A recent Missouri Southern District Court of Appeals ruling allowed a medical malpractice plaintiff to maintain her causes of action even though the health care affidavit of merit did not meet statutory requirements.
Facts of Case
Patricia Caplinger filed a medical malpractice suit against Salim Rahman, M.D. and Salim Rahman, M.D., LLC. Caplinger’s attorney filed an affidavit pursuant to section 538.225, RSMo stating Dr. Ronnie Keith had reviewed the case and opined the defendants failed to use such case as a reasonably prudent and careful health care provider would have under similar circumstances and that the failure caused or contributed to cause Caplinger’s injuries.
Defendant moved the trial court to review the opinion to determine whether the opinion met the requirements of the statute. Specifically, Defendants contended that Dr. Keith did not practice substantially the same specialty as Dr. Rahman as is required by the statute.
After the trial court’s ruling that the affidavit did not meet the statutory requirements, Caplinger’s attorney requested a hearing pursuant to section 538.225.7 to determine whether there was probable cause to believe a qualified health care provider would testify Dr. Rahman’s medical negligence caused Caplinger’s injuries. At the hearing, Caplinger did not call Dr. Keith to testify. Instead, Caplinger called Dr. Thomas Beatty. Dr. Beatty met the statutory requirements of practicing substantially the same specialty as Dr. Rahman.
The Trial Court Ruling
The court found the opinion insufficient. Specifically, the court found Dr. Keith did not practice substantially the same specialty as Dr. Rahman. The court then dismissed the case.
The Ruling on Appeal
The Southern District Court of Appeals held that section 538.225 does not mandate dismissal of the case if the opinion supporting the affidavit does not meet the statutory requirements. Instead, if the court determines there is a deficiency in the expert’s opinion, then a probable cause hearing is required. A deficiency in the opinion includes whether the opinion is that of a legally qualified health care provider.
At the probable cause hearing, the court may hear evidence to determine whether one or more “qualified and competent” health care providers will testify the defendant’s medical malpractice caused plaintiff’s injuries. Of note, the testimony or evidence offered at this hearing does not have to be from the expert named in the affidavit.
Analysis
This case changes what has become a common practice or understanding among medical malpractice attorneys. Specifically, that any deficiency in the affidavit mandates dismissal. Under this opinion, dismissal will occur if the affidavit is not filed on time or does not have the required statutory content.
However, if the opinion supporting the affidavit is insufficient or is not that of a “legally qualified health care provider,” then the court must have a probable cause hearing. When this occurs, the court can take evidence from health care providers other than the one who supported the affidavit. This could allow cases that previously would have been dismissed to survive dismissal if the plaintiff can offer the necessary evidence that one or more qualified and competent health care providers will testify the defendant’s medical malpractice caused plaintiff’s injuries.
The opinion can be found here.