In Lang v. Goldsworthy, a case decided by the Missouri Supreme Court on October 13, 2015, Plaintiffs, consisting of family members who filed a wrongful death action alleging negligent chiropractic services of a health care provider that allegedly caused the death of their relative, unsuccessfully attempted to challenge the constitutionality of Mo. Rev. Stat. § 538.225, generally known as the “health affidavit” statute.

In 2005, the Missouri legislature revised Mo. Rev. Stat. § 538.225 in an effort to reform Missouri’s tort laws. Since 2005, the statute has required a court to dismiss a lawsuit if a plaintiff fails to file the required affidavit with his or her petition. Section 1 of the statute directs a plaintiff, who brings a medical malpractice lawsuit for damages for personal injury or death, to file an affidavit advising the court that the plaintiff has sought and obtained a written opinion from a qualified health care provider regarding the lawsuit. That affidavit must further contain an opinion from the legally qualified health care provider stating its belief that the defendant health care provider breached the applicable standard of care for a reasonably prudent and careful health care provider, resulting in the damage set forth in the plaintiff’s petition. 

In their original lawsuit, Plaintiffs in Lang v. Goldsworthy previously filed the required health care affidavit, but they voluntarily dismissed that case after more than two years of litigation. But curiously, when the Plaintiffs later re-filed the same case in the same court, they failed to attach the health affidavit pursuant to Mo. Rev. Stat. § 538.225. In that second case, Plaintiffs acknowledged their failure to file the affidavit, but challenged the statute as an unconstitutional bar to their access to the courts, a violation of their right to a trial by jury, and as an impermissible special law. The trial court granted the Defendants’ motion to dismiss for failure to file the health care affidavit. Although the trial court dismissed the second case without prejudice, the Plaintiffs were barred from re-filing the case in a third lawsuit in that court due to the running of the three-year statute of limitations for wrongful death claims set forth in the savings provision of Mo. Rev. Stat. § 537.100. Plaintiffs therefore appealed.

On appeal, rather than assessing the constitutional validity of the statute, the Missouri Supreme Court in Lang v. Goldsworthy declined Plaintiffs’ invitation and instead honed in on the real issue before the court: Plaintiffs’ own failure to attach the required health care affidavit to their petition. In a 5-2 opinion, the Court made clear that Plaintiffs could have avoided a dismissal of their second lawsuit by diligently ensuring that they were complying with the law. Two dissenting judges argued that the majority should have addressed the plaintiffs’ constitutional arguments against the statute, in that it restricted their access to the courts to seek compensation for the alleged wrongful death of their family member.

The Supreme Court decision, on its face, appears to clearly put an end to plaintiffs’ claims in this matter. Yet, Plaintiffs’ attorney claims there is still an open door for Plaintiffs to refile the case, on the theory that neither Plaintiffs nor the Court, at the time of dismissal of the second case, knew of any authority preventing Plaintiffs from refiling the case. But it seems highly unlikely that the courts will allow these plaintiffs a third bite at the apple.