538.225. Affidavit by a health care provider certifying merit of case--legally qualified health care provider, defined--content filed, when--failure to file, effect--in camera review, when. - Missouri Statutes

Affidavit by a health care provider certifying merit ofcase--legally qualified health care provider, defined--contentfiled, when--failure to file, effect--in camera review, when.

538.225. 1. In any action against a health care provider for damagesfor personal injury or death on account of the rendering of or failure torender health care services, the plaintiff or the plaintiff's attorneyshall file an affidavit with the court stating that he or she has obtainedthe written opinion of a legally qualified health care provider whichstates that the defendant health care provider failed to use such care as areasonably prudent and careful health care provider would have undersimilar circumstances and that such failure to use such reasonable caredirectly caused or directly contributed to cause the damages claimed in thepetition.

2. As used in this section, the term "legally qualified health careprovider" shall mean a health care provider licensed in this state or anyother state in the same profession as the defendant and either activelypracticing or within five years of retirement from actively practicingsubstantially the same specialty as the defendant.

3. The affidavit shall state the name, address, and qualifications ofsuch health care providers to offer such opinion.

4. A separate affidavit shall be filed for each defendant named inthe petition.

5. Such affidavit shall be filed no later than ninety days after thefiling of the petition unless the court, for good cause shown, orders thatsuch time be extended for a period of time not to exceed an additionalninety days.

6. If the plaintiff or his attorney fails to file such affidavit thecourt shall, upon motion of any party, dismiss the action against suchmoving party without prejudice.

7. Within one hundred eighty days after the filing of the petition,any defendant may file a motion to have the court examine in camera theaforesaid opinion and if the court determines that the opinion fails tomeet the requirements of this section, then the court shall conduct ahearing within thirty days to determine whether there is probable cause tobelieve that one or more qualified and competent health care providers willtestify that the plaintiff was injured due to medical negligence by adefendant. If the court finds that there is no such probable cause, thecourt shall dismiss the petition and hold the plaintiff responsible for thepayment of the defendant's reasonable attorney fees and costs.

(L. 1986 S.B. 663 § 8, A.L. 2005 H.B. 393)

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, RSMo 538.305

(1991) Statute does not violate constitutional right to jury trial or right of access to courts or other constitutional protections when a judgment of dismissal is entered because plaintiff fails to file an affidavit stating he had a health care provider's opinion of merit. Statute's requirement that affidavit must be filed within ninety days of filing a medical malpractice suit is constitutional. Mahoney v. Doerhoff Surgical Service, 807 S.W.2d 503 (Mo.banc).

(1993) Where psychiatric hospital sued former patient for unpaid bills, and patient counterclaimed for false imprisonment, statute requires health care affidavit before bringing action against health care provider for damages for personal injury. Damages for false imprisonment are damages for personal injury within meaning of statute. St. John's Regional Health Center, Inc. v. Windler, 847 S.W.2d 168 (Mo.App.S.D.).

(1995) Damages for libel are damages for personal injury within the meaning of this section. Vitale v. Sandow, 912 S.W.2d 121 (Mo.App.W.D.).

(2000) Strict liability is not applicable to health care providers. Budding v. SSM Healthcare System, 19 S.W.3d 678 (Mo.banc).