In its decision filed on October 13, 2015, the Supreme Court of Missouri (“Missouri Supreme Court”) en banc affirmed the trial court’s dismissal of a Missouri medical malpractice wrongful death case filed against three chiropractors because the plaintiffs failed to file the required affidavit stating that they had obtained the written opinion of a qualified health care provider in support of their claims, as required by RSMo Sup. 2013 section 538.225.
Notably, the plaintiffs had previously filed an identical wrongful death medical malpractice case against the same defendants in the same court that included the required affidavit, which they litigated for two and a half years before they voluntarily dismissed that medical malpractice case, and re-filed an identical petition but failed to attach the affidavit to the new petition.
The Missouri medical malpractice defendants filed their motion to dismiss the plaintiffs’ petition due to their failure to file the required affidavit, and the trial court granted the defendants’ motion because the plaintiffs had failed to file the affidavit within 180 days of filing the second action.
Section 538.225 provides, in relevant part: 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 the plaintiff’s attorney shall file an affidavit with the court stating that he or she 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 … 6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice.
The Missouri Supreme Court held that the trial court had properly granted the defendants’ motion to dismiss because the plaintiffs failed to file their affidavit pursuant to section 538.225, which unambiguously required the plaintiffs to file an affidavit in their medical negligence case and required the trial court to dismiss without prejudice any medical malpractice action if the affidavit is not filed.
The Missouri Supreme Court further held that the trial court’s determination in the first case that the plaintiffs’ claims merited a jury trial did not alleviate the plaintiffs of their obligation to re-file the affidavit in the second medical malpractice action. Due to the passage of time and Missouri’s three-year statute of limitations governing wrongful death actions, the plaintiffs are now prohibited from re-filing their medical malpractice wrongful death claims in a third suit.
In a dissenting opinion, one judge of the Missouri Supreme Court argued that section 538.225 violates the open courts provision of article I, section 14 of the Missouri state constitution because the purpose of the courts is to screen out non-meritorious cases and the mandatory affidavit requirement of Section 538.225, the purpose of which is to screen out non-meritorious medical malpractice claims, is duplicative and amounts to a restriction on access to the courts, especially in light of the practical burden that it imposes on medical malpractice plaintiffs to find a non-local health care provider as a prerequisite to exercising their constitutional right to access the courts.
Source Lang, et al. v. Goldsworthy, et al., No. SC94814.
If you or a loved one may be the victim of medical malpractice in Missouri, you should promptly find a Missouri malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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