One-Time Exam Makes a Patient Under Missouri Medical Malpractice Law – Devitre v. The Orthopedic Center of Saint Louis

By July 7, 2011 July 18th, 2019 Medical Malpractice

Here in Missouri, we have a law requiring prospective medical malpractice plaintiffs to file a special affidavit, saying a qualified health care professional agrees that the defendant failed to use reasonable care, before they can proceed with their cases. As a St. Louis medical malpractice lawyer, I thought this had an interesting result in Devitre v. The Orthopedic Center of Saint Louis, a recent Missouri Supreme Court opinion. Sohrab Devitre sued the center and Dr. Mitchell Rotman for injuries he allegedly sustained during an independent medical exam. Rotman was not Devitre’s usual doctor; he had been hired to examine Devitre as part of an underlying auto accident lawsuit. (Devitre later won a small judgment in that case.) Devitre claimed Rotman intentionally forced him to move his injured arm and shoulder past their range of motion, causing pain and further injuries.
Devitre’s original complaint against Rotman and the Center explicitly said he was never a patient of Rotman’s, and that he was suing for intentional assault and battery, not medical malpractice. The trial court in St. Louis County dismissed the case because Devitre failed to file the health care affidavit. Devitre re-filed with substantially the same case. Rotman’s answer agreed that Devitre was never a patient, but said he intended to use medical negligence law in his defense. The trial court eventually denied Devitre’s motion to exclude those defenses and granted defendants’ motions to dismiss for failure to file an affidavit. Devitre appealed and the state Supreme Court granted transfer from the Court of Appeals.
On appeal, Devitre argued only that the health care affidavit requirement did not apply to his case, and thus the dismissal was in error. He said he did not fall within the meaning of “patient” within the broader statute, because he was receiving an independent medical exam that he was compelled to receive by the auto accident claim. The Supreme Court disagreed. Because the statute does not define “patient,” it looked to the dictionary definition of the word, which included (in Webster’s Third New International Dictionary) “a client for medical service.” This applied to Devitre, the court said. Furthermore, the court said Rotman’s statement that Devitre was not a patient was not binding because it was a point of law, not fact. Finally, the court found that Devitre’s claim was only an assault and battery claim on its surface; its essence was still a medical malpractice claim. Thus, it upheld the dismissal of Devitre’s claim. Judge Teitelman dissented on the “client” issue as well as the issue of whether medical malpractice was the true claim at issue.
While this dismissal is bad for Devitre’s claim, as a Missouri medical malpractice attorney, I think it has promise for future medical malpractice plaintiffs. In making this ruling, the court found a limited doctor-patient relationship between Rotman and Devitre, even though Devitre did not normally see Rotman. This could protect people who are injured in similar independent medical exams in the future, which could include exams related to new jobs, travel injuries, emergency rooms, workers’ compensation claims, workplace accidents and more. In all cases, those doctors and patients are new to each other, raising the chance of misinformation or confusion; some of those doctors are paid by people adverse to the patients’ interests. As a southern Illinois medical malpractice lawyer, I believe patients should always have the protections afforded by medical malpractice laws, even if they don’t use them — because knowledge of liability can change how doctors make decisions.


Carey, Danis & Lowe helps victims of medical malpractice seek fair compensation in both Missouri and southern Illinois. If you believe you were hurt by a doctor who didn’t take reasonable care with your health, call us today for a free consultation on your legal options. You can send us an email or call us at 1-87-678-3400.
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