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Civil Practice and Procedure

John S. Sandberg, Esquire


Common law defenses held to be precluded by Section 432.047.2, the Statute of Frauds. Bancorpsouth Bank v. Paramount Properties, L.L.C. et al., No. 95871 (Mo. App. E.D., June 28, 2011), Hoff, J.

Plaintiff bank sued defendant for deficiency owed for promissory note. Debtor raised defenses of equitable estoppel and promissory estoppel. The bank countered that Section 432.047.2, the statute requiring that credit agreements be in writing, barred the use of these defenses by defendant. The trial court granted summary judgment to the bank on appeal.


Held: Affirmed. The statute of frauds eliminated the common law exceptions to the statutory statute of frauds.


Health care affidavit required in action against physician who performed Rule 60 physical exam; exam alone created limited physician-patient relationship. Devitre  v.  The Orthopedic Center of  Saint Louis, LLC., et al., No. 90835 (Mo banc. June 28, 2011), Breckinridge, J.

Plaintiff, in an earlier case had been examined by the defendant doctor under Rule 60.01(a) for injuries arising from an auto accident. Dr. Rotman, the defendant, examined the plaintiff. Plaintiff's auto accident case went to trial and the plaintiff received a verdict. Thereafter, the plaintiff sued Dr. Rotman for personal injuries caused during the examination. The plaintiff claimed that he did not need to file a health care affidavit from an expert witness because he was never a patient of the doctor nor did he receive any medical treatment. The doctor agreed but pursued a motion to dismiss for failure to file an affidavit, which was granted by the court. The plaintiff appealed and the Supreme Court took the case on transfer after opinion by the Court of Appeals. The Court ruled that a physician performing a medical examination has a limited physician-patient relationship with the examinee that gives rise to limited duties. This limited relationship was sufficient for the Court to find that there was a physician-patient relationship and that the claim related to the provision of healthcare services. Accordingly, an affidavit was required and the failure to file one was cause for dismissal. (See also summary for this care under Medical Malpractice, infra)


The Missouri Bar Courts Bulletin,


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