“As with eggs, there is no such thing as a poor doctor; doctors are either good or bad.”
– Russell L. Cecil & Robert F. Leob, Diseases of the Ductless Glands, Textbook of Medicine (9th Ed.), Introduction.
In Missouri, a Plaintiff wishing to file a claim for Medical Malpractice is required under Missouri statute to have a potential expert witness lined up and ready to state that the Defendant doctor was negligent before his/her attorney can take action to file a lawsuit. Without a “legally qualified health care provider” willing to file an affidavit with the court stating:
1) that the medical care Plaintiff received from Defendant doctor failed to live up to the standard of reasonable care for the particular medical procedure or treatment received, and;
2) that the failure to use such reasonable care caused or contributed to cause Plaintiffs injury,
Plaintiffs case will be dismissed by the court far before it ever gets anywhere near a jury.
Mo. Rev. Stat. §538.225 states as follows:
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.
538.225 1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff’s attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.
- As used in this section, the term “legally qualified health care provider” shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.
- The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion.
- A separate affidavit shall be filed for each defendant named in the petition.
- Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days.
- If the plaintiff or his attorney fails to file such affidavit, the court shall, upon motion of any party, dismiss the action against such moving party without prejudice.
- Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one of more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant’s reasonable attorney fees and costs.
Mo. Rev. Stat. §538.225 (2015).
- The Lang Case
Recently, the Court took a pass on determining the constitutionality of Missouri Revised Statute §538.225 in the case of Lang, et. al. v. Goldsworthy, et. al., 2015 WL 5936587 (Mo. banc 2015). In Lang, the Plaintiffs filed a wrongful death action against Dr. Goldsworthy, alleging that his negligent chiropractic treatments resulted in the death of their relative Michael Lang. Id. at 2. In their first Petition, Plaintiffs timely filed a heath care affidavit as required by §538.225, litigated the case for two years, and then voluntarily dismissed the action. Id. Plaintiffs then re-filed their case a second time, but did not attach the health care affidavit to the second filing that they had initially filed with the first Petition. Id. Defendants filed a Motion to Dismiss the second action for failure to file a health care affidavit as required by §538.225. Id. Plaintiffs stated in their response to Defendants’ Motion that they were aware that they had not filed the affidavit with the second petition, but that they were taking the position that §538.225 unconstitutionally barred their access to the courts, violated their right to trial by jury, and constituted an impermissible special law. Id. The cause was dismissed upon Defendants’ Motion without prejudice by the trial court due to Plaintiffs’ failure to file the affidavit within 180 days of filing the second petition. Id. Plaintiffs appealed the trial courts decision challenging the constitutional validity of the statute. Id. Of interest, is that due to the passage of time, and the three year statute of limitations governing wrongful death claims, after the dismissal of the second petition, Plaintiffs were barred by the statute of limitations from re-filing their claims in a third suit. Id. at 4.
On appeal, Plaintiffs alleged that §538.225, deprived them of access to the courts and their right to a jury trial, in violation of article I, sections 14, and 22 of the Missouri Constitution. Lang, 2015 WL5936587, 4. The court quickly determined in its opinion, that this matter could be decided without addressing the constitutional issues raised by the Plaintiffs on appeal. Id. The court noted that neither party had argued that the affidavit filed by Plaintiffs with their first petition failed to meet the requirements of the statute in any way. Id. Had Plaintiffs simply stapled the affidavit they already had in their possession to the second petition, the second petition would not have been dismissed. Id. at 4-5. The court pointed out that Plaintiffs real problem in this case is Mo. Rev. Stat. §537.100 which barred Plaintiffs from filing their claim a third time with the proper attached affidavit. Id. at 5. The court pointed out that §538.225 requires that plaintiffs file an affidavit in every medical negligence action, and makes no exception for a plaintiff who previously filed an affidavit in an identical prior action. Id. at 6. Also Citing Mayes v. St. Luke’s Hosp. of Kansas City, 430 S.W.3d 260, 271-72 (Mo. banc 2014).
The dissent in Lang, agreed with Plaintiffs that the affidavit requirement of §538.225 was in violation of the “open courts” clause of Article I, Section 14 of the Missouri Constitution. Lang, WL 5936587 (Mo. banc 2015). The dissent stated that the affidavit requirement arbitrarily restricted Plaintiffs from pursuing a recognized cause of action seeking compensation for the wrongful death of a loved one. Id. at 8. The dissent had several problems with the court relying on the legislatures assertion that screening out non-meritorious cases as primary justification for dismissal under §538.225. Id. The dissent believes, that not only is this process duplicative of the purpose of the courts which also screen out non-meritorious cases through the pre-trial and trial process, but that the required affidavit imposes considerable practical burdens on injured parties by requiring them to scour the medical community to find a health care provider willing to criticize the actions of his/her colleagues. Id. Often this requires injured parties to incur the costs and delays to seek non-local providers to fulfill the affidavit requirement. Id. In conclusion, the majority position in Lang in essence gives us no answer to the constitutional questions posed by Plaintiffs on appeal.
