Expert Affidavit Required for Failure to Obtain Informed Consent

A plastic surgeon performed liposuction and an abdominoplasty (or skin recision) on a woman. The woman suffered an improper placement of the incision, a wound edge discrepancy, infection, excess drainage, an infected hematoma, scarring, abdominal numbness, and a weakened abdominal wall.


The woman filed a petition against the plastic surgeon for damages resulting from the abdominoplasty, alleging medical negligence, informed consent negligence, negligence res ipsa loquitor and battery. Ultimately, all counts except the battery claim were dismissed without prejudice on the defendant's motion to dismiss for failure to file an affidavit as required by statute. The woman had made no attempt to file a health care affidavit that complied with the statute until the hearing on the plastic surgeon's motion to dismiss, and filing the affidavit at that point was untimely. The count that remained alleged that the plastic surgeon “intentionally inserted a scalpel in Plaintiff's abdomen and performed a surgical procedure called an abdominoplasty. Plaintiff was not informed of the nature of the procedure and did not consent to it.”


The plastic surgeon filed a motion for summary judgment, arguing again that the woman was required to file an affidavit on her remaining count because, despite being titled “battery,” the true claim was for medical negligence. The woman responded that she had pled the necessary elements of a medical battery claim—namely, a nonconsensual touching—and that no health care affidavit was required in this case. The Circuit Court of St. Louis County granted summary judgment in favor of the plastic surgeon.


On appeal, the woman argued that her claim was for battery and, therefore, she was not required to file a health care affidavit. Even if she was so required, she contended, the trial court should have dismissed her case without prejudice instead of entering summary judgment.


The Eastern District of the Missouri Court of Appeals, Division Two, affirmed in part and reversed in part. The court held that a health care affidavit was required in this case, but the case should have been dismissed without prejudice.


The court explained that to determine whether a plaintiff was required to file a health care affidavit under the statute it considered two elements. First, whether the relationship between the parties is that of health care provider and recipient. Second, whether the true claim relates solely to the provision of health care services. There was no dispute with regard to the relationship between the parties.


When a plaintiff's true claim was that a defendant failed to appropriately obtain informed consent, a health care affidavit was required. The record before the trial court on the motion for summary judgment demonstrated that—despite alleging that she did not consent—the true nature of the woman’s claim involved the manner of her consent to the abdominoplasty and whether the plastic surgeon deviated from the standard of care in accepting that consent. The woman’s affidavit stated that before the liposuction, she had told the plastic surgeon that she did not want any surgical procedure to remove excess skin because she could not take the extra time off work to heal from any additional surgery. The plastic surgeon testified that the woman had been asleep during the liposuction, but that after she awoke and stood up, the plastic surgeon could see that there was excess skin that needed to be fixed. At that point the woman was awake and talking. Once it was determined that she was alert, the plastic surgeon discussed the possibility of skin recision and the woman verbally consented. The woman’s medical expert testified that the woman was under the influence of the pre-operative medications when and if any discussion occurred regarding the need for abdominoplasty. Thus, she was not aware and alert to make an informed consent. He testified that the possibility of a skin recision should have been discussed before any medication was given and written consent obtained prior to the day of surgery. The true nature of her claim revolved around whether she was in any condition to give informed consent and whether the doctor should have accepted that consent. Therefore, an expert affidavit was necessary.


However, the statute required the trial court to dismiss the action without prejudice, upon motion of the party, if the plaintiff does not file a health care affidavit. The failure to file an affidavit was raised in a motion for summary judgment, which normally requires the court to reach the merits of the case. But, the court reasoned, the trial court clearly did not reach the merits and stated in its order that the motion was being granted for the failure to comply with the health care affidavit statute. In this situation, dismissal without prejudice was the proper remedy even though the issue was raised in a motion for summary judgment.


The Eastern District of the Missouri Court of Appeals, Division Two, affirmed the trial’s dismissal of the complaint, but reversed to the extent that the dismissal was with prejudice.


See: Thomas v. Miller, 2014 WL 2723904 (Mo.App. E.D., June 17, 2014) (not designated for publication).


See also Medical Law Perspectives, September 2012 Report: Cosmetic Surgery Gone Wrong: High Hopes Meet Unexpected Results


See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe