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Malpractice Claim Dismissal for Failure to File Expert Affidavit Did Not Violate Rights


A man under the care of chiropractors died. His family members filed a wrongful death action alleging medical negligence. The complaint alleged that the negligent chiropractic services caused the man’s death. Along with the complaint, the family members filed an affidavit stating that they obtained the written opinion of a qualified health care provider in support of their claims as required by Missouri law.

 

After two and a half years of litigation, the family members voluntarily dismissed that action. Nearly a year after the dismissal of the first action, the family members timely refiled an identical petition in the same court. Although the family members had in their possession a compliant affidavit that they had filed in their first lawsuit, they did not refile it in their second lawsuit.

 

The Jackson County Circuit Court granted the chiropractors’ motion to dismiss for failure to comply with Missouri’s statutory heath care affidavit requirement. Due to the passage of time and the three-year statute of limitations governing wrongful death claims, the family members were prohibited from refiling their claims in a third suit.

 

The Supreme Court of Missouri affirmed. The court held that the dismissal of the family members’ lawsuit did not violate their right to open courts and jury trial under Missouri’s constitution.

 

The dismissal of the family members’ lawsuit did not violate their right to open courts and jury trial under Missouri’s constitution. The dismissal was based on their failure to refile the health care affidavit that they had filed with their original lawsuit. They were time-barred from refiling their lawsuit again. Because the second action was not filed until nearly a year after the dismissal of the first action, the family members were prevented from filing a third action within the one-year savings provision of Missouri’s statute requiring the filing of a health care affidavit in medical negligence cases. The statute makes no exception for a plaintiff who previously filed an affidavit in an identical prior action. Nothing before the trial court in the second action indicated that the family members’ case was meritorious because they failed to refile the affidavit or any of the discovery obtained in the previous action.

 

The Supreme Court of Missouri affirmed the trial court’s grant of the chiropractors’ motion to dismiss.

 

See: Lang v. Goldsworthy, 2015 WL 5936587 (Mo., October 13, 2015) (not designated for publication).  

 

 

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