Missouri Supreme Court Rejects Plaintiff’s Argument Regarding Failure to Provide Affidavit of Merit Required for Medical Malpractice Cases

Alfred J. Giudicy appealed the circuit court’s judgment dismissing his medical malpractice case without prejudice after he chose not to file an affidavit of merit within 180 days. The filing deadline is required under § 538.225. Giudicy argued that § 538.225 violates the Missouri Constitution.

It was also contended by Giudicy that the medical providers waived their defense of failure to file an affidavit of merit and that he substantially complied with the statute. The Missouri Supreme Court rejected those arguments and affirmed the circuit court’s judgment.

Section 538.225 serves “to cull at an early stage of litigation suits for negligence damages against health care providers that lack even color of merit” and “protect the public and litigants from the cost of ungrounded medical malpractice claims.” See Mahoney v. Doerhoff Surgical Serves, Inc., 807 S.W. 503, 507 (Mo. Banc 1991). The section also prevents the plaintiff from threatening a medical provider with a groundless claim before settlement in lieu of the high cost of defense.

Giudicy also argued the mandate under § 538.225.6 that “’the court shall, upon motion of any party, dismiss the action’ impermissibly invades the province of the judiciary.” The Supreme Court of Missouri rejected a similar challenge before and reaffirmed that § 538.225 “does not violate the separation of power or principle, despite the mandatory dismissal language.”

Giudicy also argued the medical providers waived the defense of failure to file the affidavit of merit, and Giudicy said that a lack of a § 538.225 affidavit is an affirmative defense that must be raised. “No Missouri case law establishes section 538.225 as an affirmative defense.” “This Court finds section 538.225 is not an affirmative defense that can be waived if not pleaded in an answer.”

Lastly, Giudicy alleged the circuit court erred by not finding he substantially complied with § 538.225.

“Allowing substantial compliance by permitting a plaintiff to file outside the legislature’s designated time frame would infringe on the very purpose of the statute.”

Giudicy v. Mercy Hospitals East, 645 S.W.3d 492 (Mo. Banc 2022).

Kreisman Law Offices has been handling medical malpractice lawsuits, Illinois appeals, wrongful death cases, hospital negligence cases and birth injury lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the negligence of a medical provider for more than 45 years, in and around Chicago, Cook County and its surrounding areas, including Tinley Park, LaGrange, Lombard, Mundelein, Midlothian, Alsip, Bannockburn, Barrington, Calumet City, Hinsdale, Rosemont, Chicago (Little Village, Little Italy, Chinatown, Wrigleyville, Rogers Park, North Lawndale, Pilsen, Pullman, Ashburn Gresham), Wheaton, Joliet, Waukegan, Romeoville and Bolingbrook, Illinois.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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