Austin v. Schiro, Slip Opinion, WD78085 (Mo.App. W.D. May 26, 2015)

The Missouri Court of Appeals, Western District, affirmed a trial court decision dismissing a plaintiff’s medical negligence action, without prejudice, for failure to comply with §538.225, RSMo, the statute requiring a medical malpractice plaintiff to file an affidavit stating plaintiff has obtained a written opinion from a qualified health care provider in support of the claim’s merit.

The plaintiff filed a medical negligence action in 2009 in the Clay County Circuit Court. In 2010, the defendant filed a motion to dismiss based on the plaintiff’s failure to file an affidavit of merit as required by §538.225. Before the court ruled on the motion, plaintiff voluntarily dismissed the lawsuit.

Nearly one year later, in 2011, plaintiff filed a second lawsuit with essentially the same allegations. Ninety days after the second petition was filed, plaintiff’s counsel filed a motion to extend the time for filing a health care affidavit. The motion was never brought before the trial court for a hearing, and the court never entered an order granting an extension of time. Plaintiff later filed a health care affidavit more than 90 days (but less than 180 days) after suit was filed.

The defendant filed a motion to dismiss the petition on the basis that plaintiff did not comply with §538.225, for plaintiff’s failure to timely file the health care affidavit. The court sustained the motion, dismissing the second lawsuit, without prejudice. Plaintiff appealed.

On appeal, plaintiff argued, despite the trial court’s failure to rule on his motion for an extension of time, he nevertheless timely filed the motion, established good cause for doing so, and then filed his health care affidavit within 90 days of the filing of the motion. The appellate court disagreed; finding plaintiff failed to obtain an extension of time from the trial court and failed to file the required affidavit within 90 days of filing the petition. The court noted the language of §538.225 to be unambiguous and mandatory, and the statute states that the court “shall” dismiss the action if a plaintiff fails to timely file an affidavit. So, absent an order granting an extension of time to file the affidavit, the plaintiff was required to file the affidavit within 90 days after the suit was filed. For that reason, the appellate court affirmed the trial court’s order dismissing the petition, without prejudice.

This case is one in a long line of Missouri appellate decisions upholding the health care affidavit requirement for medical negligence actions and strictly construing the unambiguous and mandatory statutory language.