FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason R.
E. SCOTT, J.
medical malpractice plaintiff must obtain an opinion of merit
from a "legally qualified health care provider, "
then file timely notice thereof by affidavit, all in
accordance with § 538.225 procedure. The statute offers an opportunity to
overcome opinion deficiencies (subsection 7), but the notice
requirement (subsection 6) is strictly construed. Unless a
compliant affidavit is timely filed, the case must be
dismissed without prejudice. See, e.g., Lang v.
Goldsworthy, 470 S.W.3d 748 (Mo. banc 2015); Mayes
v. Saint Luke's Hosp., 430 S.W.3d 260 (Mo. banc
2014); Austin v. Schiro, 466 S.W.3d 694 (Mo.App.
attorney obtained an opinion from Dr. Ronnie Keith and timely
filed a notice affidavit in statutory form. Upon Defendant's motion, the trial
court reviewed the opinion and considered further evidence
from Plaintiff, found that Dr. Keith did not practice
substantially the same specialty as Defendant (subsection 2),
deemed this a subsection 6 affidavit defect, and dismissed
the case without prejudice because the notice deadline had
appeals, complaining that Dr. Keith did practice
substantially the same specialty as Defendant, but if not,
subsection 7 governed and did not mandate
review is de novo. Austin, 466 S.W.3d at
696. We deny Plaintiff's first complaint, but agree with
the second and decline to follow Kreutz v. Curators of
Univ. of Missouri, 363 S.W.3d 61 (Mo.App. 2011), to the
extent it suggests otherwise. We reverse the judgment of
dismissal and remand for further proceedings.
538.225's first five subsections establish two requisites
for maintaining a medical malpractice action. In temporal
order, these are:
1. An expert opinion that meets four requirements set by
• a written opinion,
• of a legally qualified health care provider (defined
in subsection 2),
• that the defendant was negligent, and
• such negligence proximately caused the plaintiff's
2. Timely sworn notice that meets the form and timing
requirements of subsections 1 and 3-5:
• an affidavit by the plaintiff or the plaintiff's
• stating that he or she has obtained the aforesaid
• and the expert's name, address, and qualifications
to offer such opinion,
• filed with the court within 90 days after the petition
or a court-granted extension of up to 90 additional days.
6 governs affidavit violations and mandates dismissal without
prejudice if the notice deadline has passed.
under subsection 7, which "governs when the alleged
error is the expert's written opinion,
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 or more qualified and
competent health care providers will testify that the
plaintiff was injured due to medical negligence by a
§ 538.225.7. If the court finds no such probable cause,
it must dismiss the case. Id.
the Same ...