III. The Mahoney Case
However, oddly enough, the Lang case is not entirely new territory for the Court. The Court has previously addressed some of the arguments in Lang in the case of Mahoney, et. al. v. Doerhoff Surgical Services, Inc., et. al., 807 S.W.2d 503 (Mo. banc 1991). Under the previous incarnation of §538.225, Plaintiffs were required to file a health care affidavit with the Court within 90 days of filing suit against a health care provider for damages for personal injury. Id. at 505. The affidavit had to state that the plaintiffs had the written opinion of a legally qualified health care provider, and state that the Defendants “failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and such failure caused or contributed to cause the damages claimed in the petition.” Id. at 505. In Mahoney, the 90 days passed without the Plaintiffs filing such an affidavit, so the Defendants filed a Motion to Dismiss for lack of timely compliance with the requirements of §538.225. Id. The court sustained the motion by Defendants and dismissed the Plaintiffs suit without prejudice. Id.
Plaintiffs appealed the courts decision asserting that the requirements under §538.225:
- infringed on the rights of trial by jury under Missouri Const. Art I, Section 22(a); and/or
- infringed on access to the Courts as guaranteed by Mo. Const. Art. I, §14; and/or
- violated the principle of separation of powers under Mo. Const., Art. I, §1; and/or
- denied the Plaintiffs the equal protection of the laws and due process of law under the U.S. Constitution, Amendment 14, and Mo. Const. Art. I, §2, §10.
Mahoney, 807 S.W.2d at 506.
The court in Mahoney denied the Plaintiffs’ appeal, and addressed each of their constitutional arguments in turn. The court first noted that §538.225, was enacted by the legislature in response to public concern over the increased cost of health care, and the continued integrity of that system of essential services. Mahoney, 807 S.W.2d at 507. The Court found this to be a legitimate public purpose, which was given weight by the court in assessing any constitutional challenges to the statute. Id. The Court analyzed and dismissed the Plaintiffs’ arguments that §538.225 created a screening process, whereby the merits of the cause must be determined by a health care professional before the Plaintiff can submit the case to a jury. Id. While the court agreed with the parties that the right to trial by jury does apply to a cause of action for medical malpractice, the court went on to point out that the allegations of negligence that were filed by Plaintiffs’ against the Defendants in Mahoney, were the kind of claims that require at trial the aid of expert medical testimony to prove the standard of care had not been met by the Defendant. Id. In short, without such a medical opinion, the Plaintiffs would not be able to submit their claim to a jury anyway. Id. Therefore, it was not §538.225 that was screening out the Plaintiffs’ petition, but their failure to meet the requirement of having expert medical testimony which was simply required by the substantive law of their claim. Id. at 508. The court concluded that dismissing a suit lacking an expert opinion is rationally related to the end sought by the Missouri Legislature, to preserve an adequate system of medical care for the citizens of the state, by preventing medical malpractice claims without merit from going forward and incurring the serious costs that the defense of these suits threaten. Id. at 508. The Court also pointed out that the statute gave the Plaintiff plenty of leeway to get the affidavit filed, and merely dismissed the lawsuit without prejudice should the Plaintiff fail to comply. Id. at 509.
In moving on to address and dismiss the Plaintiffs constitutional arguments regarding right of access to the courts, the Court pointed out some similar arguments as above. Mahoney, 807 S.W.2d at 509. The Court stated that the right of access only means the right to pursue in the courts the causes of action the substantive law recognizes. Id. at 510. Here the substantive law required that the plaintiff who sues for personal injury damages on the theory of health care provider negligence prove by a qualified witness that the defendant deviated from an accepted standard of care. Id. at 510. Thus §538.225 did not deny a fundamental right, but only redesigns the framework of the substantive law to accomplish a rational legislative end. Id.
Next the court turned to the Plaintiffs contention that the determination of a meritorious cause of action is exclusively a judicial function. Mahoney, 807 S.W.2d at 510. The Court points out that this argument is without merit because the dismissal without prejudice that occurs when a Plaintiff neglects to file his health care affidavit with the court, is only a determination by a judge that under the substantive law of the medical malpractice petition the case cannot succeed, i.e. that it is frivolous. Id. In short, it finds that the §538.225 merely aids the court in its inherent function in eliminating from the court system lawsuits that are without merit. Id.
