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Medical Malpractice

Deborah K. Dodge, Esquire

The fact that a person has committed suicide may not foreclose a medical negligence case against a healthcare provider based upon wrongful death claim. Kivland, et al. v. Columbia Orthopaedic Group, LLP, et al., No. 90708 (Mo. banc, January 25, 2011), Wolff, J.

Wife and children appeal the Boone County Circuit Court's decisions to grant defendants' motion to strike an expert witness and defendants' motion for partial summary judgment. The case arises out of the medical treatment Dr. Robert Gaines provided Gerald Kivland who, after a surgical procedure, suffered from paraplegia and continuous and extreme pain in the paralyzed region. Mr. Kivland brought suit alleging medical negligence and his wife sued for damages for loss of consortium. Eight months after the filing of the lawsuit, Mr. Kivland committed suicide. Thereafter, the pleadings were amended to add a claim for wrongful death on behalf of his widow and his daughter and a lost chance of survival claim. During discovery, Dr. Gaines moved to strike expert, Michael Jarvis who offered an affidavit supporting a claim for wrongful death. Michael Jarvis testified that Mr. Kivland's suicide resulted from the high level of pain caused by the surgery, that the suicide was not a rational choice and, therefore, was not voluntary.

The above testimony is relevant because previous caselaw required such findings in order to maintain a wrongful death claim. In reviewing previous caselaw, the Supreme Court noted that there were essentially two positions:  (1) when an injury produces "mental torture" and the act of suicide of the insane person is "voluntary", no recovery is permitted; and (2) when the "person becomes insane and bereft of reason", and his activity is "involuntary", a wrongful recovery may be warranted. The Missouri Supreme Court did not understand this type of logic. The Missouri Supreme Court sought to answer the following question:  When suicide occurs, must the plaintiff show that the decedent was "insane" and acting as a result of an "irresistible impulse" at the time of his or her suicide in order to provide the causal link in a wrongful death action? 

:  Affirmed in part, reversed and remanded in part. Plaintiffs did not plead a lost chance of survival action. Rather, plaintiffs pled a wrongful death claim. The trial court's order as it relates to the lost chance of survival claim was affirmed. The Court reversed the trial court's order striking the testimony of psychiatrist, Dr. Jarvis, as his testimony complied with Section 490.065. The trial court also reversed the trial court's granting of summary judgment on the wrongful death claim. The Missouri Supreme Court announced that adding an additional finding that the person committing suicide must be determined to be insane and his act involuntary is not necessary. Rather, the case should be determined based upon whether or not decedent's death was directly caused or contributed to be caused by the defendant's negligence.


An orthopedic doctor conducting an independent medical examination is a healthcare provider providing a healthcare service and as such, any plaintiff bringing suit against him must file a healthcare affidavit. Devitre, v. The Orthopedic Center of Saint Louis, LLC, et al., No. 90835 (Mo. banc, June 28, 2011), Breckenridge, J.

Sohrab Devitre appeals the Circuit Court of St. Louis County's Motion to Dismiss action for failure to file a healthcare affidavit pursuant to Section 538.225. On appeal, the Supreme Court addressed the issue of whether the trial court abused its discretion in dismissing Mr. Devitre's lawsuit of assault and battery against a doctor performing an independent medical evaluation for the reason that Mr. Devitre failed to file a healthcare affidavit. He argued that Section 538.225 was inapplicable as there was not a physician/patient relationship established. In so doing, Mr. Devitre could bring a tort action based upon assault and battery against the doctor for harming him while manipulating his arm for the purposes of an independent medical examination. The doctor agreed that Mr. Devitre was not his patient while performing an independent medical evaluation.

Affirmed. The Supreme Court held that Section 538.225 requires a plaintiff to file an affidavit attesting to the merits of any action against a healthcare provider and an independent medical examination is a healthcare service that he provides patients in the ordinary course of his business. Mr. Devitre was a client of this medical service and, therefore, a patient of the defendant doctor. The claim was not one of assault and battery but rather a medical negligence claim and as such an affidavit is required. Mr. Devitre failed to plead that Dr. Rotman touched him without consent during the medical examination. Furthermore, as it relates to assault, Mr. Devitre failed to plead apprehension of bodily harm. Without a well-pleaded assault or medical battery claim, there only remained a potential claim of medical negligence.

Judge Teitelman dissented, noting in his opinion that Mr. Devitre was not Dr. Rotman's patient and Dr. Rotman was not performing and providing healthcare services. Rather, he was examining Mr. Devitre at the request of the defendant in an adversarial legal proceeding. Finally, Mr. Devitre's true claims were assault and battery and not medical negligence, and therefore, the requirements of Section 538.225 were inapplicable.

The Missouri Bar Courts Bulletin, 11-Aug

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