EMAIL TO A COLLEAGUE COMMENT

 

Missouri Affidavit Requirement Did Not Violate Open Courts, Jury Trial


A woman underwent a cholecystectomy, gallbladder removal surgery. The woman’s right hepatic duct was injured during the procedure, causing bile to leak into the surgical field. The woman required additional medical attention and a second surgery to repair the injured duct.

 

The woman filed a medical malpractice action against the surgeon. The complaint alleged that the surgeon negligently performed the gallbladder removal surgery. Additionally, the complaint alleged that the state statute requiring a medical malpractice plaintiff to file an affidavit of merit violated the state constitution by barring access to the courts to pursue a medical malpractice claim. The woman filed no affidavit of merit in support of the complaint.

 

The surgeon filed a motion to dismiss for failure to file an affidavit of merit as required by state law. The Scott County Circuit Court granted the surgeon’s motion to dismiss and dismissed the action with prejudice because the woman failed to file any affidavit in support of her complaint.

 

The Supreme Court of Missouri affirmed. The court held that the statute requiring a medical malpractice plaintiff to file an affidavit of merit did not violate the state’s open courts provision, the woman’s right to trial by jury, or the principle of separation of powers.

 

The statute requiring a medical malpractice plaintiff to file an affidavit of merit did not violate the state’s open courts provision, the woman’s right to trial by jury, or the principle of separation of powers. Originally the statute said a judge “may” dismiss a case for the failure to file an affidavit of merit. The statute was amended so that it stated the judge “shall” dismiss the case if a plaintiff fails to file an affidavit of merit. The court concluded that the change from “may” to “shall” did not affect plaintiffs’ open courts and jury trial rights. The amendment also changed the definition of “legally qualified healthcare providers” to include only those who practice in “substantially the same specialty” as the defendant. The court concluded that this new limitation on who could provide the requisite opinion supporting an affidavit of merit did not impose a stricter burden on the plaintiff than was required to prove a prima facie case of negligence at trial. The court reasoned that in most cases the same experts would qualify under either the affidavit of merit standard or the standard applicable for expert testimony at trial. Nothing in the statute required plaintiffs to prove the entire breach of standard of care and causation with a single expert. Nothing in the statute required every single element of damage claimed be supported in the opinion that formed the basis of the affidavit.

 

The Supreme Court of Missouri affirmed the trial court’s grant of the surgeon’s motion to dismiss with prejudice for failure to file an affidavit of merit support of the complaint.

 

See: Hink v. Helfrich, 2018 WL 2016136 (Mo., May 1, 2018) (not designated for publication).

 

See also Medical Law Perspectives Report: Gut-Wrenching Pain: Liability Risks Related to Gastrointestinal Disorders 

 

 

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