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Medical Malpractice: Strict Compliance with the Missouri Health Care Affidavit Statute is a Must

June 16, 2014

In a procedurally convoluted case entitled Mayes v. St. Luke’s Hospital of Kansas City, the Missouri Supreme Court has issued a straightforward warning to medical malpractice plaintiffs: strict compliance with the health care affidavit requirement of Mo.Rev.Stat. § 538.225 is mandatory. “Substantial compliance” will not suffice.

Section 538.225(1) of the Missouri Revised Statutes provides: “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.”

Case #1

In Mayes, the surviving family members of a man who died after a procedure to remove a sternal wire from a prior aortic valve replacement surgery sued the surgeon, the hospital, and the surgeon’s employer, claiming wrongful death and lost chance of recovery. In addition to these claims, the plaintiffs raised “constitutional objections” to various statutes relating to medical malpractice cases, including asserting that the requirements in section 538.225 violated their rights under the “open courts” and trial by jury provisions of the Missouri Constitution.  Despite their objections, they filed the affidavits required by section 538.225. The affidavits stated that they had obtained a written opinion from an expert witness, and their expert witness was later deposed. 

Case #2

Plaintiffs voluntarily dismissed their first case without prejudice, and filed a second case five days later. They asserted the same claims and constitutional objections, but did not file health care affidavits. The defendants moved to dismiss case #2 for the plaintiffs’ failure to file the affidavits. The plaintiffs argued that they had complied with 538.225 by filing the required affidavits within 90 days of the filing of the petition in case #1 because defense counsel had agreed “to carry forth the original suit into this refiled suit.” The trial court found that a dismissal without prejudice was required due to the failure to provide health care affidavits.  Plaintiffs filed a motion to reconsider, asserting for the first time that they had substantially complied with 538.225. The trial court overruled the motion, and the plaintiffs appealed.

Case #3

Before filing the notice of appeal in case #2, the plaintiffs filed case #3 with the same allegations as the previous cases. In case #3, they did file the requisite health care affidavits. The defendants moved to dismiss case #3 on the ground that it was barred by the applicable statutes of limitations. The trial court sustained their motions and dismissed case #3.  Plaintiffs appealed, and the Supreme Court consolidated cases #2 and #3 for opinion. The Supreme Court held that case #3 was properly dismissed based on the statutes of limitations (three years for wrongful death claims and two years for lost chance of recovery). The most interesting discussion relates to case #2:

Plaintiffs did not preserve their constitutional claims:

In response to the defendants’ motion to dismiss, the plaintiffs argued that they had complied with section 538.225 and that the motion to dismiss was untimely. Plaintiffs did not assert their constitutional objections, and, therefore, failed to preserve for appeal the issues of whether section 538.225 violates their rights to access to open courts and to a trial by jury. 

Substantial Compliance is not sufficient:

Plaintiffs also argued that the trial court erred in dismissing case #2 because they had substantially complied with 538.225 by filing the affidavits in case #1, producing the expert disclosed in those affidavits for case #1, and agreeing to transfer discovery conducted during case #1 to case #2. The Supreme Court noted that on occasion, it has construed certain procedural statutes and rules to find that substantial compliance with the requirements is sufficient. The issue of whether substantial compliance can satisfy 538.225 had never been addressed. The Court looked to the statutory language, which directs a plaintiff to file an affidavit and directs the court to dismiss the action if an affidavit is not filed, and held that the language demonstrates that the legislature intended the requirement to be mandatory.

Furthermore, even if the statute allowed for substantial compliance, the plaintiffs’ actions were not sufficient.  The plaintiffs argued that they attempted to comply by filing the affidavits in case #1 and transferring the deposition testimony of their expert to case #2. However, the affidavits in case #1 could not constitute an attempt to comply with the affidavit requirements for case #2 because case #1 had been dismissed voluntarily. When a case is voluntarily dismissed, it is as if the case had never been filed. Therefore, any filings in a voluntarily dismissed case are treated as if they had never been filed. Similarly, the deposition testimony of plaintiffs’ expert does not amount to substantial compliance because it was never filed with the trial court, nor was anything filed with the court within the required time period referencing the existence of the deposition. 

The trial court was correct in dismissing plaintiffs’ case for failure to comply with 538.225. The statute requires strict compliance, not substantial compliance.

Consequences: 

The lesson of the Mayes case is clear. A plaintiff who fails to follow the exact letter of section 538.225 does so at his peril. Defendants should be alert to a malpractice plaintiff’s failure to strictly comply with the statute, and should be prepared to move to dismiss in the event of non-compliance.

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The BSCR Missouri Law Blog examines significant developments, trends and changes in Missouri law on a broad range of topics of interest to Missouri practitioners and attorneys and businesses with disputes subject to Missouri law. Learn more about the editor, David Eisenberg.

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