The Supreme Court of Missouri (“Missouri Supreme Court”) held in its en banc opinion issued on May 1, 2018 that the Missouri medical malpractice plaintiff’s case was properly dismissed because she failed to file any affidavit of merit, not because she offered multiple affidavits or because the judge believed the medical opinions were not offered by persons in substantially the same specialty as experts who would have offered sufficient evidence as to breach of the standard of care, causation, and damages to make a submissible case at trial.
The Missouri medical malpractice plaintiff alleged in her petition that on May 7, 2013, the defendant surgeon performed a scheduled surgery to remove her gall bladder during which he allegedly injured her right hepatic duct, causing bile to leak into the surgical field. Over the next several months, the plaintiff required additional medical attention and a second surgery to repair the injured duct.
The plaintiff failed to file the affidavit of merit required by Section 538.225.1, arguing that section 538.225, as revised in 2005, violates a plaintiff’s right to jury trial, Missouri’s open courts provision, and separation of powers. The trial court granted the defendant’s motion to dismiss, and dismissed the plaintiff’s Missouri medical malpractice lawsuit for the failure to file the affidavit of merit. The plaintiff appealed.
Section 538.225.1 requires that the plaintiff or plaintiff’s counsel “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.” The affidavit must be filed within 90 days of filing a petition unless the circuit court grants an extension.
In 2005, the statute was amended to require that the court “shall” dismiss the action if an affidavit is not filed, and also defined for the first time a “legally qualified health care provider” as one licensed “in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.” § 538.225.2, RSMo 2005.
The Missouri medical malpractice plaintiff argued on appeal that the trial court erred in sustaining the defendant’s Motion to Dismiss for Failure to File Healthcare Affidavit pursuant to RSMo. § 538.225 because that statute is unconstitutional in that there are circumstances where it is impossible for the plaintiff to comply with the requirements of RSMo. § 538.225.
The Missouri Supreme Court stated that the plaintiff’s “point is an abstract statement of law and is too general and vague, as is her argument regarding the alleged violation of the right to jury trial and separation of powers.” Nonetheless, the Missouri Supreme Court stated that the plaintiff’s key argument is that section 538.225 violates the open courts provision of Missouri’s constitution because the post-2005 definition of “legally qualified healthcare provider” arbitrarily and unreasonably restricts a plaintiff’s access to the courts in that it leads to dismissal of a case for failure to file an affidavit even if the plaintiff otherwise would have made a submissible case.
The Missouri Supreme Court reaffirmed its decision in a 1991 case, upholding the constitutional validity of section 538.225’s requirement of an affidavit stating the plaintiff or plaintiff’s attorney has the opinion of a legally qualified medical provider on the issues of breach of the standard of care and causation of damages (i.e., the Missouri Supreme Court reaffirmed the prior holding that the affidavit requirement is consistent with this substantive law because the purpose of requiring an “affidavit of merit” under section 538.225 is to prevent frivolous medical malpractice lawsuits when a plaintiff cannot put forth adequate expert testimony to support their claims – for this reason, section 538.225’s affidavit requirement denies no fundamental right, but at most merely redesigns the framework of the substantive law to accomplish a rational legislative end of protecting the public and litigants from the cost of ungrounded medical malpractice claims).
The Missouri Supreme court stated that in the present case, the the record simply does not show that the Missouri medical malpractice plaintiff’s case was dismissed because her affidavit showed she could not obtain an opinion from a physician in the right specialty, or because the affidavit showed she obtained only a single expert opinion addressing some but not all her claims of liability or damages. Rather, the record reveals she failed to file any affidavit at all. While the plaintiff says this was because she feared her affidavit would be rejected if filed, the Missouri Supreme Court stated that it can act only based on the record before it, not based on hypothetical facts not supported by the record.
The Missouri Supreme Court concluded: “[The plaintiff] is not affected by the alleged deficits in the statute she argues exist, and this Court, therefore, declines to further discuss the merits of her hypothetical constitutional arguments.”
Source Hink v. Helfrich, No. SC96371.
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