Negligence: Medical Malpractice-Writ of Mandamus to Dismiss

Relators sought a permanent writ of mandamus to compel respondent to dismiss plaintiff’s medical malpractice suit against relators. Relators argued that respondent was required to dismiss the case because plaintiff had failed to timely serve them by the statutory deadline. Respondent argued that plaintiff had discretion in making service under the rules of civil procedure.

Where the rule only required that service be made “promptly” and the statute imposed a fixed deadline for service and the consequence for untimely service, there was no conflict between the rule and statute and respondent should have dismissed the case.

Preliminary writ made permanent.

Brick v. Koeppen (MLW No. 79651/Case No. SD37767 – 8 pages) (Missouri Court of Appeals, Southern District, Sheffield, J.) Proceeding in mandamus.