Medical Malpractice Plaintiff Survives Insufficient Health Care Affidavit

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.


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.



Missouri Supreme Court Again Questions Tort Reform

Surgery (Photo credit: Army Medicine)

In a recent decision, the Missouri Supreme Court again questioned the constitutionality of a provision of Missouri tort reform legislation. In Mayes v. St. Luke’s Hospital of Kansas City, the Court was presented with an interesting scenario. The family of Ira Mayes brought an action for wrongful death alleging medical malpractice had killed Ira. They actually filed this case three times. In the first case, plaintiffs filed the health care affidavit required by section section 538.225, RSMo (“health care affidavit”). This statue requires a plaintiff’s attorney to file a health care affidavit within certain time frames swearing the attorney has had the case reviewed by a qualified health care provider and that the health care provider has found the care to be negligent and the cause of the plaintiff’s injuries. Plaintiffs subsequently dismissed the first case without prejudice. Within days, plaintiffs refiled their cause of action (“the second case”). For unknown reasons, plaintiffs did not file their health care affidavits in the second case and, after more than 180 days had passed, defendants moved to dismiss the case on that basis. The Circuit Court of Jackson County granted the motions and dismissed the case without prejudice. Plaintiffs then filed a third case which was eventually dismissed on the basis the statute of limitations had expired. Plaintiffs appealed both the dismissal of the second case and the third case.

In their appeal of the second case, plaintiffs argued that the affidavit of merit statue, 538.225, RSMo, violated their rights under the Missouri Constitution to an open court and a trial by jury. The Supreme Court noted that, to preserve a constitutional issue for appeal, a party must raise it at the first available opportunity and preserve the constitutional question throughout the case for appellate review. In this case, plaintiffs did not raise the constitutional issues in response to the motion to dismiss for failure to file the health care affidavit. As a result, the Supreme Court found that the issues had not been preserved for appeal and affirmed the dismissal of the case.

In doing so, however, the court noted that “Because [the Missouri Supreme Court] has not addressed [the issue of whether the current version of section 538.225, RSMo violates the Missouri Constitution], the plaintiffs present real and substantial constitutional questions.” In making this statement, the Court noted a prior version of section 538.225 was found to be constitutional. However, this prior version of the statute gave the trial court discretion in dismissing a case for failure to file the health care affidavit while the current version makes the dismissal mandatory. The Court seemed to be indicating it would not be bound by rulings on prior versions of the statue and recognized a potential constitutional challenge were the issues to be properly preserved for appeal. The Missouri Supreme Court has struck down other portions of Missouri tort reform in the not too distant pass. Is this a signal it is willing to do it again? We may never know on this issue as it is hard to imagine another factual scenario similar to this one since pretty much no attorney will risk not filing the required health care affidavit.




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