY CLINICS, INC., )
DAVID K. JONES, M.D., )
JACK V. RHOADS, M.D., )
MIDWEST INTERNAL MEDICINE, PC, )
ST. JOHN’S REGIONAL MEDICAL )
CENTER, )
BRIAN F. SULLIVAN, R.PH., )
RALPH A. REPPOND, R.PH., )
RICHARD C. SACHAN, R.PH., )
and )
IFTIKAR ALI, )
)
Defendants. )
ORDER
Before the court is defendant Jack Rhoads’s motion for in camera inspection of
the written opinion of a legally qualified health care provider upon which plaintiffs’
affidavit pursuant to R.S.Mo. § 538.225 is founded. For the following reasons,
defendant’s motion will be denied.
I. BACKGROUND
Plaintiffs filed this action on March 2, 2004, alleging medical negligence, direct
corporate negligence, and loss of consortium. Plaintiff alleges that she was given the drug
Gentamicin despite having been diagnosed with pseudomonas aeruginosa, a bacterial
infection resistant to most antibiotics, but susceptible to Gentamicin. Gentamicin can
cause kidney or nerve damage. Plaintiff Evelyne Lydon claims that her negligent receipt
of Gentamicin resulted in an inability to walk without falling, loss of the balance
mechanism in her inner ear, dizziness, loss of enjoyment of life, pain and suffering, and
emotional distress.
At the same time the complaint was filed, plaintiffs filed an affidavit stating that
plaintiffs had obtained a written opinion of a legally-qualified health care provider stating
that defendant Rhoads was negligent in his care of plaintiff Evelyne Lydon, that Dr.
Rhoads’s negligence caused plaintiff’s damages, and that the health care provider is
qualified to make such an opinion as he or she is a Board-certified infectious disease
specialist. The affidavit was filed in accordance with the provisions of R.S.Mo. §
538.2251.
1R.S.Mo. § 538.225 currently states as follows:
1. In any action against a health care provider for damages for personal injury or death
on account of the rendering of or failure to render health care services, the plaintiff or his
attorney shall file an affidavit with the court stating that he 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.
2. The affidavit shall state the qualifications of such health care providers to offer such
opinion.
3. A separate affidavit shall be filed for each defendant named in the petition.
4. Such affidavit shall be filed no later than ninety days after the filing of the petition
unless the court, for good cause shown, orders that such time be extended.
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On October 15, 2004, the parties filed a proposed scheduling order suggesting, in
part, that plaintiffs make expert witness disclosures, including all information required by
Federal Rule of Civil Procedure 26, by June 30, 2005, and that the expert witness
depositions take place between June 30, 2005, and September 30, 2005. Those
suggestions were incorporated in a scheduling order filed on October 18, 2004.
On May 2, 2005, defendant Rhoads filed a motion for in camera inspection of
health care affidavit. In his motion, defendant Rhoads states that because he was on call,
he admitted plaintiff to St. John’s Regional Medical Center and ordered the
administration of Gentamicin in accordance with the hospital’s pharmacy dosing service
and requested a consult from a physician specializing in infectious diseases. The specialist
then entered orders regarding the administration of Gentamicin which supplanted the
orders of Dr. Rhoads. Dr. Rhoads argues that the purpose of the health care affidavit
statute is to assure that medical malpractice claims for which there is no expert support
will be terminated at an early stage in the proceedings, and in order to effectuate the
purpose of the statute, he must be permitted to review the affidavit concerning his care of
plaintiff Evelyne Lydon.
On May 4, 2005, plaintiffs filed a response, pointing out that defendant Rhoads’s
motion seeks authorization for in camera review of a document that is already a matter of
public record, filed in this case as document number 8.
5. If the plaintiff or his attorney failed to file such affidavit the court may, upon motion of
any party, dismiss the action against such moving party without prejudice.
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On May 10, 2005, defendant Rhoads filed a reply, stating that although he had
utilized the term “affidavit” in his motion, he was really referring to the written opinion of
the legally qualified health care provider upon which plaintiffs’ § 538.225 affidavit is
founded.
On May 16, 2005, after obtaining leave to file a second response, plaintiffs argued
that there is no legal authority for authorizing defendant Rhoads to review the written
opinion.
II. SECTION 538.225
R.S.Mo. § 538.225 currently provides as follows:
1. In any action against a health care provider for damages for
personal injury or death on account of the rendering of or failure to render health
care services, the plaintiff or his attorney shall file an affidavit with the court
stating that he 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.
2. The affidavit shall state the qualifications of such health care
providers to offer such opinion.
3. A separate affidavit shall be filed for each defendant named in the
petition.
4. Such affidavit shall be filed no later than ninety days after the filing
of the petition unless the court, for good cause shown, orders that such time be
extended.
5. If the plaintiff or his attorney failed to file such affidavit the court
may, upon motion of any party, dismiss the action against such moving party
without prejudice.
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There is no dispute that the requirements of § 538.225 apply in federal diversity
actions. Hill v. Morrison, 870 F. Supp. 978, 982 (W.D. Mo. 1994); Smith v. Planned
Parenthood of the St. Louis Region, 225 F.R.D. 233 (E.D. Mo. 2004). The dispute is
exactly what is required or permitted under the current state of the law.
On May 13, 2005, § 538.225 was amended to require that the affidavit state the
name and address of the legally qualified health care provider, that the health care
provider be a specialist practicing in the same specialty as the defendant, and also
provides that a court may, on motion, examine in camera the written opinion and
conduct a hearing to determine whether there is probable cause to believe that a qualified
health care provider will testify that the plaintiff was injured due to medical negligence by
a defendant. If the court finds that there is no such probable cause, the court may dismiss
the petition.
It would seem that the statute as amended in May of this year provides the
authority for the relief sought by defendant (except that only the court may conduct the
in camera review of the written opinion). However, the amendments to § 538.225 do not
apply to this case; rather, they apply only to cases filed after August 28, 2005.
Therefore, as it stands, § 538.225 requires only that the plaintiff file an affidavit,
which was done simultaneously with the filing of the complaint. Section 538.225 does
not provide for in camera review of the written medical opinion.
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III. FEDERAL RULE OF CIVIL PROCEDURE 26
Federal Rule of Civil Procedure 26(a)(2) provides that the identities of expert
witnesses along with their written reports must be disclosed to the adverse party. The
reports must contain a complete statement of all opinions and the basis and reasons for
those opinions, the data and other information considered by the witness in forming his
or her opinions, the exhibits, the qualifications of the witness, a list of all publications
authored by the witness, compensation received by the witness, and a listing of any other
cases in which the witness has testified as an expert. Pursuant to the scheduling order
entered on October 18, 2004, the plaintiffs are required to make these expert witness
disclosures by June 30, 2005. Therefore, because of the scheduling order and Rule 26,
defendant will have more information by June 30 than that sought in this motion to
inspect the § 538.225 written report.
IV. CONCLUSION
Because there is no current legal authority for in camera review of the § 538.225
written report, and because defendant is entitled to received all expert witness opinions
by June 30, 2005, it is
ORDERED that defendant’s motion for in camera inspection of health care
affidavit is denied.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
June 1, 2005
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