Finally, the court finishes its analysis by reviewing the Plaintiffs’ contention that §538.225 denies Plaintiffs the equal protection under the laws under both the Missouri and United States Constitution. First, the Court holds that §538.225 neither touches a fundamental right nor burdens a suspect class. Mahoney, 807 S.W.2d at 512. Therefore, the court determined that the statute must only show that the classification created by §538.225 is rationally related to a legitimate state interest. Id. It was up to the Plaintiffs in the case to show that the legislative facts upon which the classification was apparently based could not be reasonably conceived to be true. Id. The court determined in this case it was enough to satisfy equal protection that the Missouri legislature could have reasonably decided that the early disposition of frivolous medical malpractice suits, i.e. those that ultimately must be dismissed for want of expert testimony, would help to keep down the costs and availability of health care services. Id. at 513. Thus, the court affirmed the trial courts dismissal of Plaintiffs’ claim for failure to file a health care affidavit in compliance with §538.225.
- Where Are We Now?
It is the basic elements of a medical malpractice claim that seem to make a constitutional argument against the health care affidavit requirement difficult. Because a Plaintiff is required at trial to have an expert medical opinion that the Defendant doctor has failed to live up to the standard of care required by the medical profession in treating the Plaintiff, it makes any argument that Plaintiff is being barred from filing suit without such an affidavit an uphill battle. Technically, Plaintiffs have no case to submit to a jury without such an expert opinion. Counsel for Plaintiffs in a medical malpractice case would do well to simply have a medical expert on board, prior to filing suit.
One could see how §538.225 potentially could have an adverse effect on a potential plaintiff with a valid suit, who brings the claim to the attorney just before the statute of limitations has run out. Although it might be obvious that medical malpractice has occurred, perhaps the attorney cannot obtain an expert medical opinion to support the required health care affidavit either prior to suit being filed or within the 90 days. Should the court fail to give them additional time to find a doctor and file such an affidavit, the claim could be dismissed. This would cause undue delay in bringing the Plaintiffs’ claim as they will have to start all over again with their lawsuit, and can file again only if they are able to get the health care affidavit situation settled in a timely fashion. However, I don’t know that this threat of delay will be enough of a bar to cause the court to intervene.
Even more troubling is the scenario outlined by the dissent in Lang. One can certainly imagine that there are some doctors that are so well respected or have such prestige in their medical community, that it will be difficult to find another medical provider in that field willing to accuse them of committing medical malpractice. The search to find someone to speak out against a medical provider with such standing in a community could be time or cost prohibitive to a potential plaintiff with a valid medical malpractice claim. It is also possible that without being able to conduct extensive discovery, it will be difficult for any medical provider to be able to determine if malpractice did occur. If a case is dismissed due to a lack of an affidavit before enough information can be uncovered for another health care provider to make such a determination, this simple lack of enough information may also prevent a valid medical malpractice claim from being heard by a jury.
It is interesting that the court in Lang, does not reference the Mahoney holding at all in their opinion. It would seem that Mahoney could have easily been cited by the Court to address the constitutional questions brought before the court in Lang, but it was not. Mahoney was cited by both appellant and respondent in their briefs before the court in the Lang case. One can only guess as to why the court did not apply Mahoney to the Lang case. Perhaps, the court does not want to follow the holding in Mahoney, but did not feel the Lang case was in the proper procedural place to overturn that holding. Perhaps the court felt that Lang was distinguishable from Mahoney in some way. One can only guess as to why Mahoney was left out of the Lang decision. But, it would appear that Lang at least leaves the door open to other constitutional challenges to §538.225. In the meantime, Plaintiffs counsel would do well to file their health care affidavits simultaneously with their petitions for medical malpractice if it is at all possible to do so.
 Missouri Revised Section 537.100 (2015) permits a Plaintiff whose cause has been dismissed for whatever reason, to re-file an action within one year of the date of the nonsuit. Lang, 2015 WL5936587, at 9. Plaintiffs used this provision to re-file their cause of action a second time more than a year after the original statute of limitations had expired for their Wrongful Death claim. Id. The court noted that it is not clear whether or not a savings provision like 537.100 can be used more than once by a plaintiff. Id. As the Plaintiffs did not argue this to the court in their appeal, the court declined to make a decision regarding the issue. Id.
 An update adding more requirements to Mo. Rev. Stat. §538.225 was included in the sweep of tort reform that was undertaken by the Missouri Legislature in 2005.
 See Appellants’ Brief, at iv, Lang, et. al. v. Goldsworthy, et. al., 2015 WL 5936587 (Mo. banc 2015) (No. SC94814); See also, Respondent’s Brief, at vii, Lang, et. al. v. Goldsworthy, et. al., 2015 WL 5936587 (Mo. banc 2015) (No. SC94814).